Size v The King - [2024] SASCA 122

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
SIZE v THE KING
[2024] SASCA 122
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey and the Honourable Justice Stein)
16 October 2024
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
The appellant sought permission to appeal against sentence on the basis that the sentence was manifestly excessive because the sentencing judge refused to suspend the sentence.
The appellant pleaded guilty to theft contrary to s 134(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA) and was convicted following a trial by judge alone of attempted aggravated robbery contrary to ss 137(1) and 270A of the CLCA. He was sentenced to a head sentence of three years and three months’ imprisonment, and a non-parole period of one year and four months was fixed.
The appellant submitted that the sentencing judge erred in failing to find good reason to suspend the sentence due to:
1.the appellant’s youth;
2.the appellant’s lack of prior offending;
3.the appellant’s drug addiction as a product of social disadvantage; and
4.the nature and gravity of the offending.

HELD (the Court) granting an extension of time to file the appeal and permission to appeal but dismissing the appeal:
1.It is necessary to do more than demonstrate that it was open to the sentencing judge to suspend the sentence of imprisonment, and that other judges would have suspended the sentence in the circumstances of this case.
2.Indeed, it is not sufficient for this Court to conclude that it may have come to a different decision, or even that a different decision may have been preferable.
3.It was proper for the sentencing judge to consider the seriousness of the offending, which was brazen and involved some planning and a knife with vulnerable victims (however brief and inept it may have been), as well as the appellant’s uncertain rehabilitation prospects.
4.Whilst it is reasonably arguable that the refusal to suspend involved an error in the exercise of the broad sentencing discretion reposed in the sentencing judge, the appeal should be dismissed. It was open to the sentencing judge to proceed as she did.

Criminal Law Consolidation Act 1935 (SA) ss 134, 137 and 270A; Criminal Procedure Act 1921 (SA) s 157; Sentencing Act 2017 (SA) s 96, referred to.
Arnold v Samuels (1972) 3 SASR 585; Bugmy v The Queen (2013) 249 CLR 571; Elliott v Harris (No 2) (1976) 13 SASR 516; Hackett v The Queen [2021] SASCA 32; Hili v The Queen (2010) 242 CLR 520; House v The King (1936) 55 CLR 499; Kentwell v The Queen (2014) 252 CLR 601; Lee v Western Australia [2022] WASCA 137; Markarian v The Queen (2005) 228 CLR 357; Millwood v The King [2024] SASCA 84; Rankin (A Pseudonym) v The King [2024] SASCA 112; R v Betts [2011] SASCFC 27; R v Gannon (2012) 113 SASR 1; R v Hosking [2017] SASCFC 50; R v Jongewaard [2009] SASC 346; R v Kruger (1977) 17 SASR 214; R v Lutze (2014) 121 SASR 144; R v O’Toole [2013] SASCFC 18; R v Osenkowski (1982) 30 SASR 212; R v Perry [2022] SASCA 127; R v Pham [2014] SASCFC 95; R v Place (2002) 81 SASR 395; R v Schultz [2010] SASCFC 47; R v Size [2023] SADC 153; R v Thompson [2021] SASCA 40; Teasdale v Police [2022] SASC 64; Wallace v The King [2023] SASCA 127; Wessling v Police (2004) 88 SASR 57; Wong v The Queen (2001) 207 CLR 584, considered.

SIZE v THE KING
[2024] SASCA 122
Court of Appeal - Criminal: Livesey P and Stein AJA
THE COURT (ex tempore):
Introduction

This is an application for permission to appeal against sentence pursuant to s 157(1)(a)(iii) of the Criminal Procedure Act 1921 (SA).
The appellant contends that his sentence is manifestly excessive due to the failure by the sentencing judge to suspend the sentence of imprisonment.
On the day of his trial, the appellant pleaded guilty to theft, contrary to s 134(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA), for which the maximum penalty was imprisonment for 10 years.
Following the trial by judge alone,[1] on 9 November 2023 the appellant was convicted of attempted aggravated robbery, contrary to ss 137(1) and 270A of the CLCA, for which the maximum penalty was imprisonment for 12 years. The circumstances of aggravation were the threatened use of force with an offensive weapon, being a knife.
[1] R v Size [2023] SADC 153.
