25 October 1990 - the offence the subject of these

proceedings was committed;

27 November 1990 - the applicant was arrested and taken into

custody;

3 December 1990 - the applicant committed a further offence

of escape;

22 January 1991 - the applicant was sentenced to three

months' imprisonment for the escape committed on 3 December

1990;

12 August 1991 - the sentence the subject of this notice

to review was imposed.

4. The magistrate was not told of the circumstances or the nature of the escape committed on 3 December 1990.

5. The materials before the magistrate revealed that the applicant was aged 30 years. He had a substantial record of prior convictions including a conviction for escape on 10 May 1984 in respect of which he was sentenced to five days' imprisonment.

6. Counsel for the applicant did not abandon ground 1 but did not make separate submissions in respect of it. The sentence was not outside the range of sentences usually imposed in this state for the crime of escape and in the circumstances including in particular the accused's age and his record of prior convictions I am not persuaded that this sentence could be characterised as manifestly excessive or that the nature of the sentence itself affords convincing evidence that in some way the learned magistrate's exercise of the sentencing discretion was unsound.

7. When the prosecutor tendered the record of the applicant's prior convictions he pointed out that several convictions in that record, including the conviction for the subsequent escape, were for offences committed after the commission of the offence which is the subject of these proceedings. In imposing sentence the magistrate said that subsequent to the escape with which he was dealing:

"apparently for something that you did on the 3rd December

you were convicted on the 22nd January of escape. Previous

and subsequent convictions are relevant to be taken into

account although obviously the former carry more impact,

interestingly you were sentenced to 3 months imprisonment in

relation to the last one."

8. After referring to some other considerations the learned magistrate concluded:

"I think deterrent penalties need to be imposed,

particularly in circumstances where you've shown a

propensity to commit this kind of offence."

9. An offence committed after the offence for which a defendant is being sentenced cannot be regarded as aggravating the seriousness of the original offence and cannot justify the imposition of a heavier sentence than the original offence would have merited. However that does not mean that a subsequent offence is wholly irrelevant. As King CJ observed in The Queen v. McInerney (1986) 42 SASR 111 at pp 111 and 112:

"There is no rule of law which precludes a sentencing court

from taking into account in an appropriate way and for

appropriate purposes offences in respect of which there has

been a conviction between the time of the offence for which

sentence is being imposed and the time of sentence, whether

those offences have been committed before or after the

current offence."

10. In particular there is no rule of law or policy consideration which precludes a sentencing court from regarding an offence committed after the offence for which sentence is being imposed as simply one aspect of the behaviour and attitude of the defendant to which it is well established a sentencing court may have regard right up to the day upon which sentence is imposed. As Cox J observed in The Queen v. McInerney (supra) at p 123:

"If it is relevant - as it is - that the defendant has led

an exemplary life in the meantime, it must also be relevant

to show that he has continued in the interval to live in a

lawless way. In other words, the sentencing judge may have

regard, within the limits of practicability, to all of the

defendant's behaviour, favourable or unfavourable, prior to

sentence."

11. One of the "appropriate purposes" for which a defendant's subsequent behaviour - including the commission of a subsequent offence - may be taken into account is to assist the court in its determination of what kind of sentence will be most likely to modify the defendant's behaviour or deter him from re-offending.

12. In this case the learned magistrate was not in error in having regard to the subsequent offence and in my view it has not been shown that he erred in the way in which he had regard to it. He did not regard it as a fact which aggravated the seriousness of the offence in respect of which he was imposing sentence and it did not result in him imposing a sentence which was greater than that which was merited by the offence. The learned magistrate regarded the subsequent escape as relevant to his determination of the extent to which the sentence should reflect an element of personal deterrence and in my view he was entitled to have regard to it for that purpose.

13. I am not satisfied that the learned magistrate erred in the exercise of his discretion in either of the respects alleged in the grounds of the notice to review.