1 Applications for leave to appeal granted. 2 Both appeals allowed.

COX J These two applications by the Attorney-General for leave to appeal against the sentences imposed in the Supreme Court at Burnie on 22 October 1993 on the respondents on their plea of guilty to a complaint of aggravated armed robbery in respect of which they were jointly charged were heard together. The respondent Everett, prior to sentence, had been in custody for a period of 85 days, not having been granted bail. The respondent Phillips, on the other hand, had been granted bail after his arrest but was remanded in custody by the learned sentencing judge after having affirmed his plea of guilty in the Supreme Court. Sentence was pronounced upon him some eighteen days later. The respondent Everett was sentenced to twelve months' imprisonment, back-dated to the date upon which he had been taken into custody, but the execution of the whole of the remainder thereof was suspended on the following conditions, namely:

"- he commit no crime or offence involving dishonesty or

violence to the person for a period of two years;

- he enter into a bond to be of good behaviour for a period

of two years, such to be under the supervision of a

probation Officer."

2. The respondent Phillips was also sentenced to a term of one year's imprisonment, back-dated to the date upon which he had been taken into custody, but the execution of the whole of the remainder thereof was likewise suspended on the same conditions.

3. Briefly, the facts of the offence were that at about 11.20pm on Friday 9 July 1993 the two respondents, their faces masked by beanies in which eye holes had been made, entered a milk bar in the City of Burnie where a female assistant was working alone. The respondent Everett was carrying a shotgun with two barrels which he held against his hip and pointed it in the general direction of the complainant. Phillips, in a confident voice, ordered her to open the cash register and to get down on the floor. Upon her complying, he took some $948 in cash and two packets of cigarettes and the offenders left. Earlier in the night Phillips had suggested that the two men go into town. They took with them a change of clothing and the beanies, one of which had eye holes already prepared. Phillips had been in contact with another man who provided the weapon and the arrangement with him was that he would be paid $100 for the loan of it. In due course this was paid to him and the two respondents shared the balance of the sum robbed from the complainant. Prior to entering the milk bar the two men went to the nearby beach, made eye holes in the other beanie, and examined and manipulated the shotgun. It was, to the knowledge of both, unloaded at all material times. The learned sentencing judge found that two other men, who were involved in some other robberies in the Burnie area about this time, had involved Phillips in the commission of the crime, and he in turn had involved Everett, who continued his involvement through his friendship with and loyalty to Phillips. His Honour accepted that "his conduct, although criminal, flowed from stupidity, boredom and immaturity rather than a criminal propensity". He concluded that the respondent Everett was not the instigator, he was well aware of the proposed robbery (albeit in general terms) prior to going to town, he was well aware of the proposed use of the weapon and disguise, he used the weapon as an integral part of the robbery and received a profit from the commission of the crime. He was just 18 years of age at the time of the offence, while the respondent Phillips was 19 months older and turned 20 years of age in November 1993. Both men produced a number of character references, received encouraging presentence reports which showed they each came from good and caring backgrounds, Everett had never been in trouble with the law before and Phillips' only previous conviction of any moment was for a minor assault under the Police Offences Act.

4. The learned sentencing judge delivered reasons for judgment in respect of each and prefaced those concerning Everett with this statement of the issue:

"Wayne Everett pleaded guilty to the crime of robbery

involving his use of a firearm. At the time of the

commission of the crime he was aged 18 years. He possessed

no previous convictions. He had never appeared in a court

charged with any offence. The nature of the crime warrants

the imposition of a custodial sentence. The age of the

offender, coupled with his unblemished record, should lead

to the conclusion that the prospects of rehabilitation are

paramount and that no custodial sentence should be imposed.

The use of a shotgun by an offender in the course of a

robbery warrants the imposition of an immediate custodial

sentence. The imposition of an immediate custodial sentence

on an 18 year old with no prior convictions and with no

history of anti-social behaviour runs counter to the

appropriate response of the criminal justice system to

juvenile offenders."

5. He then recited the facts which I have condensed above, referred to the effects upon the complainant which included anxiety and sleeplessness, and then addressed the issue of retribution and deterrence, concluding that the principles of sentencing warranted the imposition of a term of imprisonment. In part he said:

"... the sentence should be determined on the basis of the

circumstances of the offence and the objective matters

warranting the imposition of penalty coupled with the

subjective circumstances surrounding the offender. When

that balance is achieved, and only then, can consideration

be given to the question of suspension of all or part of the

sentence."

6. His Honour said that this approach was consistent with that taken by Neasey J in R v Percy (1975) Tas SR 62 where he stated at 73-74:

"... the length of a sentence should not in any way depend

upon the question whether it is to be suspended or not. ...

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; ... In my view the logic

of the process is to take mitigating circumstances into

account in deciding what the proper penalty is, and then if

imprisonment is thought to be appropriate to consider

suspension of the sentence if the prospect of rehabilitation

is a sufficiently weighty factor in all the circumstances to

warrant suspension."

7. Having referred to the respondent Everett's age and personal circumstances, the absence of previous convictions, the more significant role played by others, the fact that the gun was unloaded, his co-operation with the police and his remorse as evidenced by an immediate plea of guilty, he determined that the appropriate penalty was a sentence of imprisonment for twelve months. His Honour then gave consideration to the suspension of the whole or part of that sentence. He said that he adopted the approach of Burbury CJ in Jones v Fleming (1957) Tas SR 1 at 4, namely:

"The modern approach to the juvenile offender as recognized

by the courts implies the realization that a juvenile

offender should be given every reasonable opportunity to

reform, rather than that he should be exposed to the

possible corrupting influence of other inmates of the gaol

and thereby be set on a path of crime."

and that the conclusion of Burbury CJ, 4-5:

"In the case of a young man of this age who has had no

previous conviction involving dishonesty or previous

conviction of a serious crime, he should not be sent to gaol

unless the nature of his crime is such that it is clearly

the duty of the court to give effect to the deterrent aspect

of punishment as outweighing other factors."

did not, he believed, conflict with the logic expressed by

Neasey J in R v Percy (supra).

8. His Honour's conclusion was that the respondent Everett would not re-offend, that further time spent in prison would be likely to impede the progress of rehabilitation, that it is in the public interests that an 18 year old be afforded the opportunity of rehabilitation and that the suspension of a sentence should operate as a form of future deterrence.

9. With respect, I would not challenge either of the statements of principle relied upon by his Honour, but both are subject to qualifications which are implicit in their authors' own words. Thus Burbury CJ's dictum is confined to cases other than those where "the nature of his crime is such that it is clearly the duty of the court to give effect to the deterrent aspect of punishment as outweighing other factors", while that of Neasey J to those cases where "the prospect of rehabilitation is a sufficiently weighty factor in all the circumstances to warrant suspension". It must be weighed against all the circumstances including the need for deterrence. That need may, depending upon the nature of the crime, so outweigh the desirability of facilitating the prospects of rehabilitation that any suspension may be inappropriate. Alternatively, it may be accommodated by a partial suspension of the sentence. In those cases in particular, where general deterrence is a significant factor, the final sentence must be one which pays due regard to that factor.

