Raguz v Police - [2020] SASC 111

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
RAGUZ v POLICE
[2020] SASC 111
Judgment of The Honourable Justice Bleby
24 June 2020
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - OTHER MATTERS
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - PROPORTIONALITY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - PARITY BETWEEN CO-OFFENDERS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - JUDGE MISTAKEN OR MISLED - PARTICULAR CASES
This is an appeal against a sentence imposed by a Magistrate.
On 29 January 2020, the appellant snatched a gold necklace and bracelet, which had a combined value of $10,198, from Angus & Coote Jewellers. The appellant then got into the passenger’s side of a blue Mitsubishi SUV driven by his co-accused and partner. The car was displaying South Australian registration plates, but a Victorian registration plate was visible from underneath. The appellant pleaded guilty to two counts of theft contrary to s 134 of the Criminal Law Consolidation Act 1935 (SA), which related to the jewellery and registration plates respectively.
The Magistrate sentenced the appellant to a starting point of two years’ imprisonment. Her Honour reduced that by 40 per cent for the appellant’s guilty plea, to a period of one year, two months and two weeks. A non-parole period was fixed at 10 months. The sentence was backdated to commence on 29 January 2020.
The co-offender was sentenced to a starting point of six months’ imprisonment, which was reduced to four months and one week on account of her guilty plea. This was further reduced to four months and one day to reflect the time she had already spent in custody. The Magistrate imposed a partially suspended sentence, which had the effect that at the rising of the court, the co-offender was able to be released from custody.
Held, allowing the appeal on Ground 7.1 insofar as it repeats Ground 5.2, and dismissing the appeal in respect of Grounds 1, 2, 3, 4, 5.1, 5.3 and 6:
1. The head sentence imposed on the appellant by the Magistrate did not offend the principle of proportionality.
2. The head sentence did not offend the principle of parity.
3. The Magistrate did not fail to have regard to the purpose of rehabilitation of the appellant. The secondary sentencing purposes set out in s 4 of the Sentencing Act 2017 (SA) are given content through various provisions of the Sentencing Act, including ss 10 and 11.
4. The head sentence was not manifestly excessive. The non-parole period imposed does not bear anything other than a proportionate relationship with the final head sentence after the discount for the guilty plea.
5. The Magistrate mistakenly attributed to the appellant some 40 further convictions for dishonesty offences and a period of imprisonment in 2013, which was not correct.
6. The sentence imposed on the appellant by the Magistrate is set aside.
7. The appellant is re-sentenced to a starting point of one year and 10 months’ imprisonment. This is reduced to one year, one month and seven days to reflect the appellant’s guilty plea. The non-parole period is set at nine months. The head sentence and non-parole period are backdated to commence on 29 January 2020.
Criminal Law Consolidation Act 1935 (SA) s 134; Sentencing Act 2017 (SA) ss 3, 4, 9, 10, 11, 26, referred to.
Hili v The Queen (2010) 242 CLR 520; House v The King (1936) 55 CLR 499; Neill v Police [1999] SASC 270; R v Hayman [2019] SASCFC 72; Vaiusu v R [2017] NSWCCA 71; Veen v The Queen (1998) 164 CLR 465, discussed.
Police v Chilton (2014) 120 SASR 32; R v Kite (1971) 2 SASR 94; R v Lagana [2012] SASCFC 135; R v Lutze (2014) 121 SASR 144; R v MacGowan (1986) 42 SASR 580; R v Mark [2019] SASCFC 48; The Queen v Morse (1979) 23 SASR 98; The Queen v Roux (No 2) [2015] ACTSC 361, considered.

RAGUZ v POLICE
[2020] SASC 111
Magistrates Appeal: Criminal

BLEBY J: This is an appeal against a sentence imposed by a Magistrate. Upon pleading guilty, the appellant was convicted of two counts of theft contrary to s 134 of the Criminal Law Consolidation Act 1935 (SA) (CLCA). The first count related to the theft of a gold necklace and bracelet, which together were of the value of $10,198, the property of Angus & Coote Jewellers. The second count related to the theft of a set of car registration plates.
The appellant and his co-offender, Ms Merington were partners. They both resided in Victoria. At about 5.00 pm on 29 January 2020, the appellant entered Angus & Coote Jewellers in Rundle Mall and approached a sales assistant. He told her that he was looking for a necklace for his father. The sales assistant showed him a couple of necklaces from the display cabinet and then the appellant asked her to show him a more expensive necklace. The assistant did so. The appellant asked to see the matching bracelet, which the sales assistant also showed him. The appellant asked how much each of them weighed and their value. The assistant said that they were valued at $10,198. At that point, the assistant saw the appellant use a mobile phone to send a text message. Subsequent checks of the mobile phones of both the appellant and Ms Merington showed that at 5.15 pm on that day, the appellant sent a message to Ms Merington which said, ‘Now’. Ms Merington sent a reply which said, ‘In the lane’.
After sending the message, the appellant snatched the necklace and the bracelet from the counter and ran from the store. A witness who was standing at the entrance to Angus & Coote noticed that the appellant was wearing a horizontally striped top and a hat. He saw the appellant go left onto Stephens Place and run towards North Terrace. He saw him get into the passenger’s side of a blue Mitsubishi SUV, which then turned onto North Terrace.
CCTV footage of the incident confirmed the witness’s observations. The camera further showed Ms Merington to be driving the vehicle and that she was wearing a black strap-type top. Barrier cameras at the Myer Centre captured the car stopping at the exit barrier. The car was displaying South Australian registration plates. However, a Victorian registration plate was visible from underneath.
Police conducted checks on the South Australian registration plate. These had been the subject of a reported theft. At about 8.30 am on the same day, the owner of the plates had parked and secured his black Volkswagen Golf in Russell Terrace, Edwardstown. He did not return to the vehicle until about 7.20 pm when he discovered both registration plates to be missing.
Meanwhile, police had received information that the appellant and Ms Merington may be at the Adelaide Airport. Police attended at the airport and found, in the rental carpark returns area, a blue Mitsubishi identical to the vehicle used in the commission of the theft. The vehicle had Victorian registration plates, the front one of which was bent. Police went into the airport terminal and located both the appellant and Ms Merington seated in a domestic terminal check-in area, waiting to board a plane to Victoria. The appellant was wearing the stolen jewellery. Police arrested the appellant and Ms Merington and seized the jewellery.
The appellant and Ms Merington were taken to the Adelaide City Watch House. Their bags were searched and police found a navy and white striped polo shirt and a black strappy dress. They also found a Target receipt from Castle Plaza showing the purchase of two hats and the messages on the mobile phones to which I have already referred.
