BARANDRECHT v Ranford
[2001] WASCA 202
•25 MAY 2001
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: BARANDRECHT -v- RANFORD [2001] WASCA 202
CORAM: McKECHNIE J
HEARD: 25 MAY 2001
DELIVERED : 25 MAY 2001
FILE NO/S: SJA 1013 of 2001
BETWEEN: DONALD GEOFFREY BARANDRECHT
Appellant
AND
BRETT RANFORD
Respondent
Catchwords:
Criminal law - Sentencing - 54 counts of stealing and fraud - Gambling addiction - Term of 2 years - Whether excessive - Whether sentence should be suspended
Legislation:
Nil
Result:
Appeal allowed
Suspended imprisonment order substituted
Representation:
Counsel:
Appellant: Mr J B Hedges
Respondent: Mr S P Pallaras QC
Solicitors:
Appellant: Bruce Havilah & Associates
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Dinsdale v The Queen [2000] HCA 54; (2000) 175 ALR 315
Latham v The Queen [2000] WASCA 338
Pain v Forbes [2000] WASCA 260
R v Barrick (1985) 81 Cr App R 78
McKECHNIE J:
Introduction
This is an appeal from a sentence of 2 years imprisonment imposed without parole.
Facts
The appellant pleaded guilty to 52 related counts of stealing as a servant and fraud. In each instance the appellant had been a teacher at Maranatha Christian College. He removed items from the school, including musical instruments, science equipment, radio cassette players, compact disc players and video recording equipment which he then pawned.
He did this in order to feed a gambling addiction which has afflicted him over many years and been the cause of previous convictions.
The items of stolen property were recovered and it would appear that arrangements were made for restitution.
The decision of the Magistrate
The appellant came before Mrs Bennett-Borlase SM on 16 January 2001. In addition to the facts, the learned Magistrate was supplied with a psychological report and several references. The psychological report disclosed that he had sought help for his gambling addiction prior to the commission of these offences.
The references from his church indicated that there were people within that community who were prepared to offer him assistance and friendship.
Her Worship imposed a total sentence of 2 years imprisonment without parole, made up of 6 months imprisonment cumulative on the first four offences and thereafter concurrent sentences on the balance of offences.
She stated her reasons for doing so as follows:
"I can find no mitigating circumstances here where I should not move to imprisonment. You have had previous opportunities in the past to address your problem. You have chosen not to do so. The report may or may not have suggested to me that you should have a community based option, but because of the fact that even 4 years ago, you weren't complying, you knew of your problem. You've known of your problem for the long time.
The community should no longer pay for your problem. You should do something about it. Otherwise you will end up with longer and longer periods of imprisonment. There are 52 charges here, both of stealing from the school as a servant which is extremely serious crime as far as the community is concerned. People are entitled to be able to trust the people they pay money to, to be employed. And also then of course the false pretences charges …
I do not believe parole is appropriate in the circumstances. These are very serious charges and they have been deliberate acts over a long period of time and you have chosen to do each and every act. Indeed, as you appear to have tried to cover your tracks by going to various suburbs in relation to taking these items and defrauding the people who have given you money on them."
The amended grounds of appeal
The amended grounds of appeal are lengthy and amount in effect to an outline of submissions rather than grounds of appeal.
I do not propose to set out the grounds of appeal because in my view this appeal must succeed on the ground in relation to a suspended sentence of imprisonment.
Having regard to the length of time during which the crimes were committed, the appellant's prior history, the circumstances of the offences and the amount involved, I do not consider it an error in the sentencing discretion for the learned Magistrate to have imposed a sentence of imprisonment. Nor do I regard the term of 2 years in total for effectively 26 different events to be manifestly excessive.
I do consider that the failure to impose a parole eligibility order was an error. There seems to me to be nothing in the material which would preclude the making of an order and much which would encourage it. However, in the circumstances that is something of a diversion.
Once a decision was made that imprisonment was appropriate, the learned Magistrate was obliged to give consideration as to whether the sentence should be suspended. I presume that she did give that consideration, but nevertheless decided against such a decision.
A sentence of imprisonment may be suspended in all the circumstances of the case. It may no longer be correct to say that the primary purpose is that of rehabilitation. However, rehabilitation is an important consideration and if the prospects of rehabilitation are to be enhanced by the making of a suspended sentence, then that course should be considered.
In the present case there are several circumstances which lead to a conclusion of suspension of sentence.
They include the fact that there was an early plea of guilty, the appellant cooperated with the investigating officers, he was under active treatment for his addiction, and he had the support of others.
I acknowledge the need for general deterrence, although deterrent sentences are somewhat more difficult to justify when the behaviour is compulsively addictive. It is better that the causes of the addiction be addressed.
A sentence of immediate imprisonment is a sentence of last resort.
In this case I am satisfied that the learned Magistrate's discretion did miscarry because I have reached the view that a sentence of suspended imprisonment was appropriate. That being the case, immediate imprisonment was not the last resort.
Conclusion
The appeal will be allowed. The order of the learned Magistrate set aside and in lieu thereof the appellant will be sentenced to a term of 6 months imprisonment on the first four complaints to be served cumulatively on each other and 6 months imprisonment on the balance to be served concurrently with the sentences imposed on the first four complaints, making a total of 2 years imprisonment.
I direct that the whole of that sentence be suspended for a period of 2 years.
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