10. The Attorney-General submits that his Honour erred in that he failed to give any, or any adequate, weight to the question of general deterrence when imposing the sentence and that the sentence was manifestly inadequate having regard to all the circumstances of the case.

11. In R v Percy (supra) Green CJ rejected the applicant's submission that as that was a serious case of dangerous driving, the learned trial judge was obliged to conclude that the aspect of general deterrence should have prevailed over all others. At 64-65 he said:

"There is nothing in the Traffic Act 1925 or elsewhere which

suggests that the principles applicable to the exercise of

the sentencing discretion in relation to the offence of

dangerous driving differ in any way from those applicable to

other offences. It is no doubt correct to say that the fact

that in 1957 Parliament chose to increase the maximum

penalties which could be imposed upon conviction for the

offences of reckless driving or dangerous driving and

directed that in certain circumstances those offences should

be treated as crimes should be regarded as an indication

that the courts were to henceforth regard those offences

more seriously. But that amendment did not have the effect

of cutting down the breadth of the sentencing discretion

and, in particular, it did not have the effect of relieving

a sentencing court of its obligation to consider in each

case which of the objects of general deterrence, particular

deterrence or reform, should be given greater emphasis. It

may well be the case that in the majority of serious cases

of dangerous driving sentencing courts have concluded that

general deterrence should be the primary object, but that

empirical observation does not support any general statement

of principal as to the way the sentencing discretion ought

to be exercised in any particular case."

12. In the same case Neasey J, having referred to a number of previous cases of dangerous driving where the court had said that good character and youth were entirely subordinate to the deterrent aspect of punishment, himself said at 72:

"The opinions cited from these cases, though stated in

strong terms, are not, of course, statements of principle or

rules of law. They are statements of the commonly perceived

view of the judges who comprised those courts as to the

gravity of serious cases of dangerous driving and the need

for deterrent sentences in such cases. Judicial opinion as

to the gravity of particular types of offences, and indeed,

sentencing policy in general, may change over a period of

time. In the situation which obtains under the Tasmanian

Criminal Code of an overall maximum penalty of twenty-one

years' imprisonment, and no minimum penalties, general

considerations of sentencing policy in respect of particular

offences depend in the final analysis upon the judicial

outlook in that regard of the Court of Criminal Appeal in a

given time, subject to binding decisions of the High Court

of Australia should there be any."

13. Undoubtedly there are types of offences the gravity of which is such that they are consistently treated as calling for sentences which emphasise the aspect of general deterrence. The most obvious is that of murder where the legislature has imposed a mandatory sentence of actual imprisonment for life. Rape is another offence recognised as normally calling for a sentence of actual imprisonment for a significant period of time. Even in cases of extreme youth and prior good character the courts have consistently held that only a term of actual imprisonment could fulfil the requirement of deterrence in the case of rape (see Thompson v R, Unreported 21/1971 and George v The Queen [1986] TASSC 19; (1986) Tas R 49, both offenders being 15 years of age and of unblemished character otherwise). In relation to the crime of escape by prisoners serving sentences, the courts have consistently stressed the paramountcy of general deterrence in sentencing (Wills v Shearing, Unreported Crawford J 72/1966, Bailey v Kupsch, Unreported Chambers J 24/1971, R v Payne (1976) 2 NSWLR 446 and The Queen v Turner and Clarke (1992) 65 A Crim R 178). R v Causby (1984) Tas R 54 is another instance of serious crime (non consensual indecent assault upon a 15 year old boy by one aged 17 years) where the need for general deterrence out-weighed the youth and previous good conduct of the offender and required the imposition of an actual sentence of imprisonment notwithstanding the respondent's good prospects for rehabilitation.

14. In recent decisions of this Court emphasis has been given to the seriousness of the crime of armed robbery and to the need for sentences to adequately address the requirement for general deterrence. While even armed robberies can vary in the degree of their seriousness, those where firearms are used (whether loaded or not) are viewed particularly seriously (Devine v R, Court of Criminal Appeal 70/1993 and R v McFarlane, Court of Criminal Appeal 113/1993). There was in this case, therefore, a clear requirement that notwithstanding the youth and prior good behaviour of the offender and his prospects of rehabilitation, the sentence should reflect the need to deter others from engaging in this kind of conduct. In my respectful opinion a sentence of twelve months' imprisonment the further execution of which, after nearly three months' incarceration on remand, was wholly suspended, did not adequately recognise that need. Though it may have operated as an adequate "form of future deterrence" for the respondent Everett, it does not have that effect as a general deterrent. In my view, although there was room for a partial suspension of the sentence, the proper response called at a minimum for a higher sentence and the suspension of only such part as would ensure that the offender served an actual further sentence of some significance before being released on appropriate conditions.

15. In respect of the respondent Phillips, what I have said applies a fortiori. His Honour found him the more culpable of the two though "not significantly so". He was 19 months older, was not wholly without a prior record and the other mitigating factors in his case, though not less cogent than those in that of Everett, were no more so. He had spent less than 3 weeks in custody. His Honour found that "In substance the same considerations apply as have been considered in the case of his co-offender and it is not appropriate to deal with his any differently". The learned Director of Public Prosecutions did not take issue with that view. In Phillips' case, too, the proper sentence was a significantly higher one with the portion, if any, suspended no greater than that suspended in the case of his co-offender. In each case it would have been appropriate to give credit for the different periods in custody spent by each.

16. In Phillips' case his Honour expressed agreement with the concern expressed by Everett J in Goodman v Schindler, Unreported 16/1980 at 5-6 where he adopted the observations given by the Queensland Court of Criminal Appeal in R v Draper (1970) QWN No20 at 49 where Hoare J said:

" ... in most instances the imposition of such sentences

(that is, short sentences) is quite out of keeping with the

thoughts of most modern penologists. With our present penal

system short sentences are regarded as useless at best, and

in most cases positively harmful.

One strong argument against the imposition of short prison

sentences which is of particular application to younger

offenders is that there is a considerable fear of the

unknown in all of us. So long as an individual without

prison experience has the threat of possibly being sent to

prison it is reasonable to expect that there will be some

deterrence from that threat. However if the fear of the

unknown is removed by sending him to prison for a short

term, the benefits of the threat are lost for all time."