The Magistrate concluded:[1]
It is plain that the two of you had carefully planned the theft and ensured that the getaway car would be ready to take Mr Raguz away from the area immediately after he had completed the theft.
[1] Remarks on Penalty at 3.
Sentencing of the co-offender
The basis on which the Magistrate sentenced Ms Merington is important to the disposition of this appeal. Ms Merington had no prior convictions and was therefore to be sentenced as a first offender. She is a 50-year-old functional drug addict and had been using methamphetamine ‘on and off for the past 25 years’. She has two adult sons, aged 24 and 25 years old. Her 25-year-old son is a welder who works for Origin Energy in Queensland and, when not working there, lives with Ms Merington in her rental accommodation in Wyndam Vale, Victoria.
Ms Merington’s 24-year-old son lives independently. He has autism and suffers from dyslexia. He is also addicted to the drug ice. Following Ms Merington’s incarceration in South Australia, his drug problems escalated and his behaviour became problematic. A submission was made that he had been stealing, which was causing a great deal of stress to Ms Merington as she was unable to provide him with emotional support.
Ms Merington has a Certificate III in Business Management, Pharmacy Technology and Severe Disability Education. She had previously been in paid employment, including two years at a special school. She had been assaulted by a student at that school and suffered a back injury. She had been unable to return to work and for the previous three years, had relied on a disability support pension due to PTSD. She had, on occasion, sought help in relation to her ongoing drug issues and had been assisted by her parents who had arranged access to rehabilitation services in Victoria.
At sentencing, the Magistrate noted that, having been in custody since her arrest, this was the first time that Ms Merington had been in prison. She had found this particularly confronting, especially as she was away from Victoria and her family connections. She had become very anxious and distressed on account of the difficulties her children were experiencing in Victoria, as well as the fears surrounding the COVID-19 virus. Counsel submitted to the Magistrate that the rent on Ms Merington’s home was not being paid and further time in custody might result in her losing that accommodation.
The Magistrate rejected a submission that Ms Merington’s part in the offences was less serious than that of the appellant. She found it to be a joint enterprise that was carefully planned, pre-meditated and in which Ms Merington played an integral role as getaway driver and liaison with the appellant. The Magistrate found that she was integral to the success of the offences and that she should be sentenced on that basis.
The Magistrate rejected the submission that a simple good behaviour bond would be an appropriate penalty, as that would fail to reflect appropriately the need for general deterrence. Her Honour found that it was necessary to impose a sentence of imprisonment. She recorded convictions on both counts and sentenced her to a single penalty pursuant to s 26 of the Sentencing Act 2017 (SA) (The Sentencing Act). She set a starting point of six months’ imprisonment which she reduced to four months and one week, reflecting the maximum available discount of 30 per cent on account of the guilty plea. She then reduced the sentence to four months and one day to reflect the six days that Ms Merington had spent in custody following her arrest.
Critically, the Magistrate then said:[2]
I have considered whether part of the sentence ought to be suspended on you entering a bond to be of good behaviour. I must say that given the matters I have mentioned I had considered directing you to serve as much as four months imprisonment before releasing you on a bond to be of good behaviour. That said, I have also considered the effect of incarceration on your autistic son in Victoria who obviously relies on you heavily for support. The submission has been made and not challenged that the combination of his autism and ice addiction has led to life is [sic] spiralling downwards without your stabilising presence and support.
[2] Remarks on Penalty at 7-8.
Her Honour then gave express consideration to the decision of Doyle CJ in Neill v Police,[3] where the Chief Justice observed that the effect of a sentence on the family of an offender will not usually provide a basis to reduce the sentence, although there will be cases where there is such a great effect that it can form a principal basis for reduction.[4] The Magistrate continued:[5]
I have carefully considered that case and the relevant line of authority. In your case, I find that your lack of prior history along with the direct impact of your incarceration on your autistic son at a time when Australia is facing the challenge of the COVID-19 virus warrants a more lenient approach then would otherwise be the case. To my mind, any further incarceration at this particular time, will be far more burdensome on you than in ordinary circumstances. The constellation of circumstances in your case requires a merciful approach. For these reasons, I direct that you serve one month and one day imprisonment with the balance of the sentence to be suspended on you entering a bond in the sum of $500 to be of good behaviour for two years.
[3] [1999] SASC 270.
[4] [1999] SASC 270 at [24] (Doyle CJ).
[5] Remarks on Penalty at 8.
The sentence was backdated such that the effect was that at the rising of the Court, Ms Merington was able to be released and return to Victoria once she had completed the paperwork for the bond. In the future event of a breach of that bond, of course, she was liable to serve the balance of the sentence, which would be around three months’ imprisonment.
Sentencing of the appellant
The appellant was burdened by a substantially different history of offending than that of Ms Merington. The Magistrate summarised this long history of dishonesty offences.[6]
[6] Remarks on Penalty at 3-4.
That summary included the following, which are the subject of Grounds 5, 6 and 7 of the Amended Notice of Appeal:[7]
In 2007, you were convicted and sentenced to two years imprisonment for no less than 80 dishonesty offences.
In 2009, you were convicted and sentenced to two years imprisonment for no less than 30 dishonesty offences.
On 10 October 2012 you were sentenced to three years imprisonment with a non‑parole period of two years commencing on 27 June 2012.
In 2013, you were convicted and sentenced to three years imprisonment for no less than 40 dishonesty offences.
In 2014, you were convicted in the Sunshine Magistrates Court for offences of burglary and theft for which you were sentenced to six months imprisonment.
On 29 August 2014 you were sentenced for new offending that occurred while on parole.
[7] Remarks on Penalty at 4.
Her Honour then characterised the appellant’s offending history in the following manner:[8]
It is quite obvious from your record that no sentences imposed by courts, certainly up until 2014, have deterred you from a life of crime primarily relating to very serious theft offences. As at 2014, it would appear that you were not a person who could successfully rehabilitate, however, Mr Deegan submitted that the court should have regard to the gap in recorded convictions between 2014 and 2018. It was submitted that at that point in time you turned your life around. However, there was a relapse in offending and in 2019 you were convicted and sentenced for multiple counts of theft and other offences. Despite the number of offences for which you were sentenced, the Melbourne Magistrates Court saw fit to release you on a Community Corrections Order for a period of 15 months. That court gave you an opportunity to demonstrate your continued rehabilitation. Unfortunately, that has been sullied by the commission of this pre‑meditated jewellery theft.
[8] Remarks on Penalty at 4.