On 7 February 2024 the sentencing judge sentenced the appellant to a head sentence of three years and three months’ imprisonment, and a non‑parole period of one year and four months was fixed.[2]
[2] The sentencing judge commenced with a sentence of one month for the theft, and a sentence of three years and nine months for the attempted aggravated robbery. The sentence of one month was reduced by five percent for the plea of guilty to 29 days. Her Honour ordered that the penalty be served concurrently with the sentence of attempted aggravated robbery because, although it was a separate offence, it was part of a course of conduct which was close in time against a background of drug abuse. The sentencing judge fixed a non‑parole period of one year and 10 months having regard to the need to reflect “the minimum portion of the head sentence to be served” and the need for an extended period on parole to assist with rehabilitation. A period of six months was deducted to reflect 10 days spent in custody and 11 months and three days spent on home detention bail. See the sentencing remarks, pages 7 and 8.
The application for permission to appeal was lodged out of time on 1 August 2024, after the appellant was sentenced on 7 February 2024. The delay has been satisfactorily explained.[3]
[3] Affidavit of Mr Blake made on 1 August 2024, AB page 5. The affidavit explains that the delay was not caused by the applicant but by changes in staffing and work commitments at the Legal Services Commission of SA.
For the following reasons, whilst an extension of time and permission to appeal should be granted, the appeal must be dismissed.
The circumstances of the offending
At around 11.30 pm on 24 November 2021, the appellant rode his bike to an X Convenience store in Klemzig. The appellant was wearing a bike helmet and a black face covering, as well as a “hoodie” with the hood over his head. The effect was to obscure the appellant’s face below his eyes.
The appellant entered the store after taking care to allow a woman to go in first. He waited until she had been served and left. The appellant then approached the counter and faced Mr Dunne, who was on his first shift. Between them was a clear plastic barrier. On Mr Dunne’s side of the counter was his supervisor, Mr Kansari.
The appellant withdrew his hand from the front pocket of his hoodie and produced a small silver bladed knife. The appellant pointed the knife at Mr Dunne and, in a quiet voice, asked for money. Mr Dunne and Mr Kansari had difficulty hearing what the appellant said because he was speaking through his mask. Mr Kansari yelled at the appellant, who then turned, put the knife back into his pocket, walked out of the store to his bike, and left.
Inexplicably, four days later the appellant returned to the store and stole eight blocks of chocolate. Police later found blocks of chocolate and wrappers in the appellant’s home. The appellant was then arrested and spent 10 days in custody during May 2022 before he was released on home detention bail between May 2022 and May 2023.
The appellant reported to Dr Raeside that he was heavily intoxicated at the time of his offending and claimed to have no memory of it. Dr Raeside expressed the opinion that the appellant may well have been experiencing mental illness but there was no indication that the appellant did not know the nature and quality of his conduct. Any disturbance in his thinking was “most likely due to his drug intoxication”.[4]
[4] Report of Dr Raeside dated 19 October 2022, page 11 of 12.
During the period of his home detention the appellant returned five positive tests to THC as well as a positive test to THC and methamphetamine.[5] Despite breaching the conditions of his home detention, no action was taken because of the appellant’s good level of engagement under supervision.
[5] The sentencing judge disregarded the positive result for methamphetamine because it was suggested that it had been ingested under duress.
The victim impact statement from Mr Dunne disclosed that the offending had a serious effect on him. It caused him to become fearful of working in service stations at night. He experienced anxiety and, reluctantly, resigned from his employment even though he needed it.
The circumstances of the offender
The appellant turned 18 years around two weeks before the attempted aggravated robbery and was 20 years at the time of sentence. The appellant’s childhood was marred by instability, abuse and neglect. His parents were addicted to drugs. Although his father overcame his drug addiction, he was unable to provide the appellant with a safe and stable home. From 14 years he lived with his then girlfriend and her mother but by the time of sentence the appellant was living with his father.
The appellant was expelled from school in year 10 and had never been in paid employment.
The appellant had been dealt with in the Youth Court for two theft offences which occurred around a month before the subject offending. For these the appellant was discharged without penalty. After the subject offending the appellant was convicted and fined for breach of bail.
A psychiatric report provided by Dr Raeside dated 19 October 2022 disclosed a very significant history of substance abuse. The history obtained by Dr Raeside included early drug and alcohol abuse but, more significantly, an extended period of heavy Xanax abuse. This was described by Dr Raeside as a minor tranquiliser with effects similar to alcohol, associated with poor memory and concentration, blackouts and disinhibited behaviour. According to Dr Raeside:[6]
… Mr Size has been referred for psychiatric treatment and is currently engaged with the Eastern Community Mental Health Team. There remain diagnostic questions in relation to past … psychotic symptoms that may or may not be related to substance abuse, or an underlying evolving psychotic illness such as Schizophrenia. He has benefitted by the introduction of an antipsychotic drug, as well as being abstinent from illicit drugs and Xanax. Unfortunately, the referrals to the Headspace early psychosis team and to dialectical behaviour therapy were both declined due to his lack of engagement and motivation.