17. With respect, these observations do not support a proposition that as sending an offender to prison for a short time may be useless or harmful and may in the case of a young offender remove the fear of the unknown as a deterrent to him, offenders otherwise meriting short sentences should not be sent to gaol at all. On the contrary, in Draper the criticism was of suspending a 2 year sentence so as to reduce the actual term of imprisonment to a mere three months. The Court of Criminal Appeal affirmed the head sentence and increased the period to be served to 12 months before the execution of the balance was suspended. The remark should be seen in that context. Of course, it is in the interests of the community that offenders should be encouraged to reform and it is sadly the fact that the prison system corrupts some of its inmates and impedes their prospects of rehabilitation. Such a consideration was highly relevant in the case of Goodman v Schindler (supra) where Everett J was dealing with the appeal of a youth sentenced to 3 days' imprisonment for using indecent language at a cricket ground and where the need for a general deterrent was far less apparent, but it cannot be elevated to such a status that it over-rides all other considerations.

18. The question now is whether this Court should give leave to appeal to the Attorney-General in either case, allow the appeal and substitute a greater sentence. With regret I think it is appropriate to do so in each case for it is unfortunate that these young men, having been released from custody last October, should now be reincarcerated. Intervention by the Court of Criminal Appeal on the application of the Crown should be rare and reserved for clear cases (per Nettlefold J in R v Hancox, Unreported Court of Criminal Appeal 46/1980 and see also Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293 per Barwick CJ at 310 and Malvaso v The Queen [1989] HCA 58; (1989) 168 CLR 227 per Deane and McHugh JJ at 234-235). In the present case the imposition of manifestly inadequate penalties on the perpetrators of a very serious crime which the court is aware has become prevalent in recent times and which is of a nature to cause alarm in the community calls for our intervention. Judges of this Court have previously observed that the robbery of vulnerable persons including taxi drivers or those in charge of small shops will normally require, in the public interest, the imposition of a sentence of general deterrence (eg, R v M A Devine, Court of Criminal Appeal 95/1992). The present sentence was in my view a significant departure from a recognised pattern of sentencing such as to call for the interference of this Court (see R v Graham, Court of Criminal Appeal 18/1979 per Cosgrove J at 2).

19. In my view there is nothing in the conduct of the Crown in its presentation of the case to the learned judge passing sentence which militates against granting the Attorney-General leave to appeal. In R v Tait (1979) 46 ALR 386 the Full Court of the Federal Court said at 476-477:

"It would be unjust to a defendant to expose him to double

jeopardy because of an error affecting his sentence, if the

Crown's presentation of the case either contributed to the

error or led the defendant to refrain from dealing with some

aspect of the case which might have rebutted the suggested

error. The Crown has been said not to be concerned with

sentence (see, eg Lawrence J in Paprika Ltd v Board of Trade

(1944) 1 All ER 372 at 374; (1944) 1 KB 327 at 332), but

when a statutory right of appeal is conferred upon the

Crown, that proposition must be more precisely defined. It

remains true that the Crown is required to make its

submissions as to sentence fairly and in an even-handed

manner, and that the Crown does not, as an adversary, press

the sentencing court for a heavy sentence. The Crown has a

duty to the court to assist it in the task of passing

sentence by an adequate presentation of the facts, by an

appropriate reference to any special principles of

sentencing which might reasonably be thought to be relevant

to the case in hand, and by a fair testing of the

defendant's case so far as it appears to require it. If the

proposition that the Crown is not concerned with sentence

was ever construed as absolving the Crown from this duty, it

cannot be so construed when a Crown right of appeal against

sentence is conferred. The Crown is under a duty to assist

the court to avoid appealable error. The performance of

that duty to the court ensures that the defendant knows the

nature and extent of the case against him, and thus has a

fair opportunity of meeting it. A failure by the Crown to

discharge that duty may not only contribute to appealable

error affecting the sentence, but may tend to deprive the

defendant of a fair opportunity of meeting a case which

might ultimately be made on appeal. It would be unjust to a

defendant, whose freedom is in jeopardy for the second time,

to consider on appeal a case made against him on a new basis

- a basis which he might have successfully challenged had

the case against him been fully presented before the

sentencing court."

20. In my opinion the Crown's presentation of the case could not be said to have contributed to the error into which the learned sentencing judge fell.

21. In R v Wilton (1981) 28 SASR 362 King CJ made reference to the above passage from R v Tait and said at 368:

"In my opinion, this Court should allow the prosecution to

put to it, on an appeal against sentence, contentions which

were not put to the sentencing Judge, only in exceptional

circumstances which appear to justify that course. I

endorse with respect what was said in Tait and Bartley

(1979) 24 ALR 473 as to the duty of prosecuting counsel

before the sentencing judge. In particular where a

submission is made by counsel for a convicted person that a

sentence should be suspended or a possible suspension is

mentioned by the judge, and this course is regarded by the

prosecution as beyond the proper scope of the judge's

discretion, a submission to that effect should be made.

Generally speaking, if the submission is not made to the

sentencing judge the prosecution should not be able to

advance that contention successfully on an appeal by the

Attorney-General."

22. I think there is a danger in applying his Honour's words in respect of a contention that a sentence of imprisonment should or should not be suspended literally. In this State a judge has an unfettered discretion to suspend the whole or any part of a sentence (Criminal Code, s386). In South Australia, on the other hand, at the time when R v Wilton (supra) was decided, a sentence could only be suspended under the Offenders Probation Act 1913, s4(2)(a) where the court was of opinion that having regard to:

(a) the character, antecedents, age, health or mental

condition of the person convicted;

(b) the trivial nature of the offence; or

(c) any other extenuating circumstances,

it was expedient to exercise the power to do so. Although the court in that case was persuaded that Crown counsel in the court below had little or no warning of the course the trial judge intended to adopt, namely to suspend the execution of the sentence and accordingly the court was prepared to grant leave, the words of King CJ were directed to the situation where a sentencing judge was invited to or indicated an intention to apply the Offenders Probation Act provision in circumstances which were arguably inappropriate. According to the court, Wilton's offence could not be said to be trivial, nor were there any extenuating circumstances. King CJ said at 366:

"In this case the discretion to suspend existed therefore

only if the learned sentencing Judge was of opinion that one

of the matters mentioned in par (a) or several of them taken

together rendered it expedient to suspend the sentence. I

think that it is clear from his remarks in imposing sentence

that he was not of that opinion."

23. It appears the sentence was suspended because co-offenders were not subjected to immediate incarceration and the sentencing judge felt constrained by the need to avoid disparity to produce the same result in the case of Wilton. It was in those circumstances that King CJ's remarks were made. Had Crown counsel in that case been apprised of the sentencing judge's intention to invoke a power without forming the opinion which would alone give rise to the discretion to suspend and to base his purported exercise of the discretion to suspend upon an extraneous consideration, a failure to submit that this course was regarded by the prosecution as beyond the proper scope of the judge's discretion was held to be a significant factor in determining whether leave should be granted to the Crown to dispute the matter by way of appeal and to argue that the statutory preconditions were not present.