The Magistrate’s account of the appellant’s personal circumstances is not challenged. The appellant is 42 years old. His parents had migrated to Australia from Croatia in 1960. His mother is now aged 77 and his father 86. His father has dementia and can no longer recognise his children. The appellant is one of four siblings, including a twin. One sister died from suicide in 2016. The appellant’s mother has, in consequence, assumed primary care for the appellant’s nieces aged 11 and eight years old, and a nephew who is 23 years old. In 2017, another sister was admitted to hospital with Influenza A, spent time in a coma and required significant rehabilitation. She suffered residual brain damage and lives in a shared care facility with a full-time carer. The appellant had significant involvement in medical decisions with respect to this sister from September 2017 and during 2018.
I note in passing that these tragedies both occurred prior to the appellant engaging in the offending for which he was convicted in 2019, not having offended previously since 2014. However, I have no further detail available about this offending other than that which is contained in the interstate offending history report, which indicates that it occurred during a period from late 2017 to 2019.
The Magistrate recorded that the appellant had been educated to Year 11, that he was a high achiever and played soccer at a high level. He worked in various jobs following leaving school. Between 2016 and 2018 he worked as a steel fabricator for Newform Steel Fabrications.
At sentencing, counsel for the appellant conceded that a term of imprisonment was required. The plea in mitigation was concerned with the length of that sentence in all of the circumstances of the offending and of the appellant. The submission was made that the appellant had stopped using drugs for a period of time, but the various family pressures that he had experienced had led to a relapse into drug use and offending. That submission was made not as an excuse but as an explanation.
The submission was further made that the Court should have regard to the COVID‑19 crisis and the extreme distress that the appellant being separated from his family in Victoria had caused at this time, especially with his mother being left to care for her husband and two young children without the appellant’s support.
The Magistrate found that the only appropriate sentence was an immediate custodial sentence. She recorded convictions on both counts and proceeded to determine a single sentence pursuant to s 26 of the Sentencing Act. She said that she had had regard to the gap in the recorded convictions and the impact of the appellant’s absence from his family during the COVID-19 crisis.
Her Honour set a starting point for the sentence of two years’ imprisonment. She reduced that by the maximum available discount of 40 per cent for his guilty plea, to a period of one year, two months and two weeks. She backdated the sentence to commence on 29 January 2020 and set a non-parole period of 10 months. She found that no good reason existed to fully or partially suspend the sentence.
Her Honour then said the following:[9]
I should mention that based on the established case law, it could be argued that no allowance should have been made in your case for any hardship on your family arising from this offending. Your past criminal record and the seriousness of this particular offence could lead one to conclude that the impact on your family is not sufficiently exceptional to justify any reduction in penalty. Nonetheless, in sentencing you, I consider that the health crisis this country is facing does require a degree of leniency that would otherwise be inappropriate. In your case, the leniency is reflected in the head sentence and the non‑parole period that I have set.
[9] Remarks on Penalty at 8-9.
The appeal

The appellant filed a Notice of Appeal on 9 April 2020. The only ground of appeal articulated was that the head sentence and non-parole period were manifestly excessive. The appeal was listed to proceed on Tuesday, 2 June 2020. By written submissions dated 27 May 2020, the appellant sought the leave of the Court to argue three further grounds expressed as follows:
1That the Learned Sentencing Magistrate erred failing to apply s10(1)(a) of the Sentencing Act 2017 (SA) in that:
1.1 the Court erroneously deployed the prior record of the appellant to impermissibly increase the sentence beyond that which is proportionate to the offences.
2The Learned Sentencing Magistrate erred in failing to apply section 10(1)(b) of the Sentencing Act 2017 (SA).
3The Learned Sentencing Magistrate erred in failing to have regard to the secondary purposes for sentence, in particular the rehabilitation of the defendant.
4 Ground one from original notice of appeal redesignated.
At the commencement of the appeal hearing, counsel for the appellant announced that he had only just realised that morning that there was what he considered to be a significant process error in the sentencing remarks, which indicated that her Honour had proceeded on a misapprehension with respect to the appellant’s offending history. Specifically, contrary to the remarks that I have set out above at paragraph 19, the appellant had not been sentenced for 40, or indeed any dishonesty offences in 2013.
Counsel for the respondent did not oppose the application to amend the Notice of Appeal to include a ground that reflected this complaint. I adjourned the hearing to 5 June 2020. In the meantime, the appellant filed an Amended Notice of Appeal which included the new Grounds 1, 2 and 3, and then also included further Grounds 5, 6 and 7 that were directed to the claimed misapprehension of the appellant’s offender history report.
At the outset of the adjourned hearing, I gave permission for the appellant to amend the Notice of Appeal in those terms.
Ground 1
Section 10(1)(a) of the Sentencing Act requires that a court, in determining a sentence for an offence, must apply the common law concept reflected in the principle of proportionality. Ground 1 complains of a failure to apply this principle, contrary to this sub-section, by reason of the Court’s erroneous deployment of the prior offending history of the appellant. The effect of this impermissible deployment, it is argued, increased the sentence beyond that which was proportionate to the offending.
I had some difficulty initially in isolating the true complaint under this ground. The appellant in his written submissions said:[10]
The gravamen of the complaint in ground one is the manner in which the prior offending history of the appellant has deployed in the sentencing process.
[10] Appellant’s Written Submissions at [16].
In oral submissions, however, counsel confirmed that the complaint was of offence against s 10(1)(a), rather than merely a complaint about the weight given to the appellant’s offending history. To this end, he developed the complaint by submitting, in effect, that the weight that the sentencing Judge had attributed to the appellant’s offender history was such as to overwhelm the concept of proportionality.[11]
[11] T 11.20-25.
The appellant relied in particular on the decision of the High Court in Veen v The Queen (Veen (No 2)).[12] The Court in that case considered the use to which an offender’s criminal history can be put in a sentencing process (this being universally relevant under sentencing legislation). On the relationship between a defendant’s offending history and the concept of proportionality, the plurality said as follows:[13]
There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v. Ottewell. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community’s understanding of what is relevant to the assessment of criminal penalties.
(Footnote omitted)
[12] (1998) 164 CLR 465.
[13] (1998) 164 CLR 465 at 477-478 (Mason CJ, Brennan, Dawson and Toohey JJ).
The respondent submits that this complaint is nothing more than one of the weight attributed to the appellant’s offender history and, as such, discloses no appealable process error. As counsel for the respondent put it, a complaint of too much weight being given to the offender history could, at most, only form part of a submission that there was a manifest error in that the Magistrate reached a sentence which was so unreasonable or plainly unjust or outside the permissible range of sentences for the offender and the offence.[14] Understood in this way, the respondent’s submission is to the effect that the complaint of the weight given to the offender history might be identified as an explanatory integer of an ultimate complaint about manifest excess, but that it did not of itself disclose any error.