[6] Report of Dr Raeside dated 19 October 2022, page 10 of 12.
Dr Raeside concurred with the diagnoses of Borderline Personality Disorder and possible Anti‑Social Personality Disorder, likely associated with Complex Post‑Traumatic Stress Disorder due to early life trauma, and the adverse impact of this on the appellant’s emerging personality. Although Dr Raeside noted improvement without Xanax and with anti‑psychotic medication, this had “not been without its difficulties”.[7] The appellant reported considerable boredom which was “not a good prognostic factor for the future.”[8]
[7] Report of Dr Raeside dated 19 October 2022, page 10 of 12.
[8] Report of Dr Raeside dated 19 October 2022, page 11 of 12.
A progress report from the appellant’s community corrections supervisor dated 4 December 2023 disclosed that whilst on supervised bail the appellant reported regularly and engaged appropriately with only one appointment missed. A progress report dated 20 April 2023 demonstrated that though the appellant had engaged with Headspace, DASSA and Streetlink Youth Service, those services were no longer of assistance given the positive changes in the appellant since his arrest and engagement with them.
However, recommended mental health follow‑ups had not occurred to the degree hoped. A progress report dated 4 December 2023 demonstrated that though the appellant had regularly attended Eastern Community Mental Health for assessment and care, they were unable to give a diagnosis of the appellant’s mental health status because of his “poor engagement”.
The approach of the sentencing judge
The sentencing judge ordered a home detention report and asked for further information about the reported poor engagement with Eastern Community Mental Health.
The home detention report dated 19 January 2024 stated that the appellant did not attend most of his appointments with the mental health team. The appellant only engaged once in connection with one of the unannounced home visits. The mental health team wished to attempt to maintain contact so as to mitigate the appellant’s risks. The sentencing judge described these risks and one of the exchanges with the appellant as follows:[9]
The report described risks related to violent thoughts and frightening actions such as punching a wall in a clinic when frustrated, denigrating and swearing at [the appellant’s] treating doctor and … an occasion [when the appellant] suggested [he] needed to avoid appointments to prevent acting on … violent impulses.
A note from a doctor recording an exchange … recorded that … a friend had come over and [the appellant] had been robbed. [The appellant] made an implied threat that if the doctor was to attend. … ‘You know what would fucking happen’ and referred to a time [when he] punched a wall and threatened to harm that doctor. [The appellant] indicated there was something [he] could not tell the doctor because they would call the police, that [he] expected to go to gaol and that [he] needed help. [The appellant] advised the officers who attended … to assess the premises for suitability for home detention that [he] did not want to serve [his] sentence on home detention and would prefer to serve it in custody. [He] said [he] would cut off the electronic bracelet and abscond at the first available opportunity.
[9] Sentencing remarks, page 5.
The sentencing judge was informed during sentencing submissions by counsel for the appellant that the appellant was stressed about the prospect of becoming homeless and that he had “in essence given up”. The sentencing judge was told that the appellant was remorseful and shocked by what he saw on the closed-circuit television recording of his offending. The appellant wished to apologise to the victims. He had belatedly realised that his conduct caused harm.
The sentencing judge recorded that the appellant’s counsel urged the court to impose a sentence which promoted rehabilitation and reflected the appellant’s “youth [and] time … spent in custody and on home detention”.[10] The prosecution submitted that the offending was too serious to warrant any sentence other than an immediate custodial penalty.
[10] Sentencing remarks, page 6.
The sentencing judge explained her understanding of the offending, in terms which are not the subject of any criticism:[11]
I accept that you were intoxicated at the time of the offences. The offence of the attempted aggravated robbery was not sophisticated but it was planned. You attended the store having the intention to demand money and you took steps to avoid being identified in court. You exercised control over what you were doing. It was almost inevitable that it was going to fail. There was a clear plastic barrier between you and the victims, you mumbled and could barely be heard. You were easily dissuaded. You immediately put the knife away and walked out after being told to leave. Your offending was brief but it caused serious ongoing distress to the victim.
[11] Sentencing remarks, page 6.
The sentencing judge explained in some detail why she departed from the sentencing standard of imprisonment for six to eight years laid down in R v Place.[12] Although she regarded the offence of attempted robbery as not less serious than it would have been if it had been completed,[13] her Honour considered cases such as R v Thompson,[14] and R v Betts,[15] where sentences below the range set out in R v Place had been imposed, including where the offending was unplanned and opportunistic, with an amateurish quality about it.