24. In the present case, however, it was common ground that the offence was serious but that the respondents otherwise had a claim to rehabilitative measures. Failure by the Crown to protest at the suggestion of a partial suspension of the sentence, a course which I propose on the disposition of this appeal if leave is granted, is not a fair subject of criticism; nor, with respect, is the Crown's failure to submit that the suspension of the balance of any sentence to be imposed by the judge at first instance would produce error in the form of a manifestly inadequate sentence. While there may be exceptions, I think it is expecting too much of Crown counsel that he or she should make submissions of that kind merely because counsel for the defence presses, perhaps over optimistically, for a very lenient sentence or even because the learned sentencing judge may hint at the possibility that such a sentence might be appropriate.

25. I would grant leave to appeal in each case, uphold each appeal and substitute another sentence. In view of the anxiety endured by the respondents in the last five months over the possible outcome of these proceedings, I think the otherwise appropriate sentence may be tempered to take account of that fact. I agree with the sentences proposed by my brother Crawford J, namely in the case of the respondent Everett that he be sentenced to imprisonment for one year six months, the last twelve months of which should be suspended upon condition that he commit no crime or offence involving dishonesty or violence to the person for a period of two years following his release from prison and also on condition that for a period of one year following his release from prison he submit to the supervision of a probation officer and comply with his or her reasonable directions. In the case of the respondent Phillips he should be sentenced to imprisonment for one year nine months, the last twelve months of which should be suspended on the same conditions. Both sentences should date from to-day.

CRAWFORD J In separate applications heard at the same time the Attorney-General seeks leave to appeal against sentences imposed at Burnie on 22 October 1993. Both respondents pleaded guilty to aggravated armed robbery. Each was sentenced to imprisonment for 12 months. Dwayne Edward Everett's sentence was fixed to commence on 28 July 1993 being the day upon which he was taken into custody and charged with the crime. Adam Dez Phillips' imprisonment was to commence on 4 October 1993 which was the day upon which he was remanded in custody by the learned judge following his plea of guilty In each case the further operation of the sentence of imprisonment was suspended by an order in these terms:

"2 That the operation of all of that sentence yet to be

served as from 22 October 1993 be suspended on condition

that:

- he commit no crime or offence involving dishonesty or

violence to the person for a period of two years;

- he enter into a bond to be of good behaviour for a period

of two years, such to be under the supervision of a

Probation Officer."

2. The second condition of suspension is, with respect, inappropriate. Provision was made by the Probation of Offenders Act 1934 for courts to order persons to enter into recognisances to be of good behaviour, or good behaviour bonds as they were commonly known, but it was replaced by the provision for probation orders with the enactment of the Probation of Offenders Act 1973. If a judge wishes to place a person under the supervision of a probation officer, a probation order containing that requirement can be made or one of the conditions of a suspended sentence can be, for example, that the person submit to the supervision of a probation officer and comply with that officer's reasonable directions. However notwithstanding the problems which might arise out of his Honour's second condition of suspension of the imprisonment, it was not made the subject of a ground of the applications and need not be mentioned further.

3. The crime was committed at about 11.20pm on 9 July 1993. Late in the afternoon the thought of committing a crime of this nature was raised by Phillips with Everett. It had previously been raised with Phillips by others. Although Everett may not at first have taken Phillips seriously they resolved to commit the crime. Phillips contacted the owner of a double barrelled shotgun and arranged to borrow it for the purpose of the robbery. For its use he later paid its owner $100 from the proceeds. A beanie converted into a balaclava was also obtained from the owner. Early in the night they went into the city with dark clothes and with another beanie. They met the owner of the shotgun in a hotel car park to take delivery of it and went to a beach where Everett made a balaclava out of the second beanie and they practised manipulation of the gun.

4. They waited for time to pass, no doubt for a quiet time of the night, and at 11.20pm both entered the Piccadilly Milk Bar wearing the balaclavas and dark clothing. Everett carried the shotgun which was not loaded. The only person in the shop was a female shop assistant aged 39 years. Phillips went behind the counter and stopped at the cash register. Everett stood on the other side of the counter. He held the gun against his hip and pointed it in the general direction of the shop assistant, although the learned judge found it was not pointed directly at her body. Phillips ordered her to get down. On instructions she opened the cash register and lay face down on the floor. Phillips sounded confident. There was no urgency in his movements. Everett did not speak. One of them took $948 from the till. Two packets of cigarettes were also taken. They then left and divided the proceeds. Nothing was recovered from them.

5. The learned judge found that the shop assistant suffered the trauma one would expect of any person confronted with those circumstances. Her first reaction was one of "coldness" and thought for her three children. Upon the departure of the two men she contacted the police and was able to make a statement. Believing that she had recovered from her experience, she continued with her normal life. Some eighteen days later she began to experience flash back visions of a man wearing a balaclava. This experience persisted and she became anxious and sleepless. Prior to the robbery she had been stable and enjoyed normal family life. The robbery affected her home life and prevented her from taking up or continuing with casual employment which required a 6.30am start. It was to be hoped that she would achieve a gradual resolution of an adjustment disorder which was afflicting her. She continued to have, quite understandably, long term uneasiness about being alone at night. She would no doubt continue to experience anxiety concerning people wearing balaclavas and her ability to cope with unexpected traumatic events would be reduced.

6. The learned judge found that two other men "involved" Phillips in the commission of the crime and he in turn involved Everett who "continued his involvement through his friendship with and loyalty to Mr Phillips". His Honour accepted that Everett's conduct flowed from stupidity, boredom and immaturity rather than a criminal propensity.

7. Everett was born on 27 June 1975 and was therefore 18 years of age at the time of the crime. He had no prior convictions, not having previously appeared in a court charged with any offence. He had never been in any significant trouble. He was a member of a stable and caring family. No behavioural problems had been encountered during seven years' attendance at Marist Regional College where he was considered to be very well behaved and popular with students and staff and as not having demonstrated any aggression towards his peers. However at school it had been recorded that in any decision making process he had been easily led, "a follower, not a leader". For the first two months of the 1993 school year he attended Hellyer College but was easily distracted and his attendance was irregular, and in April it ceased by him "drifting away". Notwithstanding his poor performance at Hellyer College his general behaviour had not presented any problems and he was described as a polite and pleasant young man with a good sense of humour, but one who was easily led by his peers.

8. Contrary to the preference of his parents, but nevertheless with their support, he moved out of home in March 1993 and lived in a flat with other young people. Phillips became a regular visitor to the flat. Everett's conduct deteriorated and culminated in the commission of the crime. He was unemployed, spending too much money on alcohol and plainly was wasting his time. Following the crime and before his arrest he returned to live in the family home having been evicted from the flat because of unpaid rent.