[14] Respondent’s Written Submissions at [17], citing R v Lutze (2014) 121 SASR 144 at 153-154; Police v Chilton (2014) 120 SASR 32 at 38.
The decision of the High Court in Veen (No 2) suggests, however, there can be an error to give such weight to an offender history as to lead to a disproportionate penalty.[15] The question is how to give content to that principle without offending the well-established principle that a complaint about the weight given to a factor is not of itself capable of enlivening the appeal court’s authority to intervene. Such a complaint can only ever form part of a submission that there was manifest error.[16]
[15] Veen v The Queen(No 2) (1988) 164 CLR 465 at 477 (Mason CJ, Brennan, Dawson and Toohey JJ).
[16] R v Lutze (2014) 121 SASR 144 at 154, [47] (Vanstone and Parker JJ).
It may be that the appellant’s submission with respect to this ground is intended to go no higher than this, leading to the result that the manifest error is one of disproportionality. That was certainly how I understood counsel’s submission at the hearing of the appeal. Thus, in Vaiusu v R, R A Hulme J said:[17]
To the extent that the applicant complains of insufficient weight having been given to the applicant's subjective case it must be borne in mind that matters of weight are very much in the province of the sentencing judge and the circumstances in which matters of weight will justify appellate intervention are narrowly confined: Yang v R [2012] NSWCCA 49 at [25]. Further, as Button J observed in Hanania v R [2012] NSWCCA 220 at [33], "the only way that one can test whether a factor (to which regard or weight has indeed been given) was considered sufficiently, is by examining the sentence ultimately imposed".
[17] [2017] NSWCCA 71 at [29] (R A Hulme J, Bathurst CJ and Beech-Jones J agreeing).
This does not mean that the appellant’s complaint the subject of Ground 1 is purely a complaint about weight. It complains of a specific error on account of a statutory requirement which he points to as the result of the Magistrate having given excessive weight to the offender history. The distinction may be a fine one but I am satisfied that this is not merely a complaint about the weight afforded to the offender history.
The appellant then seeks to establish this complaint by the manner in which, he submits, the sentencing Judge anchored the sentencing remarks and the sentencing process in the prior record of the appellant. First, he submits that the sentencing remarks contain only one broad reference to ss 9 and 11 of the Sentencing Act, in that the Magistrate simply said that she had had regard to all of the factors contained within those sections.[18] The appellant submits that this statement is ambiguous in that, ‘it could mean that the Learned Sentencing Magistrate considered that all of the relevant considerations provided for the Act are contained within those section[s] or, alternatively, it could mean that the consideration had been given to all considerations within the sections listed that were deemed relevant’.[19]
[18] Remarks on Penalty at 7.
[19] Appellant’s Written Submissions at [23].
I do not consider the sentencing Magistrate’s statement to have been ambiguous. In my view, it is clear from her Honour’s statement that she had had regard to all relevant sentencing considerations.
The appellant then complains that there is no mention in the sentencing remarks of consideration of any of the secondary purposes for sentence which the appellant contends informs the application of the proportionality principle. This is a reference to s 4(1)(a)(i) of the Sentencing Act, which establishes that it is a secondary purpose for sentencing a defendant for an offence to ensure that the defendant is punished for the offending behaviour. The appellant submits that this secondary sentencing purpose works to define the outer limits, both in severity and in leniency, of the concept of proportionality.
Expressed at that level of generality, that submission is probably fairly uncontroversial. However, s 4 of the Sentencing Act is a statement of secondary sentencing purposes, not general principles of sentencing or individual sentencing factors as are set out in ss 10 and 11. As secondary purposes, subordinate to the primary purpose of protecting the safety of the community,[20] these principles are then given effect by, for example, the matters set out in ss 10 and 11. The Sentencing Act also contains many more provisions that give further effect to these secondary sentencing purposes.
[20] Sentencing Act 2017 (SA) ss 3, 9.
It would be an error for a sentencing court not to apply the principle of proportionality in sentencing. To go further, however, and complain that there is no mention in the sentencing remarks of any consideration of the secondary purposes for sentence which the appellant contends informs the application of the proportionality principle, is of no consequence. As I say, those principles are then given content in the matters to which the sentencing Judge must have regard and to which she expressly said that she did have regard.
The appellant then complains that the structure of the sentencing remarks tends to illustrate that the appellant’s offender history was the predominant consideration of the sentencing Magistrate. This is specifically a reference to the fairly dominant account of the appellant’s offending history at pages three to four of the sentencing remarks, before the Magistrate turned to the submissions made by counsel on behalf of both Ms Merington and the appellant.
I do not accept that the structure of the sentencing remarks is demonstrative of any such disproportionate consideration of the appellant’s offender history. The context in which this appears at page three is that her Honour set out the facts of the offending and then turned to some specific matters concerning Ms Merington, including the false version of events that she first gave to police. Her Honour continued to address Ms Merington and noted that to her credit, she had no prior convictions and would be sentenced as a first offender. Her Honour then turned to the appellant’s offending history by way of contrast. This necessarily (and subject to my consideration of Grounds 5, 6 and 7 below) required a reasonable amount of consideration, given its extensive nature.
Finally, the appellant complains that his prior convictions were mentioned in two other portions of the remarks without any reference to the principle of proportionality or the manner in which they were being deployed and that the references to his offender history exceeded references to any other sentencing factors. This much may be true. However, subject to the matters I discuss below, the appellant’s offending history was truly appalling. It was inevitable that this long history of many, many dishonesty offences would be of importance in informing her Honour as to the appropriate sentence. In my view, there was nothing particularly remarkable about her Honour’s treatment of this history, again subject to my consideration of Grounds 5 to 7, below.
Returning to the complaint directed at proportionality, the difficulty that then follows with this ground is that it does not proceed beyond these complaints of weight. What I mean by this is that the ground is not developed to explain why this attribution of weight to the offender history is such as to cause a result that is disproportionate to the offending. The complaint is really one of structure and content of the sentencing remarks. In the circumstances, these are unremarkable.
This, I think, is what lies behind the respondent’s contention that this ground merely complains about the weight given to the offender history. As I say, I am prepared to accept that there is a distinct ground raised. However, the ground is not established. Ground 1 fails.
Ground 2
Section 10(1)(b) of the Sentencing Act requires the court to apply the principle of parity, just as it must apply the principle of proportionality.
