1. The applicant appeared before the magistrate on 29 May 2024. She entered pleas of guilty to all of the charges. The applicant had just turned 18 on 5 May 2024, that is on the same day the first of the stealing charges was committed. The applicant's record of prior convictions was tendered. The only matters recorded were two stealing charges from December 2022 and a computer related fraud from April 2023. She was informally cautioned on these matters.
2. Of more significance were the applicant's pending youth justice matters, which were also listed before the magistrate. There were 15 complaints in total. The applicant had pleaded guilty to the charges on 14 of those complaints. Those matters had previously been adjourned to 14 May 2024 for facts and sentence, however, the applicant failed to appear. A warrant was issued for her arrest. Those complaints were as follows:
   • 5517/2023 - one count of stealing goods to the value of $209.98 from Chemist Warehouse on 22 February 2023.
   • 7431/2023 - one count of stealing goods to the value of $96.99 from Dan Murphy's on 18 March 2023.
   • 4702/2023 - one count of stealing goods to the value of $101.79 from Woolworths on 20 March 2023.
   • 4703/2023 - one count of stealing goods to the value of $559.86 from Chemist Warehouse in New Town, and one count of stealing goods to the value of $555.97 from Chemist Warehouse in Sandy Bay on 14 April 2023.
   • 4704/2023 - one count of trespass and one count of stealing goods to the value of $155.89 from Woolworths on 15 April 2023.
   • 4731/2023 - one count of wilfully obstruct a police officer and one count of resist a police officer.
   • 7433/2023 - one count of stealing goods to the value of $569.98 from Anaconda on 15 June 2023.
   • 7435/2023 - three counts of stealing from Dan Murphy's on 14 June 2023, 15 June 2023 and 20 June 2023. The value of the items stolen was $124.94, $58 and $59 respectively.
   • 949/2024 - one count of stealing goods to the value of $1,099.94 from Kathmandu on 21 July 2023, and one count of stealing goods to the value of $93.60 from Steve's Liquor on 21 July 2023.
   • 950/2024 - one count of stealing goods to the value of $93.43 from Chemist Warehouse on 26 July 2023.
   • 1178/2024 - one count of stealing goods to the value of $1,789.82 from Chemist Warehouse on 26 July 2023.
   • 1063/2024 - one count of stealing goods to the value of $29.90 from Bunnings on 18 October 2023.
   • 1096/2024 - one count of breach of bail.
   • 1784/2024 - three counts of stealing, two counts of trespass and two counts of computer related fraud. This complaint concerned stealing goods to the value of $287.26 from Woolworths on 9 November 2023, goods to the value of $74.98 from Chemist Warehouse on 26 November 2023, goods to the value of $440 from Woolworths on 16 December 2023.
3. The final complaint, 90531/2024, was a new youth justice matter alleging one count of stealing goods to the value of $709.86 from Chemist Warehouse on 21 December 2023. No plea was entered to this complaint when she appeared on 29 May 2024.
4. Prior to sentence, the applicant had been living at home with her mother. Her mother was present in court during the proceedings before the magistrate. The applicant had no income; she was not working and had not been granted any Centrelink payments. Her counsel told the magistrate that staff employed by the Tasmanian Aboriginal Legal Service would be providing assistance to the applicant to obtain a Centrelink benefit.
5. A youth justice report had been prepared in anticipation of the sentencing which was to occur on 14 May 2024. The applicant's counsel drew on some of the matters referred to in that report during the course of her sentencing submissions, including that the applicant had expressed embarrassment when the facts of her offending were read to her. She explained she recognised she had little regard for the law and the impact of her stealing on others at the time of offending. She told the report writer that her behaviour was "pretty shitty" and said she wanted to apologise for her conduct.
6. The applicant's family situation was outlined to the court. She is one of two children of her parent's relationship. She is Aboriginal. She has three half siblings, one of whom is younger. Her older siblings lived in Queensland. One of the applicant's older brothers was fighting cancer and was also incarcerated. The applicant had missed attending court on some earlier occasions in order to be in Queensland to support her brother during his illness. She appeared in court by phone from Queensland on those occasions.
7. The applicant grew up in Queensland, primarily residing in her mother's care. The family had lived in Hobart since 2019. The applicant did not have any significant contact with her biological father. There was a history of family violence between the applicant's parents. The applicant's mother had a long-standing problem with drug use and had served some time in prison. During those times, her children were placed in the care of others. The applicant was the subject of care and protection orders for a period of five years between 2009 and 2014. For some of that time, she lived with her grandparents.
8. The applicant was not participating in any mainstream schooling. She had been involved with a program designed to help students re-engage by addressing barriers to education. She had completed her secondary education to year 10. She was identified as having very limited achievement across all academic areas when she was last assessed. There was information to the effect that the applicant had poor attendance and was dealing with a lot in her home life which affected her education. The magistrate was told that the applicant wanted to do a beauty course at TAFE the following year. The applicant instructed her counsel that she was trying to stay away from pro-criminal associates, but struggled with depression when she stays at home.
9. In summary, the picture painted was of a young woman with a background of much family dysfunction who had impaired educational outcomes due to poor attendance and a chaotic home life. The submissions did not address the reason for offending in any detail.