9. A pre-sentence report regarding Everett concluded:

"This offence would appear to be completely out of

character. Many people have been interviewed in relation to

their knowledge of Everett and, without exception, all

expressed shock that he would have committed such an offence

and believe that his susceptibility to peer pressure from

others who have been similarly charged, was the probable

reason."

10. A number of testimonials as to Everett's character spoke very well of him. For example the principal of Marist Regional College spoke of him as "an honest, friendly, courteous and compassionate person" whose "gentle manner, sense of humour, and concern for others made him popular with his peers. At the same time, he always maintained genuine respect for those in authority and he was well liked by his teachers. In all my dealings with Dwayne, I have found him to be trustworthy, candid and polite. He is a very sensitive person. He always spoke truthfully and straightforwardly. It is difficult, therefore, for me to imagine that Dwayne could be fully responsible for the crime of which he is accused. It is not in his nature to display such drastic and violent behaviour."

11. A psychiatric report revealed no disorders. It suggested that he "was of dull, average intelligence as judged by a restricted vocabulary, poor verbal facility and poor capacity for abstract thought" and commented that "a stable and supportive family background was not sufficient to prevent a realistically recognised bleak socio-economic future from contributing to the background against which this increasingly common crime occurs."

12. As mentioned earlier the learned judge found that two other men "involved" Phillips in the commission of the crime and he in turn involved Everett. His Honour's comment that Phillips was the instigator must be understood in that light and also in the light of his Honour's statements that "he is entitled to be regarded as a co-offender" and "he should be regarded as being more culpable than Mr Everett but not significantly so".

13. Phillips is 19 months older than Everett. He was born on 26 November 1973 and was therefore 19 years of age at the time of the crime. Since attaining 17 years of age he had been fined for committing a nuisance, assault, injuring property and abusive language and he was sentenced to 16 days' imprisonment in June 1992 for failing to pay fines (but avoided gaol by then paying). So he had a record for offences but his Honour correctly described it as not serious nor extensive. His Honour adopted counsel's expression that Phillips had led an unexceptional life. He came from a stable and caring family. Both his parents were employed. He had lived at home all his life. He was educated to Grade 10 at Burnie High School, leaving at the end of 1989 at the age of 16 having completed his core subjects at Level I. No significant behavioural problems were encountered there. His leaver's reference was not encouraging but it was in no way critical. One of his former teachers described him as a quiet, well mannered and co-operative young man who could have achieved better results if he had applied himself and one who was a "follower" and not a "leader".

14. On leaving school he was employed by a chainstore as a storeman and sales assistant for two years until a re-organisation of the store made him redundant. He had since been unemployed. His former supervisor described him as very responsible, friendly and committed and a good worker, one who would be among the first to be considered if a position arose within his capacity. Testimonials supported the view that he was of good character. He had over indulged with alcohol and was a little rowdy at times but everyone to whom a probation officer had spoken for a pre-sentence report had expressed shock at his involvement in a crime of this magnitude.

15. The learned judge took into account when sentencing Everett that he had shown remorse as evidenced by his plea of guilty. No such comment was made by his Honour when sentencing Phillips but I think the same comment is appropriate for him. Before this Court the Director of Public Prosecutions accepted that both the respondents had expressed remorse and co-operated, Phillips more so than Everett.

16. His Honour regarded Phillips as being more culpable than Everett but not significantly so and thought it inappropriate to deal with them differently. I did not understand the Director to take issue with that, but he submitted that the result of the sentence was that Everett, who was slightly less culpable, spent eighty-five days in custody whereas Phillips spent only eighteen days. The learned judge's response to that problem was that it could not be avoided and that to require Phillips to immediately serve a short period of imprisonment to balance their treatment was an undesirable course. His Honour also determined that all of the balance of any term of imprisonment he would impose should be suspended in both cases, for any further time in prison would be likely to impede the process of rehabilitation for both prisoners. Any sense of unfairness Everett might feel was therefore unavoidable. In any event if they breached a condition of suspension and came to serve the balance of the imprisonment parity would be achieved.

17. It is clear that the learned judge was troubled by what he saw as the need to balance the seriousness of the crime, which demanded imprisonment, with the young ages and positive features in the characters and antecedents of the offenders, which called for sentences with rehabilitation as their primary aim. In each case his Honour concluded that a sentence of imprisonment was plainly required but that the further execution of it should be suspended, because the public interest in affording them opportunities for rehabilitation was not outweighed by the need for further incarceration to give effect to general deterrence as an aspect of punishment. There was a significant basis for concluding that both would not re-offend and his Honour thought that further time in prison would be likely to impede the process of rehabilitation.

18. In both cases the grounds of the application for leave to appeal are:

1 The learned judge erred by failing to give adequate weight

to the question of general deterrence when imposing the

sentence.

2 The learned judge erred by imposing a sentence which was

manifestly inadequate having regard to all the circumstances

of the case.

19. When addressing the second ground the Director of Public Prosecutions submitted that the sentences of one year's imprisonment were manifestly inadequate and that suspension of most of the terms of imprisonment added to the inadequacy. When addressing the first ground the Director submitted that the learned judge gave too much weight to the rehabilitative aspect of sentencing and too little weight to the need to impose a sentence of significant general deterrence for a crime of this nature. The error complained of in the first ground, if it is to be found, is in the terms of the sentence itself and not so much in anything said by the learned judge in the course of passing sentence, so that the first ground should not succeed unless the manifest inadequacy asserted by the second ground is established. Questions of rehabilitation and general deterrence also arise when considering the second ground.

20. The conflicting considerations which arise in cases such as these were referred to by Burbury CJ in Jones v Fleming (1957) Tas SR 1 at 4 and 5:

"The modern approach to the juvenile offender as recognized

by the courts implies the realization that a juvenile

offender should be given every reasonable opportunity to

reform, rather than that he should be exposed to the

possible corrupting influence of other inmates of the gaol

and thereby be set on a path of crime.

...

In the case of a young man of this age who has had no

previous conviction involving dishonesty or previous

conviction of a serious crime, he should not be sent to gaol

unless the nature of his crime is such that it is clearly

the duty of the court to give effect to the deterrent aspect

of punishment as outweighing other factors."

21. The sentences of twelve months' imprisonment were in my view lower than what the crimes and the culpability of the offenders deserved. An armed robbery of retail or commercial premises at night, involving the use of a firearm, loaded or unloaded, is a crime of considerable gravity. In R v McFarlane A113/1993, I agreed with Burbury CJ in Osborne v R 58/1970 that armed robbery is one of the most serious crimes in the calendar and I adhere to that view although acknowledging that robberies vary like all crimes in the degree of their seriousness.