[12] R v Place (2002) 81 SASR 395, [100]-[106] (Doyle CJ, Prior, Lander and Martin JJ, with whom Gray J agreed).
[13] Relying upon R v Gannon (2012) 113 SASR 1, [14] (Vanstone J, with whom Doyle CJ agreed, Kourakis J contra).
[14] R v Thompson [2021] SASCA 40.
[15] R v Betts [2011] SASCFC 27.
The sentencing judge gave considerable weight to the appellant’s history of substance abuse as the product of his social disadvantage and difficult childhood. Her Honour held that, in these circumstances, the appellant’s moral culpability was reduced by his intoxication at the time of the offending. She also had regard to the appellant’s youth. The sentencing judge explicitly exercised mercy.[16]
[16] Relying upon R v Osenkowski (1982) 30 SASR 212, 212 (King CJ) “There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case”.
Nonetheless, the sentencing judge found it difficult to make an assessment of the appellant’s rehabilitation prospects in connection with what she described as a “complex” sentencing task. She regarded the appellant’s prospects for rehabilitation as “guarded”.[17] The sentencing judge was troubled that the appellant’s risk factors were not currently being managed and that the status of his mental health remained uncertain.
[17] Sentencing remarks, page 7, as well as “tenuous at best”, page 8.
As for the suspension of any sentence, the sentencing judge explained that she rejected this on the grounds that the offending was too serious and the prospects for rehabilitation tenuous, having earlier explained:[18]
Your counsel has urged that the court suspend the sentence and has submitted that your youth, lack of prior offending and that you have ceased abusing the drug Xanax and the 11 months on home detention provides good reason to suspend the sentence. It is also submitted that you have reduced your cannabis use and ceased using other drugs. … There is little evidence of that engagement in rehabilitation. I accept you have stopped using Xanax but your drug test results provide a basis to consider you have some way to go and remain at risk. That you have also continued to struggle with avoiding cannabis and have resorted to using methamphetamine in circumstances where support and help is available to you to avoid using drugs is a concern. The picture painted by the reports I have received is there has been a down turn in your level of engagement with the mental health service which is there to support you. The report that you have had poor engagement with mental health services is concerning given that Dr Raeside considered you need ongoing mental health follow up …
[18] Sentencing remarks, page 8.
The sentencing judge rejected home detention because of the appellant’s threat that he would not comply with electronic monitoring and abscond.
The case for the appellant
The appellant contended that the sentencing judge erred in failing to find good reason to suspend due to:
1.the appellant’s youth;
2.the appellant’s lack of prior offending;
3.the appellant’s drug addiction as a product of social disadvantage; and
4.the nature and gravity of the offending.
The appellant gave particular emphasis to the appellant’s youth and lack of prior offending. The appellant submitted that an offender’s youth is a well-recognised mitigating factor.[19] Although the sentencing judge acknowledged the appellant’s youth when departing from the standard in R v Place, she did not expressly address it again in connection with determining whether there was good reason to suspend.
[19] Relying upon Arnold v Samuels (1972) 3 SASR 585, 596 (Bray CJ) and R v Schultz [2010] SASCFC 47, [23] (White J).

In addition, the appellant submitted that he had never previously been subjected to a term of imprisonment nor a suspended term of imprisonment. A term of imprisonment which was suspended should be recognised as a “real and significant sentence”.[20] The appellant submitted that a suspended sentence should have been imposed in this case because suspension is primarily aimed at an offender whom it is not appropriate to send to gaol for the first time.[21]
[20] Relying upon Elliott v Harris (No 2) (1976) 13 SASR 516 (Bray CJ, with whom Bright and Zelling JJ agreed); R v Hosking [2017] SASCFC 50 [47] (Blue J) and Millwood v The King [2024] SASCA 84 [44].
[21] R v Kruger (1977) 17 SASR 214.
Finally, the appellant submitted that any assessment of rehabilitation needed to address his lack of offending involving violence or dishonesty during the two years and two months he was in the community before being sentenced.
The determination of the application for permission to appeal
Whilst sentencing is concerned with “individualised justice”,[22] a sentencing judge has a very broad sentencing discretion. Under the law, a sentencing judge has considerable flexibility when imposing sentencing outcomes. This means that a range of sentencing outcomes may be open to be imposed, at least in so far as is consonant with broad consistency in sentencing approach and in accord with any statutory regime that applies.[23]
[22] Hackett v The Queen [2021] SASCA 32, [8] (Kelly P, Lovell and Livesey JJA); Rankin (A Pseudonym) v The King [2024] SASCA 112, [18] (Livesey P, Doyle JA and Hall AJA).