1. Following the plea in mitigation, the magistrate immediately proceeded to sentence, stating the following:

"Well I take into account the fact ... you're before the Court and you've pleaded guilty to committing stealing matters whilst a youth. And despite that, despite the outstanding matters, you continued to engage in similar activities. Unfortunately for you, you're now an adult and be dealt with like an adult."

In respect of the stealing matters, the magistrate stated the following:

"On 5262/24 and 5263/24 which are the stealing matters, I take into account all the matters raised by counsel, I take into account the fact you've got outstanding matters in the Youth Court which precede these, I record a conviction of six weeks imprisonment, wholly suspended for two years on the condition you're of good behaviour, so you keep your nose clean for two years and that's the end of it.

I'll also make a Community Correction order. This for your help. Regard this as help. That pursuant to s42A of the Sentencing Act, I make a Community Correction order for 12 months, a supervision order. The core conditions are that you must report to the probation officer in Hobart along the road as soon as you sign the bail documents - well, the court documents. You go down the road to report, then you must not commit an offence punishable by imprisonment.

As I said, you must report to Community Corrections by 5 o'clock today. You must report to probation officers required by that probation officer. You must comply with the reasonable lawful directions given by a probation officer or supervisor. You must not leave or stay outside Tasmania without the permission of probation officer. You must notify a probation officer of any change of address or employment before or within two working days after the change. Has she got any drug or alcohol problem?

HIS HONOUR: Okay, well, I won't make any special orders."

1. The applicant referred to the well-established principle that a custodial sentence is a punishment of last resort and should not be imposed unless it is necessary and where no other punishment is appropriate: DPP v King [2020] TASCCA 8 at [60] per Wood J. Recognising the process that should be undertaken when determining to impose a suspended sentence, as discussed by Kirby J in Dinsdale v The Queen [2000] HCA 54, the applicant submitted the magistrate must have concluded that the offending warranted the imposition of a period of imprisonment. The applicant argues that in light of all the relevant circumstances, this demonstrated a fundamental error on the part of the magistrate.
2. The applicant submitted that there were a number of prominent mitigating factors, none of which were referred to by the magistrate when handing down his sentence. The applicant argues that he must have failed to adequately take those factors into account. Those prominent mitigating factors included:

(a) The applicant's youth - she had recently turned 18 at the time of the offending and at the time of sentencing. The imposition of a sentence of imprisonment risked exposing the applicant to the corrupting influence of prison, a risk which ought to be avoided when sentencing young offenders: Director of Public Prosecutions v Broadby, Cockshutt and Woolley [2010] TASCCA 13, Evans J at [14]-[15];

(b) The applicant's pleas of guilty and cooperation with the authorities - although it was conceded there was a strong case against the applicant in relation to all matters, she did enter a plea of guilty on the first possible opportunity. This facilitated the administration of justice and spared the need for hearings on all matters. The applicant also made relevant admissions when questioned in relation to the matters;

(c) The applicant's personal circumstances - at the time of sentencing, the applicant had spent over 24 hours in custody. She had never been sentenced to a period of imprisonment before. She had no prior convictions. She had a difficult upbringing which was a factor which may have the effect of mitigating a sentence: Banfield v Tasmania [2024] TASCCA 1.