22. When a young person with no significant record for prior offences comes before a court to be sentenced for a crime of considerable gravity, as is the case here, the court is faced with the dilemma of choosing the appropriate punishment because of the competing considerations which particularly arise concerning young persons. No doubt difficult socio-economic conditions, with many of the young unable to obtain employment, have caused part of the undoubted increase in the number of armed robberies in recent years. It is partly because of that increase that a need for substantial prison terms by way of punishment is demanded in most cases. General deterrence in particular must count highly as a consideration in the sentencing process along with retribution. Of course courts must also give anxious consideration to the question whether a young person should be sent to prison for a lengthy term or at all, but the need for a punishment which hopefully will act as one of real deterrence to other persons, including young persons, must be recognised in the case of a crime such as this. Those who commit armed robberies are commonly young. The conclusion to which I have come is that the gravity of the crime, and the criminal conduct of both respondents on this occasion, required a sentence greater than imprisonment for one year notwithstanding their youth and good character. Consideration of the need to deter the commission of such crimes and to denounce their commission are the main influences for coming to that conclusion. However because of their good character and background, and particularly because the commission of the crime appears to have been so contrary to their nature, twenty-one months' imprisonment would be sufficient recognition of the gravity of their crimes, in their circumstances of youth and character.

23. Having regard also to the suspension by his Honour of most of the one year's imprisonment he imposed I respectfully conclude that the sentences imposed were manifestly inadequate. The learned judge saw that there was a significant basis for concluding that neither of the respondents would re-offend and that further time in prison would be likely to impede the process of rehabilitation. Particular regard was paid by his Honour to the public interest in allowing a young man to be afforded the opportunity of rehabilitation. But with respect to his Honour, it is my opinion that the gravity of the crime was such that the court had a duty to give effect to the deterrent aspect of punishment as outweighing such considerations by requiring a significant part of the sentences to be served immediately. By imposing imprisonment for only one year and suspending so much of it in each case was an error amounting to manifest inadequacy in the sentences. For these reasons I would grant leave to appeal, allow both appeals and set the sentences aside.

24. When considering the appropriate sentences it should nevertheless be recognised that there is a basis for concluding that the respondents are unlikely to re-offend and that the hardship of imprisonment should be ameliorated to some extent by partly suspending the appropriate sentences. Having regard to the fact that Phillips' culpability was slightly greater than that of Everett and to the fact that Everett has already spend eighty-five days in prison compared to Phillips' eighteen days, the sentence I would impose would be as follows. Dwayne Edward Everett should be sentenced to imprisonment for one year, six months the last twelve months of which should be suspended upon condition that he commit no crime or offence involving dishonesty or violence to the person for a period of two years following his release from prison and also on condition that for a period of one year following his release from prison he submit to the supervision of a probation officer and comply with his or her reasonable directions. Adam Dez Phillips should be sentenced to imprisonment for one year, nine months the last twelve months of which should be suspended on the same conditions. Both sentences should date from today.

25. Counsel raised the question whether any special consideration should be given to the fact that the court is hearing applications by the Attorney-General for leave to appeal against sentence. In R v Dowie [1989] TASSC 44; 1989 Tas R 167 at 180 Underwood J, with whom Nettlefold J agreed, had this to say:

"Although the Criminal Code, s402(4) draws no distinction

between a convicted person's appeal against sentence and a

Crown appeal against sentence this court has always

recognised the need to protect an accused person or a

respondent to a Crown appeal against unfairness or

injustice. Should there arise on a Crown appeal against

sentence a real prospect of unfairness or injustice by

allowing an appeal from a sentence imposed as a result of an

erroneous exercise of the sentencing discretion, that fact

should be taken into account and the appeal dismissed."

26. The applications for leave to appeal should be granted, the appeals allowed and fresh sentences imposed because the sentences imposed by the learned judge were manifestly inadequate. Inadequacy alone is not an error in a sentence of course unless it is so manifest as to be plainly an error in point of principle. The only suggestion from counsel of any unfairness or injustice to the respondents which might result to them if an error in the sentences was established and immediate sentences of imprisonment were imposed arose from the fact that they were once in custody pending disposition of the charges and were then set free last October, and have remained at liberty ever since. The Director said that he acknowledged that as a difficulty and a hurdle for the success of the applications. However I am not persuaded that it should be. If the sentences were inadequate to the point of error then justice was not done and the situation should be put right. The crime was committed last July and a delay of some eight or nine months until sentencing is a frequent experience. The Crown has not failed to use due diligence and there has been no unreasonable delay in resolving the charges. This Court has previously increased the severity of a sentence on the ground of manifest inadequacy in similar circumstances. See for example R v Solberg 44/1987 where the respondent had been at liberty for over three months and R v O'Brien 43/1987 where the period was seventeen days.

27. Zeeman J has suggested unfairness to both respondents arising out of the fact that their counsel and the learned judge mentioned the possibility that sentences of imprisonment which would be wholly or partly suspended might be appropriate but counsel for the Crown sought to make no submissions in reply about that. Counsel for Phillips submitted that his Honour should impose a substantial period of suspended imprisonment and counsel for Everett submitted that a term of imprisonment, either partly or wholly suspended, was an option available to his Honour. In the course of subsequent discussions between his Honour and counsel for both accused about the appropriate commencement date for sentences of imprisonment and the need for parity between the sentences, his Honour mentioned the possibility of partly or wholly suspended sentences of imprisonment being imposed.

28. In R v Tait (1979) 46 FLR 386 at 389 the Full Federal Court referred to the duty of the Crown to assist a sentencing court to avoid appealable error and said that "it would be unjust to a defendant to expose him to double jeopardy because of an error affecting his sentence, if the Crown's presentation of the case ...... contributed to the error". These views were accepted by the court in R v Wilton (1981) 28 SASR 362 where at 368 King CJ, with whom the other members of the court agreed, said that on appeal it should only be in exceptional circumstances that the court will allow the prosecution to put contentions which were not put before the sentencing judge.

29. Tait and Wilton involved Crown appeals against sentence. But in this State, by reason of the Criminal Code, s386(13), the failure of the prosecutor to exercise his right under subss(11) and (12) to address the sentencing court with respect to inter alia the appropriateness of a kind of sentence may not be taken into account by this Court "in determining an appeal against that sentence by the Attorney-General pursuant to section 401(2)(c)". There is, of course, a two stage process when the Crown wishes to appeal against sentence. Leave to appeal must first be obtained. The provisions of subs(13) do not apply literally to an application for leave. However, if this Court applied the views expressed in Tait and Wilton when dealing with applications for leave and only allowed the Crown in exceptional circumstances to put contentions which were not put before the sentencing judge, the clear intention of Parliament that in Crown appeals such a consideration is immaterial would be frustrated. Subs(13) would rarely have application. For this reason it is my opinion that the failure by the prosecutor to exercise the right under s386(11) and (12) should not usually be taken into account against the Crown when considering an application for leave. However, I would not go so far as to say that it may never be taken into account on an application for leave.

