so regarded the present respondent. In the context of the provision of assistance by the respondent to the prosecuting officers, this view of what could be called this critical rehabilitative age can be seen to have been a view which was open to his Honour." See also to the same effect Micallef (1990) 50 A Crim R 465 at 467 per Woods J:- "It is true that sentencing judges should be astute in detecting those cases where, after a poor record, a turning point appears in the life of a repetitive offender: Cardi (unreported, Court of Criminal Appeal, NSW, 3 December 1987). Commonly, offenders in their early 30s reach that criticals (sic) stage, but before extending leniency sentencing judges should be satisfied that there is a real glimmer of hope, and even then should impose a sentence which adequately balances the interest of general deterrence against the interest of rehabilitation. In appropriate cases that may justify reducing the minimum term and extending the additional term in the manner discussed in Moffitt (1990) 20 NSWLR 114; 49 A Crim R 20." 12. In terms of Wood J's observations Mr Allen conceded that when the appellant was sentenced in May there was "perhaps only a glimmer of hope", but submitted, relying on the three reports now tendered, that since then the glimmer had "become far greater". As indicated earlier, I think that overstates the candlepower; there was really nothing in May to found a "glimmer of hope", but now a glimmer appears. 13. Mr Allen informed me that to date the appellant had made restitution to the chemist of nearly $120. He submitted that the courts considered that restitution should be encouraged and so mitigated punishment where restitution was voluntarily offered, as here. I accept that submission; see R v Hutchins (1957) 75 WN (NSW) 75 and Mickelberg v The Queen (1984) 13 A Crim R 365. Voluntary restitution involves reparation to the victim of crime, a redress for the wrong inflicted on him; it also indicates remorse on the part of the offender and a probability of his rehabilitation. However, the offer of restitution in this case was before his Worship and the fact that he did not refer to it as a specific mitigating factor when imposing sentence does not mean that he is to be treated as not having taken it into account. To the contrary, it is to be assumed that the learned Magistrate knew the elementary rules of sentencing, and the courses open to him. Successfully to contend that his Worship erred in some way, error must be shown clearly to appear from his sentencing remarks, or in some other reliable way. See generally R v Reiner (1974) 8 SASR 102 at 106 per Bray CJ, and especially at 114-5 per Wells J. 14. Mr Allen submitted that a suspended sentence should be imposed. (b) The respondent's submissions 15. Mr O'Loughlin, counsel for the respondent, informed me that the appellant had been arrested and charged with offences nos. 1-4 on 9 May. During his interview by the Police, in which he fully admitted those offences, there is recorded:- "Leaney: I'm sorry, I want to pay compensation. Marsh: Anything else you want to say? Leaney:That I'm sorry and it'll never happen again." 16. Mr O'Loughlin observed that less than 12 hours later the appellant was arrested for offence no.5. He submitted that this showed a "degree of persistence" by the appellant in his criminal activity. I agree; it is behaviour typical of drug addicts. 17. Mr O'Loughlin informed me that on 26 April, 15 August and 25 October 1991 the appellant was committed for trial in New South Wales, on charges of break and enter with intent to steal, break enter and steal, and malicious wounding respectively. He had failed to appear for trial at the Parramatta District Court on 8 April 1992; as a result, 2 warrants for his arrest had issued in New South Wales. Mr O'Loughlin noted that the appellant had shortly afterwards arrived in Tennant Creek and within some 4 weeks had committed the present offences. He submitted that these facts showed that the appellant probably had several reasons for being "anxious to leave the New South Wales jurisdiction". This seems crystal clear, and it weakens Mr Allen's argument, unsupported by specifics, that the appellant's purpose in coming to Tennant Creek was to rehabilitate himself. 18. Mr O'Loughlin sought to tender a presentence report on the appellant prepared in New South Wales on 7 April 1992, and a psychologist's report of 11 May 1990. Mr Allen objected to the admission into evidence of these reports, on the basis that they contained hearsay and he had had no opportunity to cross-examine the makers. I consider that the reports should not be received into evidence on the appeals, and dismiss their contents from consideration. 