1. Of particular importance, the applicant had never been sentenced by a court before. The applicant argued that the imposition of a period of imprisonment in those circumstances was fundamentally inconsistent with the principle that a sentence of imprisonment will only be imposed as a last resort. During the review hearing, the applicant submitted that the magistrate "didn't properly consider whether a sentence lower on the sentencing hierarchy would have appropriately balanced the sentencing aims of rehabilitation, specific deterrence, and denunciation". She argued that a sentence lower on the hierarchy than a period of imprisonment could have addressed those sentencing aims.

1. The respondent accepts that the applicant's youth and prospects of rehabilitation were relevant matters. It was submitted, however, that the circumstances of the case were such that the magistrate was entitled to give significant regard to other principles of sentencing, particularly specific and general deterrence as well as rehabilitation.
2. The respondent noted a number of aggravating features of the offending. The offending involved four occasions of stealing across multiple dates. It was not possible to treat the offending as "a single youthful escapade": R v Mathers and Rogers [1959] TASStRp 10; [1959] Tas SR 17 at 26. The applicant had made admissions to a degree of premeditation in her conduct. She demonstrated a disregard of the law, both in terms of the frequency of her offending and in that it had occurred while she was on police bail and in breach of a prohibition order. She did not act alone, as she stole and secreted items with associates. The stolen items were not recovered and there had been no attempts by the applicant to make restitution for her conduct. The value of the items taken was relatively high and could not be considered minor shoplifting. Given the quantity of the meat stolen, it could not be claimed that the offending was needs based.
3. The respondent acknowledged the applicant had no prior convictions at the time of sentence. The magistrate, however, was aware of the multiple youth complaints for similar offending to which the applicant had pleaded guilty which demonstrated constant offending across the entirety of 2023. The respondent submitted the magistrate was entitled to take these matters into account as relevant to sentence, although they did not constitute prior convictions. It was information which demonstrated the offending was not an uncharacteristic aberration but constituted a continuation of a pattern of conduct and disobedience of the law. The magistrate was aware that the previous charges, court appearances, bail conditions and the prohibition notice issued by Woolworths had failed to deter the applicant from continuous dishonest offending. This indicated a need to impose a punishment which had the effect of deterring the applicant.
4. The respondent also submitted that shop lifting is an offence that attracted the need for a deterrent sentence. Such offending causes losses to businesses and their revenue, which in turn affects prices charged to customers. It creates a circumstance of risk to the health and wellbeing of retail staff, particularly if they intervene to prevent theft. The respondent cited an increase in the number of lodgements in the Magistrates Court of complaints relating to property and deception offences in 2023 to 2024 compared to the previous year. Such offences made up the second highest number of lodgements after traffic offences. Given those circumstances, the magistrate was entitled to consider the need to deter others from similar offending.
5. As to rehabilitation, the magistrate directly considered that in the sentence he fashioned; the community correction order he made was expressed to be for the benefit of the applicant. The magistrate said that he took into account all matters raised by the applicant's counsel, which included the mitigating matters raised during the sentencing hearing. Even taking into account the applicant's pleas of guilty and cooperation, the respondent submitted that the sentence was not one that was manifestly excessive. The maximum penalties applicable to each of the stealing offences was a term of imprisonment not exceeding three years (see s 13(a) of the Sentencing Act 1997) and a term not exceeding six months for each count of trespass (see s 14B(2)(b) of the Police Offences Act 1935). The respondent argued that it could not be said that the magistrate went to a place of last resort when imposing sentence. Ultimately, the penalty handed down was not so severe or disproportionate to the seriousness of the applicant's conduct that it could be characterised as onerous or plainly unjust.