[23] Wong v The Queen (2001) 207 CLR 584, [6] (Gleeson CJ); Hackett v The Queen [2021] SASCA 32, [8] (Kelly P, Lovell and Livesey JJA), and the cases there cited.
This feature of the exercise of sentencing discretion explains why it is often said that the outcome of the broad sentencing discretion does not yield only one, correct sentence.[24] Though the appellant contended that insufficient weight was given to factors such as his youth, it is well-recognised that contentions about weight will rarely, of themselves, demonstrate error.[25]
[24] Markarian v The Queen (2005) 228 CLR 357, [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ).
[25] R v Lutze (2014) 121 SASR 144, [47] (Vanstone and Parker JJ); Lee v Western Australia [2022] WASCA 137, [73]-[75]; Wallace v The King [2023] SASCA 127, [27] (Livesey P and David JA).
Indeed, it is not suggested that the sentencing judge made any specific error. Only the outcome is criticised. It is said that the judge should have found that there was “good reason” to suspend.[26] The failure to suspend is a recognised example of manifest excess.[27] This therefore is a case where it is necessary to do more than demonstrate that it was open to the sentencing judge to suspend the sentence of imprisonment, and that other judges would have suspended the sentence in the circumstances of this case. Indeed, it is not sufficient for this Court to conclude that it may have come to a different decision, or even that a different decision may have been preferable.[28]
[26] Sentencing Act 2017 (SA), s 96; R v Pham [2014] SASCFC 95, [18] (Nicholson J, with whom Vanstone and Blue JJ agreed). See also Wessling v Police (2004) 88 SASR 57, 62-63 [26]-[27] (Besanko J); R v O’Toole [2013] SASCFC 18, [50] (Peek J, with whom Sulan J agreed).
[27] R v Jongewaard [2009] SASC 346, [40]; (2009) 266 LSJS 283, 288-289 (Doyle CJ with whom Layton and Kourakis JJ agreed); Teasdale v Police [2022] SASC 64, [73] (Blue J).
[28] Hili v The Queen (2010) 242 CLR 520, 538-9 [59] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Bugmy v The Queen (2013) 249 CLR 571, 587-588 [22] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ).
Consistently with the principles described by the High Court in House v The King,[29] the appellant must demonstrate that it was an error for the sentencing judge to proceed other than by way of a suspended sentence. It must be shown that the imposition of an immediate custodial term is “unreasonable or plainly unjust”,[30] outside the permissible range of sentences for this offender and this offending.[31] It must be shown that it was not open to the sentencing judge to proceed as she did.
[29] House v The King (1936) 55 CLR 499.
[30] House v The King (1936) 55 CLR 499, 504-505 (Dixon, Evatt and McTiernan JJ).
[31] Kentwell v The Queen (2014) 252 CLR 601, 615 [35] (French CJ, Hayne, Bell and Keane JJ).
Whilst it is true that an offender’s youth will usually be regarded as a mitigating factor, and that a suspended sentence is often appropriate for a youthful offender facing a sentence of imprisonment for the first time, this is not a case where the relevant sentencing considerations all pointed in the same direction. The appellant’s history of domestic instability, abuse and neglect, together with his abuse of drugs and uncertain mental health, gave rise to a complex sentencing exercise in which the relevant sentencing considerations conflicted.[32]
[32] See R v Perry [2022] SASCA 127, [142] (Livesey P and David JA).
As against the appellant’s youth, lack of significant other offending,[33] and history of profound childhood deprivation, it was proper for the sentencing judge to consider the seriousness of the offending, which was brazen and involved some planning and a knife with vulnerable victims (however brief and inept it may have been), as well as the appellant’s uncertain rehabilitation prospects.
[33] Especially in the two years before sentence.
Though the appellant is to be commended for the steps he has taken towards alleviating his dependence on drugs, whether illicit, prescribed or legal, his inconsistent approach to the care and treatment of his mental health remains particularly concerning. This is not a case where it was demonstrated that the appellant’s needs could not be appropriately addressed in prison or that opportunities for care and treatment outside of prison will be thwarted if he were to be incarcerated.
In all of these circumstances, whilst it is reasonably arguable that the refusal to suspend involved an error in the exercise of the broad sentencing discretion reposed in the sentencing judge, the appeal should be dismissed. It was open to the sentencing judge to proceed as she did.
Conclusion
The application for an extension of time and the application for permission to appeal should be granted, but the appeal dismissed.