19. Mr O'Loughlin submitted that the appellant had already received the benefit of the opportunity referred to in Caridi (supra), when he was given the 5 year bond in December 1989 against a background of a long history of offences and terms of imprisonment. Mr O'Loughlin submitted that the appellant should not be given that opportunity again, in light of his recent offences. (c) The appellant's submissions in reply 20. Mr Allen freely conceded that the appellant had been "in a great deal of trouble in New South Wales", but pressed his submission that the appellant had come to Tennant Creek "to rehabilitate himself". The difficulty with that submission, as noted earlier, is that there is no evidence of the rehabilitative steps he had taken, if any, between arriving in Tennant Creek and committing these offences. 21. Mr Allen stressed that the suspended sentence which he sought is a serious punishment, citing Elliott v Harris (No.2) (1976) 13 SASR 516 at 527, where Bray CJ said:- "So far from being no punishment at all, a suspended sentence is a sentence to imprisonment with all the consequence such a sentence involves on the defendant's record and his future, and it is one which can be called automatically into effect on the slightest breach of the terms of the bond during its currency. A liability over a period of years to serve an automatic term of imprisonment as a consequence of any proved misbehaviour in the legal sense, no matter how slight, can hardly be described as no punishment. This Court has frequently expounded the merits of the suspended sentence in appropriate cases ..." 22. It should be noted that under the relevant legislation in South Australia

• s4(2a) of the Offenders Probation Act 1913, as amended - breach of the terms of the bond automatically resulted in service of the full term of the sentence suspended; see R v Locke (1973) 6 SASR 298 at 301-2. However, under the corresponding legislation in the Northern Territory - ss5(1)(b) and 6(3)(e) of the Criminal Law (Conditional Release of Offenders) Act - that is not the case. The sword of Damocles, in this respect, is not as sharp in the Territory; the suspended sentence has not the same "teeth" as in South Australia, as disposition upon breach is discretionary. I note also and respectfully agree with the following observations in R v Percy [1975] TASStRp 5; (1975) Tas SR 62. At p73 Neasey J said:- " I subscribe entirely to the view that a suspended sentence should not be imposed as a "soft option" when "the court is not quite certain what to do", or "when, but for the power to give a suspended sentence, a probation order was the proper order to make" - O'Keefe v The Queen (1969) 53 Cr. App. R. 91, at p.94. In that case the court also said (at pp94-5):- "After all, a suspended sentence is a sentence of imprisonment. Further, whether the sentence comes into effect or not, it ranks as a conviction, unlike the case where a probation order is made, or a conditional discharge is given. Therefore, it seems to the Court that before one gets to a suspended sentence at all, a court must go through the process of eliminating other possible courses such as absolute discharge, conditional discharge, probation order, fine, and then say to itself: this is a case for imprisonment, and the final question, it being a case for imprisonment: is immediate imprisonment required, or can I give a suspended sentence?" With the general effect of that, I respectfully agree. It follows, in addition, that the length of a sentence should not in any way depend upon the question whether it is to be suspended or not. As to the suspended sentence generally, see "The Use of Suspended Sentences", by R.R. Sparks (1971) Cr. Law Rev. 384; "Suspended Imprisonment", by Stephen White (1972) Cr. Law Rev. 7. However, it is almost self-evident that a sentence of imprisonment should not be suspended unless there is some reasonable prospect, from the circumstances of the case or of the offender, that remission from actual imprisonment combined with the expectation that the sentence will have to be served if the conditions of suspension are breached will have sufficient deterrent effect; or will sufficiently move the offender towards reform of his conduct as to achieve that reformation." At p82 Chambers J said:- "In my opinion the aspect of deterrence, both to the offender himself and generally, was the most important aspect of the case. I agree with what Gibson J. said in Paynter v The Queen (unreported, CCA, Tas., 4th November, 1964) that imprisonment as a deterrent is easily comprehended by the ordinary man, but a suspended sentence is unlikely to produce the same effect. An effective sentence of imprisonment cannot be shrugged off but, certainly in the case of a person who has consistently been in trouble with the law on previous occasions - a suspended sentence might be regarded as something in the nature of a "paper tiger"."