30. Another relevant point is that the sentences imposed by the learned judge were manifestly inadequate not only because they were wholly suspended but also because the lengths of the terms of imprisonment were too short. Counsel for the Crown had no duty to make submissions concerning the length of the terms and I think that affords another reason why the failure of counsel to address on the question of suspension should not lead to dismissal of the application for leave to appeal on the ground of unfairness.

ZEEMAN J Each of the respondents pleaded guilty to one count of aggravated armed robbery. Each respondent was sentenced to twelve months' imprisonment, commencing on the date upon which he was taken into custody, but suspended, to the extent that it had not been served as at the date of the imposition of sentence, on the following conditions:

1 that he commit no crime or offence involving dishonesty or

violence to the person for a period of two years; and

2 that he enter into a bond to be of good behaviour for a

period of two years, such to be under the supervision of a

probation officer.

2. It is appropriate to observe that the second of those conditions was an inappropriate condition. The long repealed Probation of Offenders Act 1934 provided that a court might order that an offender enter into a recognisance and for statutory consequences in the event of a breach of such a recognisance. No such provision appears in the Probation of Offenders Act 1973. The condition imposed by the learned sentencing judge did no more than require the relevant respondent to enter into a bond. I observe that neither respondent appear to have done so. It seems that the relevant court officer erroneously construed the condition as amounting to the making of a probation order. Whether a failure to comply with the terms of such a bond, if entered into, would have any legal consequences may be doubted. Certainly a failure to comply with its terms would not activate the discretion conferred by the Criminal Code ("the Code"), s386A(2). In circumstances such as the present the making of a probation order would be inappropriate as it would expose the offender to the possibility of double jeopardy. A particular act or default on his part might be the occasion to put the suspended sentence into effect and might also constitute a breach of the probation order which would expose him to the risk of further punishment. The purpose evidently in the mind of the learned sentencing judge is best achieved by suspending a sentence on terms that for a specified period the offender be of good behaviour and submits to the supervision of a probation officer.

3. In each case the Attorney-General seeks leave to appeal against the sentence imposed. The applications were heard together and rely upon the same grounds. Those grounds are as follows:

"1 His Honour erred in that he failed to give any or any

adequate weight to the question of general deterrence when

imposing the sentence.

2 His Honour erred in that he imposed a sentence which was

manifestly inadequate having regard to all the circumstances

of the case."

4. The sentences imposed were imposed on 22 October 1993, Everett having been in custody since 28 July 1993 and Phillips since 4 October 1993. The difference between the periods of remand is accounted for by the fact that Phillips was released on bail pending his appearance for sentence whereas Everett was not.

5. The facts which gave rise to this matter were not in dispute. In the course of the afternoon of 9 July 1993, and prior to any involvement on the part of Everett, a number of men, including Phillips, discussed the possibility of committing an armed hold-up. Later in the afternoon Phillips met Everett. Phillips suggested that they commit an armed hold-up. Initially Everett may not have treated this as a serious suggestion but eventually the respondents determined that they would commit such a crime. Phillips arranged to borrow a shotgun from another man. That man was to be paid $100 for its use out of the proceeds of the robbery. The respondents travelled to Burnie with changes of clothing. Having obtained the firearm, they went to a beach and rehearsed its handling.

6. Having waited for the most appropriate time to commit the robbery, at about 11.20pm both respondents entered the Piccadilly Milk Bar at Burnie. It was open for business. The sole employee on duty was a 39 year old female. Both respondents were wearing balaclavas. Everett was carrying the shotgun which he pointed in the general direction of the employee. Phillips demanded of the employee that she open the till and lie on the floor. She complied with that demand. Phillips removed about $1,000 from the cash register and took some packets of cigarettes. Both respondents then fled the scene. Of the proceeds of the robbery nothing has been recovered.

7. There was placed before the learned sentencing judge a report from a psychologist in relation to the effect upon the female employee of the commission of the crime. The prognosis expressed in that report was in the following terms:

"At present I regard Mrs Grey as suffering an Adjustment

Disorder with Anxious Mood. Her symptoms are quite mild and

I doubt that she will develop Posttraumatic Stress Disorder

although this remains a possibility. The most probable

outcome is a gradual resolution of her anxiety but long-term

uneasiness about being alone at night, and of people wearing

balaclavas. In addition, Mrs Grey's ability to cope with

unexpected traumatic events has been significantly reduced

and if she suffers a psychological trauma in the future, her

memory of the Piccadilly holdup will almost inevitably

trouble her again."

8. The applicant Everett was born on 27 June 1975. He had no prior conviction for any offence. The material contained in the presentence report obtained by his Honour indicated that Everett was a member of a stable and caring family and had not manifested any behavioural problems whilst at school. Teachers described him as being well-behaved and popular with students and staff, although easily led. Some six months prior to the commission of the crime Everett had left the family home to share a house with other young people. The respondent Phillips became a regular visitor to that house. After the commission of the crime but before his arrest, Everett returned to live with his family. The probation officer who prepared the presentence report concluded that the crime appeared to be completely out of character. He ascertained that those who knew Everett were shocked to hear that he had committed such a crime and thought that the explanation was to be found in his susceptibility to peer pressure. Many character references placed before the learned sentencing judge supported the previous good character of Everett. A psychiatric assessment confirmed that Everett was immature and had an impulsive and suggestible personality. No evidence of mental disorder was found. The learned sentencing judge found that Everett involved himself in the commission of the crime by reason of his friendship with, and loyalty to, Phillips and that his involvement was indicative of stupidity, boredom and immaturity rather than criminal propensity. The applicant did not seek to challenge those findings.

9. The applicant Phillips was born on 26 November 1973. He had some prior convictions. Those prior convictions appear to have been for relatively minor breaches of the Police Offences Act 1935. Again, he came from a stable and caring family and no significant behavioural problems were observed during his school days. He was described by one of his former teachers as being a well-mannered and co-operative young man who could have achieved better results had he applied himself. This teacher described him as a "follower" rather than a "leader". The presentence report obtained by the learned sentencing judge was to similar effect as that obtained in relation to Everett. Those contacted by the probation officer who prepared the report expressed shock that Phillips should have committed the crime.

10. In the course of his comments on passing sentence, the learned sentencing judge said that Phillips should be regarded as more culpable than Everett, but not significantly so. Nevertheless he concluded that substantially the same considerations applied to both respondents so that it was not appropriate to deal with them in different ways. The learned Director of Public Prosecutions, who appeared for the applicant, accepted that that was an appropriate approach.