This Court has recently reviewed carefully the authorities on the parity principle, both at the stage of sentencing and then when considering a complaint of disparity on appeal:[21]
[21] R v Hayman [2019] SASCFC 72 at [23]-[31] (Nicholson, Lovell and Hinton JJ).
The parity principle
Section 10(1)(b) of the Sentencing Act 2017 (SA) commands sentencing courts to apply the common law parity principle in sentencing subject to the Act and not to the exclusion of any other relevant principle. The common law parity principle and its application in sentencing was comprehensively explained by French CJ, Crennan and Kiefel JJ in Green v The Queen. The rationale for the principle is grounded in the concept of equal justice. French CJ, Crennan and Kiefel JJ explained:
“Equal justice” embodies the norm expressed in the term “equality before the law”. It is an aspect of the rule of law. It was characterised by Kelsen as “the principle of legality, of lawfulness, which is immanent in every legal order”. It has been called “the starting point of all other liberties”. It applies to the interpretation of statutes and thereby to the exercise of statutory powers. It requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen:
Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.
(Emphasis in original)
Consistency in the punishment of offences against the criminal law is “a reflection of the notion of equal justice” and “is a fundamental element in any rational and fair system of criminal justice”. It finds expression in the “parity principle” which requires that like offenders should be treated in a like manner. As with the norm of “equal justice”, which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances.
(Footnotes omitted)
The principle applies as between co-offenders “albeit the limits of that term have not been defined with precision”. It is not necessary that co-offenders be charged with the same offence — “[t]he foundation of the parity principle in the norm of equality before the law requires that its application be governed by considerations of substance rather than form”. That said, practical difficulties in comparing the sentences imposed on two offenders in the same criminal enterprise who have been charged with different crimes can arise, but such difficulties do not exclude the operation or application of the parity principle.
Further, it should not be thought that the comparative exercise is limited to a comparison of respective roles in the execution of a criminal enterprise. In Postiglione v The Queen, Dawson and Gaudron JJ remarked that:
“Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence … it is a question of due proportion between those sentences … being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality”.
They added, a proper comparison of two sentences involves a consideration of all components of the sentence.
Importantly, on appeal:
Because appeals are creatures of statute, the parity principle in appeals against sentence arises in a statutory context. The jurisdictions to entertain such appeals, conferred by statutes on courts of criminal appeal in Australia, are supported by powers to increase or reduce sentences affected by appealable error. In the exercise of those powers in appeals by convicted persons, and subject to the applicable sentencing statutes, a court may “reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co‑offender”. The exercise of the statutory discretion is informed by the common law norm. Gibbs CJ said in Lowe v The Queen: “the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done.” The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise.
A court of criminal appeal deciding an appeal against the severity of a sentence on the ground of unjustified disparity will have regard to the qualitative and discretionary judgments required of the primary judge in drawing distinctions between co-offenders. Where there is a marked disparity between sentences giving rise to the appearance of injustice, it is not a necessary condition of a court of criminal appeal's discretion to intervene that the sentence under appeal is otherwise excessive. Disparity can be an indicator of appealable error. It is also correct, as Mason J said in Lowe, that logic and reality combine to favour the proposition that discrepancy is a ground for intervention in itself. Unjustifiable disparity is an infringement of the equal justice norm. It is appealable error, although it may not always lead to an appeal being allowed. If an appeal is allowed on the ground of disparity, a court of criminal appeal in re-sentencing is not required to achieve identity of punishment. It must have regard to the sentence imposed on the co‑offender and give it appropriate weight. In such a case, an appeal to this Court on the question whether a disparity identified in a court of criminal appeal was unjustifiable and called for intervention by that court would also involve review of a qualitative and discretionary judgment.
(Footnotes omitted.)
In R v Lagana, White J, with whom Vanstone J agreed, observed that disparity between sentences does not of itself mean that an appeal must be allowed. He said:
The effect of an unjustifiable disparity as enlivening a discretion, but not an obligation, in the appellate court to intervene, has been recognised in a number of the earlier authorities. See, for example, Lowe v The Queen; R v MacGowan; Wakely v Police and R v McIvor. However, as King CJ indicated in R v MacGowan, in the absence of strong countervailing considerations the appellate court will interfere to eliminate marked disparities which cannot be justified in the circumstances of the case.
(Footnotes omitted.)
White J noted that in Green v The Queen the High Court did not express a concluded view whether, in the exercise of the discretion, a Court of Criminal Appeal may reduce a sentence to an inadequate level to account for parity. In Lowe v The Queen three justices of the High Court answered that question in the affirmative. In Green v The Queen French CJ, Crennan and Kiefel JJ said:
… the existence of a discretion, where unjustified disparity is shown, to reduce a co-offender’s sentence to one which is inadequate does not amount to an obligation to do so. Certainly, the discretion of the Court of Criminal Appeal to reduce a sentence to a less than adequate level would not require it to consider reducing the sentence to a less than adequate level which would be, as Street CJ put it in R v Draper, “an affront to the proper administration of justice”. Moreover, if the relevant sentencing legislation, on its proper construction, does not permit an inadequate sentence to be imposed, there can be no discretion on an appeal to impose one. Whether or not the discretion to reduce a sentence to an inadequate level is available, marked and unjustified disparity may be mitigated by reduction of the sentence appealed against to a level which, although lower, is still within the range of appropriate sentences.
(Footnotes omitted.)
It is important to observe, as did White J in R v Lagana, that in the present case the sentencing discretion was to be exercised having regard to the need to ensure that the offender is adequately punished for his or her offending. White J also referred to King CJ in R v MacGowan who said:
…The lower sentence may be so inadequate that to establish parity may be felt to compound the error in a way which would be unacceptable to the public conscience. The sense of grievance experienced by the offender may have to be tolerated in the public interest...
And to Bray CJ, Hogarth J and Sangster AJ in R v Kite who said:
…the mere fact that one convicted person has received too light a sentence is no reason why another convicted person should receive similar treatment. If there is excessive disparity, it does not follow that the one with the heavier sentence was treated too severely; it may be that the one with the lighter sentence was treated too leniently. Often in these cases the disparity should ideally be remedied by increasing the sentence of the one, rather than by reducing the sentence of the other. But we can only deal with the appeal before us. We have no power to interfere with the sentence imposed on Beattie. That sentence is not before us. If the applicant was treated justly he has no right to complain if someone else was treated more leniently than he deserved.
(Footnotes omitted)

The co-offender, Ms Merington, was sentenced on the basis of a starting point of six months’ imprisonment. The sentencing Judge reduced that to four months and one week to reflect the maximum discount available of 30 per cent. She further reduced the sentence to four months and one day to reflect time already spent in custody. Her Honour then gave consideration to the question of suspending part of the sentence. I have set out that consideration above.