23. Further, I note that the decision whether or not to suspend a sentence involves an exercise of the discretion of the sentencing Magistrate; the review of such a discretion involves the application of the same principles as the review of the sentence actually imposed. See R v Shueard (1972) 4 SASR 36 at p44, where the Court identified matters relevant to the decision as follows:- "Facts bearing upon the person of the prisoner, his age and history, his medical and psychiatric condition, his future prospects, and his circumstances generally may be taken into account, and often are more appropriately taken into account, as subjective matters which will help a court to decide whether to suspend a sentence, rather than as matters bearing directly upon the appropriate term of imprisonment; though

the two aspects are related, and often cannot properly be considered separately and in isolation." 24. As to the relevance of the appellant's absconding from New South Wales, Mr Allen referred to Halewyn (1984) 12 A Crim R 202. In that case the learned sentencing judge in Victoria was informed that there were 9 extradition warrants waiting to be executed as soon as the prisoner left the court, if he left pursuant to a non-custodial disposition. This appeared to affect the disposition he made. Young CJ said at p205:- "The task of a sentencing judge is, of course, to impose the proper sentence for the offence, having regard to all the relevant circumstances, including circumstances personal to the individual offender before him. It would be going too far perhaps to say that the existence of the extradition warrants of which the learned judge was told was totally irrelevant to the task before the judge, but I think that his Honour too readily assumed that if released the application would immediately be extradited and taken to New South Wales." 25. Applying these views, I set aside the existence of the New South Wales warrants as a relevant factor in determining these appeals. The undisputed fact that the appellant is a recent bail absconder is however a significant matter. Observations 26. Section 163 of the Justices Act provides for an appeal to this court from a sentence imposed by a Court of Summary Jurisdiction. As to the general nature of that appeal I adhere to the views I expressed in Mason v Pryce [1988] NTSC 28; (1988) 53 NTR 1 at 7:- "I consider that the correct approach to an appeal against sentence under the Justices Act is that since the determination of a sentence is a discretionary judgment, this court should not interfere by substituting its own judgment in a case where fresh evidence is not admitted on appeal, unless it is first satisfied that the magistrate fell into error and improperly exercised his sentencing discretion." 27. In this case, however, fresh evidence was admitted on appeal. 28. Section 172(1)(b) of the Justices Act requires that the nature and grounds of the appeal be stated in the Notice of Appeal. In the Notices of Appeal filed herein the grounds are stated as follows:- "The learned Magistrate failed to give sufficient weight to the submissions put in mitigation and as a result the sentence is manifestly excessive." The ground is that the sentence is manifestly excessive, and the basis for that ground is stated. It appears to escape the critical observations of Martin J in Flanigan v Barrett (1988) 7 MVR 31 at p39. The respondent was fairly warned of the basis upon which the appeals were to be argued, though more particularity could have been given. 29. Sections 176 and 176A of the Act provide, as far as is presently material:- "176. Subject to section 176A, no evidence shall be received on the hearing of the appeal other than ... , except by consent of the parties. 176A. (1) Where evidence is tendered to the Supreme Court, that Court shall, unless it is satisfied that the evidence, if received, would not afford a ground for allowing the appeal, admit that evidence if - (a) it appears to it that that evidence is likely to be

credible and would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; (b) it is satisfied that that evidence was not adduced in those proceedings and there is a reasonable explanation for the failure to adduce it; and ..." 30. The three reports upon which Mr Allen relied met the "consent" requirement of s176. However, I consider that evidence which qualifies under s176 to be received must then meet the requirements of s176A before it is admitted, since s176 is expressed to be subject to s176A. It is somewhat difficult to see how evidence of matters occurring after sentence had been imposed by the Court of Summary Jurisdiction could meet the requirements of s176A(1)(a) or (b); see R v Prideaux (1988) 36 A Crim R 114 at 116, and R v Munday (1981) 2 NSWLR 177 at 178. Those provisions are consonant with the nature of the appeal as an appeal stricto sensu. The type of evidence which would normally be admitted on appeal would be, for example, evidence required to explain some ambiguity in the evidence before the Court of Summary Jurisdiction, or some error in the transcript of proceedings. However, it seems that evidence relating to post-sentence matters is sometimes received; see for example Arnold v Samuels (1972) 3 SASR 585, Paynter v Huffa (1977) 17 SASR 120, R v Smith (1987) 27 A Crim R 315, Giles v Barnes (1967) SASR 174, Edwards v Wylie (1976) 14 SASR 268, and R v Amuso (1987) 32 A Crim R 308. In this case, I proceed on the basis that the appeals are to be determined in the light of the three reports received, and also in the light of the new material which shows that the appellant came to Tennant Creek as a bail absconder. 31. As this is a case where fresh evidence was received on appeal, the function of this Court is as described by O'Leary CJ in Seears v McNulty (1987) 28 A Crim R 121 at 127:- " to form its own independent opinion of the evidence on the material put before it, and give judgment as if it were sitting as a court of first instance." This is subject to the rider that what is involved is an appeal, and consideration must be given to the advantages of the learned Magistrate, and to his exercise of a sentencing discretion. As to the fresh evidence, it must have the quality described in principle no.3 in In the matter of a Petition by Van Beelen (1974) 9 SASR 163 at 183-4. Conclusions 32. I consider that in all the circumstances as they were presented before the learned Magistrate, including the appellant's prior record, the effective sentence of 6 months imprisonment which he imposed was well within the proper exercise of his sentencing discretion. It cannot be said to be manifestly excessive. I do not consider that the appellant has established that his Worship failed to give sufficient weight to the submissions made to him in mitigation, when sentencing. I do not consider that the 3 reports relating to the appellant's changed lifestyle in the last 3 months give cause for more than a cautious optimism that a glimmer of hope for a future drug-free life may now be appearing. Those reports constitute an insufficient basis, in the light of his established history to date, particularly his breach of the bond of 1989 and his recent absconding from bail in April 1992, to conclude that a sentence of imprisonment, otherwise fully merited in my opinion, should be suspended in whole or in part. There is no substance in the other arguments relied on by the appellant. 33. The appeals are dismissed and the sentences of 15 May 1992 as set out on p2, are affirmed.