11. The learned sentencing judge was faced with a most difficult sentencing problem. On the one hand the respondents stood convicted of a quite serious crime, the seriousness and prevalence of which has led this Court on several occasions to conclude that in appropriate circumstances long custodial sentences ought to be imposed (see Devine v R A70/1993 and R v McFarlane A113/1993). On the other hand he was dealing with youthful offenders of previous good character. Particular principles of punishment have been expressed as applying to such offenders (Jones v Fleming (1957) Tas SR 1 and Lahey v Sanderson (1959) Tas SR 17).

12. The principle that a sentencing judge ought to avoid sending a youthful offender to prison is not one which is of universal application. In some circumstances the gravity of the crime may be such that the subjective requirement that the sentence imposed be rehabilitative in effect must yield to considerations of particular and general deterrence and the need to mark the condemnation of the criminal conduct (Lahey v Sanderson (supra) at 21 and Mathers v Rogers (1962) Tas SR 25 at 26). Armed robbery involving the use of a firearm is a crime of increasing prevalence which informed public opinion expects to be dealt with by sentences which mark strong denunciation of that kind of activity. The nature and prevalence of robberies involving violence or the threat of violence are such that courts must make it perfectly clear to those who might be minded to commit such crimes, be they youthful or not, that normally they will be visited with immediate and substantial terms of imprisonment.

13. In considering whether a sentence is manifestly inadequate regard may be had to its total effect. A sentence of imprisonment which in itself may not be manifestly inadequate may become so if its operation is suspended. Whilst the applicant argued that sentences of 12 months' imprisonment required to be served immediately would have been manifestly inadequate, its principal argument was that the respondents ought not to have been sentenced upon a basis which allowed them to go free immediately, albeit conditionally.

14. I have come to the conclusion that, whilst light, sentences of 12 months' immediate imprisonment could not be said to be so inadequate as to demonstrate some undefined error on the part of the learned sentencing judge. On the other hand, the suspension of most of those sentences is indicative of error. If leave were to be granted, I would uphold the appeals and impose a significantly more severe sentence on each of the respondents.

15. The question of leave must be considered as a distinct matter (Neal v R [1982] HCA 55; (1982) 149 CLR 305). The mere fact that an appeal would be upheld in the event that leave were given ought not to be determinative of the matter, as that would make the requirement that leave be obtained otiose, but the merits of a proposed appeal constitute a relevant consideration to the question of leave. At the same time it must be said that to the extent that public policy requirements pointing to the need for sentences having elements of general deterrence might suggest that leave ought to be granted, such requirements are capable of being given effect to by the making of some of the observations which I have made without the respondents actually being returned to prison.

16. The principles to be applied in considering an application by the Crown for leave to appeal against sentence were laid down by this Court in R v Dowie [1989] TASSC 44; (1989) Tas R 167. In that case, Underwood J, with whom Nettlefold J agreed, said, that "(o)n the determination of a Crown appeal against sentence brought pursuant to the Criminal Code, ss401(2), 402(4), there seems no good reason to depart from the principles expressed in R v Tait (1979) 46 FLR 386 at 387, 388." Notwithstanding his Honour's choice of words, a reading of his judgment makes it clear that he was speaking of the exercise of the discretion as to whether to grant leave to appeal. Tait was not such a case. It concerned an appeal and the court considered discretionary matters which might make it appropriate to dismiss such an appeal even where error has been demonstrated. The effect of Dowie seems to be that in considering whether to grant leave to the Crown to appeal against sentence, this Court ought to have regard to the same considerations as those referred to in Tait as providing a discretionary basis for the dismissal of such an appeal.

17. There is present a significant factor in each of the present applications which provides a strong reason to refuse leave. It was said by the Full Federal Court in R v Tait (supra), at 389:

"It would be unjust to a defendant to expose him to double

jeopardy because of an error affecting his sentence, if the

Crown's presentation of the case either contributed to the

error or led the defendant to refrain from dealing with some

aspect of the case which might have rebutted the suggested

error."

18. Of immediate relevance in this context are the observations of King CJ, with whom the other members of the court agreed, in R v Wilton (1981) 28 SASR 362, at 367-368:

"It is necessary to consider whether the prosecution should

be allowed to raise on the appeal the contention that the

sentence ought to have been suspended when that contention

was not put in the Court below. The consequences of

allowing the prosecution to do so are serious. The

respondent has faced the prospect of deprivation of his

liberty by way of imprisonment and has been spared, subject

to observance of the conditions of the bond. If the

prosecution is allowed to raise the contention he must again

face the prospect of imprisonment. This is what the Federal

Court meant in R v Tait by 'double jeopardy'. In my

opinion, this Court should allow the prosecution to put to

it, on an appeal against sentence, contentions which were

not put to the sentencing Judge, only in exceptional

circumstances which appear to justify that course. ...

where a submission is made by counsel for a convicted person

that a sentence should be suspended or a possible suspension

is mentioned by the judge, and this course is regarded by

the prosecution as beyond the proper scope of the judge's

discretion, a submission to that effect should be made.

Generally speaking, if the submission is not made to the

sentencing judge the prosecution should not be able to

advance that contention successfully on an appeal by the

Attorney-General."

19. In the present case counsel for Phillips expressly submitted to the learned sentencing judge that a wholly suspended sentence of imprisonment would be an appropriate way in which to dispose of the matter. Counsel for Everett did not go quite so far. However he put forward for consideration a number of sentencing options, one of which was a wholly suspended term of imprisonment. Later the learned sentencing judge had a discussion with counsel as to how he ought to treat the periods during which the respondents had been in custody. A reading of the transcript of that discussion makes it quite clear that his Honour was contemplating imposing sentences of imprisonment which would be wholly suspended insofar as their future operation was concerned. Counsel who then appeared for the Crown did not, at any stage of the proceedings, seek to advance any submission to the learned sentencing judge that it would not be appropriate for him to adopt such a course.The Code, s386(12) expressly authorised the making of such a submission. The Code, s386(13) does not preclude the Court from taking this matter into account on an application for leave as that provision is only concerned with the determination of an appeal after leave has been granted. The Court ought not to be astute to give that provision an operation which extends beyond its terms.

20. Insofar as the present applications raise any matter of general principle, they concern the weight which ought to be attached to the youthfulness of an offender in the case of a serious crime. That factor alone does not outweigh the factors which militate against the grant of leave. I have mentioned one such factor. There is one other factor which I mention. Each of the applicants was released from custody last October, having the expectation that, provided that there was compliance with the terms of the suspension, he would remain at liberty. To now return him to custody is a very harsh step indeed, although without more it would not have persuaded me not to grant leave. Adding that factor to the failure of the Crown to make submissions as to the appropriateness of wholly suspended sentences of imprisonment leads me to the conclusion that leave to appeal ought not to be granted in either case.