Her Honour found that the ‘constellation of circumstances’ in the case of Ms Merington required a merciful approach. She directed that Ms Merington serve one month and one day of imprisonment with the balance of the sentence to be suspended on her entering a bond in the sum of $500 to be of good behaviour for two years. The effect was that upon entering into the bond, Ms Merington was to be released forthwith.
By contrast, as I have noted, the starting point for the sentence of the appellant was two years’ imprisonment. That was reduced to one year, two months and two weeks to reflect the maximum available discount of 40 per cent for the plea. A non-parole period of 10 months was imposed. Her Honour found there was no good reason to suspend the sentence wholly or in part. Her Honour did consider that the COVID-19 health crisis did require a degree of leniency that ‘would otherwise be inappropriate’. I take this to be a reference in particular to the appellant’s family circumstances. However, her Honour held that the leniency was reflected in the head sentence and the non-parole period.
The complaint of disparity starts, understandably, with the observation that each of the appellant and Ms Merington were charged with the same offences arising out of the same circumstances. The Magistrate found that the offending was part of a joint enterprise and that Ms Merington was integral to the success of the offences and should be sentenced as such. That is to say, her Honour rejected the submission that Ms Merington’s part in the offences was less serious than that of the appellant.
In accordance with the exposition of the principles of parity set out above, appellate consideration of the sentence starts from that basis of equal offending.
The appellant submitted that there was some similarity between the personal circumstances of both the co-offender and himself, in that each was from interstate and had family commitments in their home state. The appellant had certain commitments to his parents in circumstances where his father is suffering from dementia to a significant extent and, as a result of the death of his sister, the appellant’s aged mother has significant ongoing responsibility for the sister’s two young children.
Ms Merington, on the other hand, had commitments to her adult son ‘whose functioning was attended by some disability in the form of autism’.[22] The appellant further pointed to the fact that both offenders suffered from drug addiction and each had pleaded guilty at an early stage. Each was sentenced during the course of the COVID-19 epidemic, which restricted free movement between South Australia and Victoria, a matter not insignificant in the context of the appellant’s family.
[22] Appellant’s Written Submissions at [33].
As I have observed, the sentencing Magistrate took these matters into account. Expressed at the level of generality recited above, it might be thought that there was indeed little difference between the personal circumstances of each offender. However, the question of parity requires more detailed consideration.
The respondent teased out the differences between the personal circumstances of each offender. With respect to the personal health of each, the respondent submits, and the sentencing Magistrate took into account,[23] that Ms Merington had suffered a back injury and PTSD as a result of an assault. She was consequently on a disability support pension and was at risk of losing her rental accommodation if incarcerated long term. Comparable considerations did not apply to the appellant.
[23] Remarks on Penalty at 5.
With respect to the family circumstances of each, the sentencing Magistrate took into account the matters I have identified above. Her Honour referred to these factors in announcing that she had accorded a greater degree of leniency than might otherwise be appropriate.
The Magistrate unquestionably extended greater leniency to Ms Merington. Ms Merington’s son has autism and dyslexia. There is no further information available on the file as to the degree or manifestation of his autism. Nevertheless, he is also addicted to Ice, had started stealing and relies heavily upon Ms Merington. His life was spiralling downwards without her stabilising presence and support. That circumstance was exacerbated in the course of the current COVID-19 pandemic.
As the respondent further submitted, the Magistrate observed that the appellant had spent considerable periods in custody for various dishonesty offences and that this did not appear to have deterred him from offending in the same manner.[24] The Magistrate did note that this was the case at least until 2014 when there was no further offending until the appellant was convicted and sentenced in 2019 for multiple counts of theft and other offences. With respect to Ms Merington, on the other hand, her Honour noted that this was the first time she had ever been in prison and that she had found the experience particularly confronting.
[24] Remarks on Penalty at 3-4.
The relative antecedents of each offender are, of course, marked in their difference. As counsel for the respondent encapsulated the appellant’s offender history in terms that were no less startling for their economy of expression:[25]
Indeed, since 1998 he has accumulated 88 convictions for burglary. Three attempted burglaries. 112 convictions for theft. Four attempted thefts. Nine convictions for going equipped to steal or cheat. 19 convictions for other offences of deception. And convictions for misusing numberplates [sic].
He's also been sentenced for drug offences, traffic related offences, unlawfully entering premises, resisting police, there are multiple breaches of bonds and community-based and intensive corrections orders, breaches of bail, and an intervention order, and an escape from lawful custody.
[25] T 28.7-18.
The appellant accepted that it was necessary that there be some difference in sentencing on account of the respective antecedents. He submitted further, however, that the impact of that factor ‘is somewhat limited’ on account of the gap in offending after 2014. In that regard, he focused on the disparity between the starting points, being 18 months.
There is no question that given the Magistrate’s finding that each was equally culpable for the offence, this difference in starting points was considerable. Further, there is an argument that the appellant’s sentence was relatively harsh in all of the circumstances. In addition to that, the Magistrate relied on a ‘constellation of circumstances’ leading to a particularly merciful approach to Ms Merington.
The combination of Ms Merington’s lack of prior offences and particularly difficult personal circumstances caused the sentencing Magistrate to sentence her quite mercifully. I am not prepared, however, to conclude that the sentence imposed on Ms Merington was inadequate, such that to reduce the appellant’s sentence to establish parity would compound any error.[26] I would not regard Ms Merington’s low sentence to be a bar to appellate intervention in that sense.
[26] Compare R v Kite (1971) 2 SASR 94 at 96; R v Lagana [2012] SASCFC 135 at [54]-[56]; R v MacGowan (1986) 42 SASR 580 at 583 (King CJ).
Rather, while the distinction in the sentences may push towards the outer boundaries of what might be accepted as falling within the principle of parity, in all of the circumstances I do not consider that the principle of parity is offended. The appellant’s argument for disparity understates to a considerable degree the relevant differences between the personal circumstances of Ms Merington and himself, as well as the necessary impact of his offender history. Ground 2 fails.
Ground 3
It is a further secondary sentencing purpose in the Sentencing Act to promote the rehabilitation of the defendant: s 4(1)(e). The essence of the appellant’s complaint in Ground 3 lies in the Magistrate’s express statement that she had regard to all of the relevant considerations contained in ss 9 to 11 of the Sentencing Act.[27] The appellant submits that this is highly suggestive of error.
[27] Remarks on Penalty at 7.