1. The magistrate's comments on passing sentence were brief. They do, however, reveal that he was conscious of the applicant's age and that these were the first offences for which she was to be dealt with as an adult. It is clear that the applicant's pending matters were of particular importance to the magistrate. He noted the offending was a continuation of that earlier conduct. The need to deter the applicant from like offending in the future was highlighted. The magistrate also recognised that the applicant would benefit from support to address her offending behaviour through the imposition of a community correction order with a supervision component. Although the magistrate's failure to mention what the applicant described as "prominent mitigating factors" was referred to during the course of argument, no ground of appeal was directed at the sufficiency of reasons or alleged a failure to take a relevant consideration into account.
2. By imposing a wholly suspended period of imprisonment, the magistrate utilised what was described by Kirby J in Dinsdale at [76] as a "popular and much used sentencing option". In this jurisdiction, the Sentencing Act provides that a court may, when sentencing an offender for an offence, record a conviction and order that the offender serve a term of imprisonment that is wholly or partly suspended: s 7(b). This is expressed as a sentencing order distinct from one that a person serve a term of imprisonment: see s 7(a) of the Sentencing Act. Suspended sentences are further dealt with in Division 4 of Part 3 of the Sentencing Act which is concerned with custodial sentences. The Sentencing Act provides no legislative guidance as to the exercise of the discretion to suspend a sentence of imprisonment in whole or in part, save that it mandates the imposition of a condition that the offender not commit another offence punishable by imprisonment during the period the order is in force: s 24(1).
3. In Dinsdale, Kirby J explained at 346 that "two distinct steps" were involved in the decision to impose a suspended sentence pursuant to the Western Australian statutory regime the High Court was then considering. The first was a determination that a sentence of imprisonment, and not some lesser penalty, was warranted. The second was the determination of the portion to be suspended. As Kirby J further explained, "[i]t follows that imposition of a suspended term of imprisonment should not be imposed as a 'soft option' when the court with the responsibility of sentencing is 'not quite certain what to do'".
4. While these two distinct steps were required by the terms of the particular statutory regime being considered in Dinsdale, it has long been accepted that this reflects the approach required in Tasmania: see Percy v R [1975] TASStRp 5; [1975] Tas SR 62, Neasey J at 73. In Turner v Davis, Neasey J explained at 3-4 that "[i]f a sentence of imprisonment does not lie within the bounds of a sentencing discretion properly exercised, it cannot be brought within those bounds by suspending its operation". This reflects the reality that the imposition of a suspended sentence is accompanied by the risk that the offender will be required to serve the period held in suspense if the conditions of suspension are breached: see s 27 of the Sentencing Act.
5. It follows that the issue arising from this appeal, in circumstances where the applicant took no issue with the length of what was a modest head sentence, is whether a sentence of imprisonment was outside of the bounds of the exercise of the sentencing discretion.
6. As Pearce J explained in Brown v Moore [2021] TASSC 3 at [21], "[t]he sentencing magistrate had a wide sentencing discretion. There is a range of legitimate outcomes and no single correct sentence: Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at 624 [46]".
7. If the applicant was being sentenced as a first-time offender with no pending matters, I would not hesitate to conclude that a period of imprisonment, suspended or otherwise, was outside of the bounds of the exercise of the sentencing discretion in light of the applicant's young age and the circumstances of the offending. In my view, the stealing and trespass offences, particularly those committed on 26 and 27 May 2024, were moderately serious examples of such offending. They were committed in company. The value of the meat stolen was significant, totalling $3,732.15. The goods were not recovered. The stealing of goods such as meat from stores in a targeted fashion is a matter of considerable concern. Such offending is commonly seen by courts in this State. General deterrence is a relevant consideration when sentencing for such offences. Nevertheless, the offending in isolation, while serious, did not demand giving effect to the deterrent aspects of punishment at the expense of other weighty considerations, including the applicant's youth, personal circumstances and pleas of guilty.
8. The ultimate question is whether the applicant's pending matters brought a custodial sentence within the bounds of the sentencing discretion. While the applicant had not been sentenced for those offences, she had pleaded guilty to 18 counts of stealing and three counts of trespass across the 14 complaints. The value of the goods exceeded $6,000. The offending occurred over a 10 month period.
9. The applicant does not contend that these pending matters were irrelevant to the exercise of the sentencing discretion. As Evans J explained in Broadby, Cockshutt and Woolley at [19] (Porter and Wood JJ agreeing), "a sentencing court looks at all relevant aspects of an offender's behaviour up until the time of sentencing". Evans J also cited with approval at [20] the decision of King CJ in R v McInerney (1986) 42 SASR 111 at 113 where he relevantly said:

"The cardinal rule is that while good character may operate to reduce the sentence which the facts of the crime would otherwise attract, bad character cannot increase it. A person is not to be punished, or punished again, for crimes other than the crime for which sentence is being passed. Offences committed prior to sentence for the offence under consideration may affect the sentence in two ways. They may diminish or abrogate any leniency by reason of good character. They may, moreover, lead to a greater sentence than would otherwise be imposed, although within the proper limits indicated by the facts of the immediate crime, for the purpose of personal deterrence; the prisoner's record may indicate that greater punishment is needed to protect the public by deterring him from further crime. Where the other offences have been committed before the commission of the immediate offence, their relevance is clear in the generality of cases. The offender has committed the offence not as a first offender but as a person whose character is affected by previous offending. He must be sentenced against the background of his record: DPP v Ottewell [1970] AC 642 at 645; (1968) 52 Cr App R 679 at 681. The effect of the prior offences is more cogent if they have been the subject of conviction before the immediate offence. In such cases, the offender has committed the immediate offence notwithstanding the formal judgment and condemnation of the law in respect of the earlier offences and notwithstanding the warning as to the future which the conviction experience implies." (emphasis added)

1. Accordingly, the applicant was not entitled to claim that the offences were out of character or a youthful aberration. The conduct for which she fell to be sentenced represented a continuation of the consistent, significant and like offending she engaged in during the course of the previous year. While there was a gap of some five months between the last of the 2023 matters and the first of the offences committed in May 2024, the reasons for that gap were not explored in the sentencing hearing. It is difficult, therefore, to ascribe any particular weight to the modest gap in those circumstances. Personal deterrence assumed, therefore, importance in the sentencing exercise.
2. In this case, the applicant had not yet been the subject of a sentence imposed by a court, either as a youth or an adult. While the relevance of the pending matters was clear, it was not a case where the applicant had received any warning of the kind described by King CJ in McInerney. As Cox J also explained in McInerney at 124:

"A conviction is a formal and solemn act marking the court's, and society's, disapproval of a defendant's wrongdoing, so that a prior offence may not assume quite the same significance as a prior offence coupled (by the time the instance offence is committed) with a prior conviction."

1. After much consideration, I have concluded the magistrate erred in imposing a suspended sentence in this case. In imposing the sentence, the magistrate gave predominance to the applicant's pending matters and status as an adult offender. While the pending matters were serious and of a like nature, the fact they had not yet been the subject of sentencing orders required a degree of moderation when considering their relevance to the sentence to be imposed, particularly as to the issue of specific deterrence. There is no question the pending matters made personal deterrence a relevant consideration, however, this was not a case of an offender breaching, or failing to heed the warning communicated by, a previous sentence imposed by a court.
2. In my view, despite the applicant's pending matters, the offending did not warrant the imposition of a custodial sentence at the expense of a lesser sentencing option. She was a young offender. It was important to bear in mind that a suspended sentence, albeit of modest length, exposed her to the risk of serving a period of imprisonment and being exposed to the corrupting influence of other prisoners: see Lahey v Sanderson [1959] TASStRp 10; [1959] Tas SR 17. Her rehabilitation remained an important consideration, particularly in circumstances where the capacity of community-based orders to encourage and assist her to amend her conduct had not been tested. The offending, as I have already observed, while serious, was not so serious that issues of general and specific deterrence and denunciation outweighed other weighty considerations. Consequently, a custodial sentence fell outside of the bounds of the proper exercise of the sentencing discretion in the circumstances of the case. The imposition of a suspended period of imprisonment was manifestly excessive as a consequence.
3. The motion to review is allowed. Given the community corrections order imposed by the magistrate had expired by the time this motion to review was heard, I will hear the parties further concerning the orders which should be made, including as to resentence, in light of this decision.