While the appellant accepted there is no requirement for a magistrate to refer to all of the factors which have turned their mind, he submitted that this phrasing reveals an erroneous exclusion of relevant factors from consideration, including the promotion of rehabilitation of a defendant as provided for in s 4(1)(e). To this end, he submits that where it was apparently submitted on sentencing that credit ought to be given for the break in offending of four years or more, it was likely that this was directed towards the Court considering the positive impact on the sentence of a period of demonstrated rehabilitation. Further, it was likely that the submission was made to alert the Court to the interruption that this sentence may place on his rehabilitation.
The appellant then submits that while the Magistrate did refer to the gap in the offending history, there was no reason to infer that this was considered through the prism of the secondary purpose for sentence of promoting the rehabilitation of the appellant.
This ground is misconceived. As I have already observed, the secondary sentencing purposes set out in s 4 are given content through various provisions of the Sentencing Act, including ss 10 and 11. Thus, by taking into account, for example, prospects of rehabilitation, the likelihood of the defendant reoffending, and the defendant’s age, physical and mental condition, the Court is taking into account matters that serve the statutory purpose of promoting the defendant’s rehabilitation. It cannot be necessary for a sentencing Judge to expressly give reference to each of the secondary sentencing purposes in s 4 of the Sentencing Act in these circumstances.
The appellant accepted that it would not be necessary to make specific reference to most of the secondary sentencing purposes. However, he submitted that the rehabilitation of a defendant sits in a slightly different category, and would need express consideration. It does not need translating into the factors found in ss 9, 10 and 11.
Counsel was unable to provide me with any authority for that proposition. I do not accept it. Section 4 is concerned with the expression of legislative purpose. Sections 9, 10 and 11, among other sections, are directed to implementing those purposes. Section 4(1)(e) is in no special category in that regard. Ground 3 fails.
Ground 4
The nature of a complaint of manifest excess is well understood. It is a complaint of outcome error of the kind described in House v The King.[28] In Hili v The Queen, the plurality said:[29]
As was said in Dinsdale v The Queen, “[m]anifest inadequacy of sentence, like manifest excess, is a conclusion”. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate “is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases”. Rather, as the plurality went on to say in Wong, “[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons”. …
(Footnotes omitted)
[28] (1936) 55 CLR 499 at 505.
[29] (2010) 242 CLR 520 at 538-539, [59] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
The ‘circumstances’ referred to by the court include the maximum sentence prescribed, the standards of sentencing that are customarily observed for offences of that nature, the seriousness of the offence committed when compared with others of the same nature and the personal circumstances of the offender.[30]
[30] The Queen v Morse (1979) 23 SASR 98, as cited in R v Mark [2019] SASCFC 48 at [19] (Stanley J, Peek and Doyle JJ agreeing).
The appellant identified the following factors as being ‘most significant’:[31]
[31] Appellant’s Written Submissions at [47].
47.1. The fact the offending was not violent in nature, no weapons used, nor was there any physical harm to persons or significant damage to property;
47.2. That the property was quickly recovered;
47.3. The significant decrease in frequency and seriousness of offending conduct, including significant periods of demonstrated rehabilitation;
47.4. The family commitments of the appellant and the fact that all of his family reside interstate;
47.5. The plea of guilty at a point which attracted the greatest possible statutory discount and the consequent implied contrition and remorse; and
47.6. The undue weight placed upon the appellants prior criminal offending by the Learned Sentencing Magistrate.
Counsel for the respondent pointed to a number of factors which in her submission made it apparent that no conclusion of manifest excess could be drawn. The maximum penalty for an offence contrary to s 134 of the CLCA is 10 years’ imprisonment. There is no tariff or sentencing standard with respect to the offence of theft. This reflects the diversity of circumstances in which that offence is committed. Nonetheless, dishonesty offences are a blight on the community. General deterrence and protection of the public are of particular importance. The theft of number plates tends to undermine the regulatory scheme of registration of vehicles.[32]
[32] See, e.g., The Queen v Roux (No 2) [2015] ACTSC 361 at [80].
Further, the jewellery was of significant value. The thefts were carefully organised. The theft of the numberplates was occasioned in order to evade detection in respect of the theft of the jewellery. The appellant and Ms Merington were only detected because of quick and competent police work. On the other hand, there was no violence involved or use of weapons.
The appellant is 42 years old. There is nothing particularly remarkable about his personal circumstances or upbringing and no evidence about his physical or mental health. His antecedent history is considerable. On any view, personal deterrence looms large. That is not to say that he is to be sentenced twice for that prior offending. However, it is appropriate to attach significant weight to his criminal history in the circumstances, especially given that, in large part, it comprises a long history of dishonesty offences.
It is also relevant to take into account the break between 2014 and 2017. This break coincided with the tragedies in the appellant’s personal life, following which he recommenced offending. A submission was made at sentencing by way of at least partial explanation, but not excuse, that his recommencing of offending was to some degree due to the pressures he was suffering as a result.
As I have already indicated, I regard the sentence in all of the circumstances as being at the high end of available sentences. However, I am not persuaded that the starting point of two years’ imprisonment was manifestly excessive or that the non‑parole period bears anything other than a proportionate relationship with the final head sentence after the discount for the plea of guilty. Ground 4 fails.
Grounds 5, 6 and 7
Grounds 5, 6 and 7 are as follows:
5.The Learned Sentencing Magistrate erred in failing to have regard to a relevant consideration, namely the appellant’s criminal antecedents.
5.1    The Learned Sentencing Magistrate misapprehended the antecedents such as to erroneously consider that the appellant had been convicted and sentenced to a term of imprisonment of two years for no less than 80 dishonesty offences in 2007;
5.2    The Learned Sentencing Magistrate misapprehended the antecedents such as to erroneously attribute to the appellant, a serious of 40 dishonesty offences and a term of imprisonment attaching thereto of three years, neither of which existed;
5.3    The Learned Sentenced Magistrate misapprehended the antecedents such as to erroneously separate offending in 2014 from the sentence imposed in relation thereto, such as to have considered the offences and the sentence twice.
6.The Learned Sentencing Magistrate erred in having regard to an irrelevant consideration, namely criminal antecedents not applicable to the appellant.
6.1    See particulars at [5.1]-[5.3] above.
7.The Learned Sentencing Magistrate erred in mistaking facts relevant to the exercise of the sentencing discretion namely, the nature and extent of the appellant’s criminal antecedents.
7.1    See particulars at [5.1]-[5.3] above.
These three grounds are essentially different methods of characterising what are said to be the same errors. Each particular to Ground 5, which is repeated in Grounds 6 and 7, is a complaint about misapprehending the appellant’s antecedents. Within the framework of the description of process errors that the High Court set out in House v The King,[33] the complaint is one of mistaking the facts. That is to say, the proper characterisation of the complaint is that in Ground 7, as particularised by Grounds 5.1‑5.3.
[33] (1936) 55 CLR 499 at 505.
Ground 5.1 refers to the statement by the Magistrate with respect to the dishonesty offences in 2007. It complains that on the face of the South Australia Police offender history report, rather than ‘not less than 80 dishonesty offences’, the record shows that the relevant term of imprisonment was imposed for 74 offences which could be classed as dishonesty offences. There is then a further entry of 11 counts of theft. The antecedent report, while reflecting convictions having been imposed for these counts, does not, on its face, appear to have had those offences incorporated in the period of imprisonment, possibly suggesting that they were not serious enough to so warrant.
It appears, however, that the Magistrate had a different document before her, being the results of a National Police Reference System Search relating specifically to the appellant’s Victorian criminal history. That document does tend to indicate that the 11 counts of theft were included for the purposes of the imposition of the relevant term of imprisonment.
Counsel for the appellant only became aware of this document shortly before the hearing on the appeal. He readily conceded that this document would tend to suggest that Ground 5.1 should fail. This concession was appropriately made. Having regard to the Victorian document, I do not think that there is any basis for characterising as inaccurate her Honour’s description of the appellant having been sentenced to two years’ imprisonment for not less than 80 dishonesty offences in 2007. Ground 5.1 fails.
Ground 5.3 relates to the apparent separation by the Magistrate of the description of the offending in 2014, as I have set out above at paragraph 19. The appellant submits that it is clear from the antecedent report that he was sentenced to a term of imprisonment for six months for offences which included burglary and a theft. While the sentencing remarks reflect this offending accurately, he submits that they are apt to convey that there was further offending the subject of a separate sentencing process in that year. He was only sentenced once in 2014.
I have given careful consideration to this splitting of the account of the 2014 sentences into two paragraphs. I think it is probably fair to say, with respect, that these paragraphs carry an infelicity of expression. There is a temptation, at least, to read them as sentencing for two separate sets of offending. However, her Honour does not suggest that there was some further term of imprisonment. Further, the second paragraph merely records the fact that the sentencing was for offending that had occurred while on parole.

In those circumstances, I think it is tolerably clear that the second paragraph is merely making an observation about the egregiousness of the offending for which the appellant was convicted and sentenced in 2014. I am not persuaded that this ground is established.
Ground 5.2 is a different matter. This relates to the account of the appellant’s offender history set out at paragraph 19, above, as it relates to October 2012 and 2013. However, the only conviction in 2013 was for contravening a family violence interim intervention order. The appellant was convicted and sentenced to two months’ imprisonment on this account, concurrent on the imprisonment term to which he was already subject. The Magistrate’s statement that in 2013 he was convicted and sentenced to three years’ imprisonment for no less than 40 dishonesty offences is not correct.
The respondent submits that these two paragraphs are similar in structure to the paragraphs concerning the 2014 offending. The intention of the subsequent paragraph is to draw attention to the fact that the appellant received the sentence of three years for ‘not less than 40 dishonesty offences’, as an exposition of the paragraph immediately preceding it.
There is some force in this submission. It would be consistent with the approach taken in respect of 2014. I also accept that it is possible that this was the Magistrate’s intention.
However, if that was the Magistrate’s intention, I think that the infelicity of expression would be stretched beyond breaking point. In the first of the two paragraphs, the Magistrate refers to the specific date of 10 October 2012. In the second paragraph she goes on to refer to 2013. This is the reverse order of dates that occurred in respect of the 2014 paragraphs, where the first paragraph is a general reference to 2014 and the second paragraph is a specific reference to the sentencing date. To my reading, the structuring with respect to 2012-2013 tends to connote more strongly a sequence of separate events.
Secondly, both paragraphs referring to 2012 and 2013 refer to sentences of three years’ imprisonment. In the case of the 2014 paragraphs, only the first paragraph refers to a term of imprisonment.
The one aspect of the structure that tends to support the respondent’s submission is that only the paragraph relating to 2013 refers to the 40 dishonesty offences. The paragraph relating to 2012 does not refer to the offences for which the sentence was imposed. The counterweight to this observation is that this single reference is with respect to an account of offending in 2013, not 2012.
As I say, there is some objective support for the proposition that these two paragraphs were intended to be read together and that the reference to 2013 was a slip. However, unlike the paragraphs relating to 2014, I cannot be confident that this is so. The content and the structure of the paragraphs point strongly to a mistaken doubling up of the account of terms of imprisonment imposed on the appellant. The appellant is entitled to have confidence about the basis upon which he is being sentenced. I am not prepared to accept that this was merely an infelicitous expression of the true position. In my view, Ground 5.2 is established.
The respondent submitted that in the event that a process error of this nature was established, it would not warrant altering the sentence ultimately imposed by the learned sentencing Magistrate. Counsel submitted that the sentence imposed was still within the sentencing Court’s discretion and was the right sentence notwithstanding any process error that might be found by the Court in respect of Grounds 5 to 7.
The appellant’s history of offending is quite appalling. I have summarised it above. However, the particular error that I have found established related to 2013. Putting to one side, but by no means ignoring, the 2013 offence of contravening a family violence interim intervention order, the appellant was sentenced for the string of dishonesty offences in October 2012. He was then sentenced for burglary, theft and failing to stop a motor vehicle on request in August 2014, which can only have been shortly after his release on parole in respect of the 2012 offending.
There was then a break of over three years. If a further 40 offences in 2013 are then added in erroneously, that changes considerably the complexion of the latter‑day offending. That is so notwithstanding the much earlier history. While I accept the force of the submission by counsel for the respondent that the appellant’s entire offender history is truly appalling, I am not satisfied that this error as I have characterised it would not or should not have affected the sentence imposed by the learned sentencing Magistrate.
I allow the appeal on Ground 7.1 of the Amended Notice of Appeal insofar as it repeats Ground 5.2. In my view, it is necessary to set aside the sentence imposed and to resentence the appellant.
Resentencing
In taking into account all of the matters relied upon by the sentencing Magistrate, having regard in particular to the appellant’s offender history (and specifically disregarding that which I have considered to be in error) like the learned sentencing Magistrate, I find that the only appropriate sentence is an immediate custodial sentence. It is appropriate to impose a single penalty pursuant to s 26 of the Sentencing Act. In my view, an appropriate starting point is one year and 10 months’ imprisonment. I reduce that sentence to one year, one month and seven days to reflect the maximum available discount of 40 per cent for the plea. I set a non-parole period of nine months. The head sentence and non-parole period are backdated to commence on 29 January 2020.