Bennett v Police - [2011] SASC 82

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BENNETT v POLICE
[2011] SASC 82
Judgment of The Honourable Justice Sulan
12 May 2011
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - HARDSHIP - TO OFFENDER
Appellant convicted of 42 counts of theft - provision of bookkeeping services - overpaid herself for work - disguised payments as payments to suppliers - sentenced to 18 months' imprisonment with a ten month non-parole period.
Appeal against sentence on grounds that Magistrate overstated amount of loss, failed to take into account restitution to CPS and erred in not suspending sentence having regard to the appellant's ill-health.
Whether sentencing Magistrate gave sufficient weight to the appellant's medical conditions - whether the prison authority is able to adequately manage and care for the defendant's medical conditions - whether s 38(2c) should be used to order home detention as a condition of suspension.
Held: Appeal allowed for limited purpose - Magistrate should have taken into account repayment and restoration.
Medical conditions able to be adequately managed in prison - illnesses can be appropriately supervised by prison authority - medical conditions not so acute or serious that they cannot be managed - not unduly harsh to require the defendant to serve sentence.
Sentence of imprisonment of 17 months with non-parole period of eight months.
Criminal Law Consolidation Act 1935 (SA) s 134; Criminal Law (Sentencing) Act 1988 (SA s 18A, s 38(2c), referred to.
Maione v Police [2007] SASC 116, distinguished.
Queen v Robertson (1984) 115 LSJS 51, discussed.
R v Smith (1987) 44 SASR 587; R v Godwin (2001) 80 SASR 195, considered.

BENNETT v POLICE
[2011] SASC 82
Magistrates Appeal: Criminal

SULAN J: This is an appeal against sentence. The defendant was convicted by a Magistrate of 42 counts of theft from CPS Australia Pty Ltd (“CPS”), contrary to section 134 of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for each offence is ten years’ imprisonment. Over a period of three years, the defendant on occasions overpaid herself for work she claimed to have performed but did not, in fact, perform. On other occasions, she paid monies into six accounts she controlled, disguising the payments as payments to suppliers. The total sum involved $95,414.85. An amount of $3282.97 has been repaid.
On 20 December 2010, the defendant was sentenced to 18 months’ imprisonment with a ten month non-parole period. The defendant appeals on the ground that the Magistrate erred in not suspending the sentence. The defendant contends that the Magistrate failed to have sufficient regard to her ill-health. Further, he failed to give sufficient weight to the fact that the victim, CPS, is likely to recover the total amount of its loss. Further, it is alleged that the Magistrate erred in stating that the total amount of the loss to CPS was over $94,000.
Background
The offending occurred between January 2004 and January 2007. At the time of the offending, the defendant operated a book-keeping business, providing services to the Adelaide office of CPS. Her duties included collecting money, paying suppliers, banking, and general administration services. This gave her access to their computer system.
Counts 1-15 (with the exception of 4) relate to the defendant’s employment as a subcontractor. She generally worked three days per week, at a rate of $25 per hour plus GST. Records indicate that her income per week for most weeks was $756.25.
The defendant would supply an invoice to CPS for work performed in a similar method to that done by suppliers. She submitted invoices to CPS on a weekly basis. After entering the relevant information into the computer, the payment would be made to her by electronic transfer. The defendant operated six accounts in which monies were paid to her.
The method used to pay suppliers was to enter the relevant details into the CPS accounting system upon receipt of invoices from the supplier. Payments would then be made into the supplier’s nominated bank account. The defendant gave evidence about the procedure used to pay suppliers. This included opening a list of the suppliers on the system and manually entering in the relevant details. The defendant claimed that the payments she received were due to an error in the system and that she was unaware that she had been overpaid. The trial Magistrate rejected the defendant’s explanations.
Records indicate that the defendant was often paid twice in relation to the same invoice. She gave evidence that the payments for wages could have occurred because of computer glitches. She had not checked her bank statements and had overlooked the fact that she had been overpaid. The Magistrate did not accept her evidence. He concluded that she was submitting invoices for work that was not performed, and that the payments had therefore been dishonestly obtained.
When the defendant was to be sentenced, the trial Magistrate was unavailable. The defendant consented to another Magistrate imposing sentence.
The sentence
The sentencing Magistrate stated that the defendant stole in excess of $94,000 from CPS. He referred to the offending having occurred over a period of three years. The Magistrate observed that the defendant had abused her position with CPS, which gave her access to various bank accounts. He noted that no explanation had been provided as to why the offending occurred. He had regard to the fact that the defendant had no prior convictions. He observed that the defendant is 43 years of age, and that she is separated but is in regular contact with her parents who are also separated. She has one son, aged 20, who lives with her and acts as her carer.
He determined to impose one sentence, pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA). He considered that the seriousness of the offences required him to impose a custodial sentence. He sentenced the defendant to 18 months’ imprisonment, with a non-parole period of ten months. He had regard to section 38(2c) of the Sentencing Act, which provides as follows:[1]
[1] Criminal Law (Sentencing) Act 1988 (SA) s 38(2c).
(2c)If the court suspends a sentence of imprisonment under this section on the ground that, because of the defendant’s ill health, disability or frailty, it would be unduly harsh for the defendant to serve any time in prison, the court may, in addition to any other conditions included in the bond, include a condition (a home detention condition) requiring the defendant to reside in a specified place and to remain at that place for a specified period of no more than 12 months, not leaving it except for one of the following purposes:
(a)remunerated employment;
(b)necessary medical or dental treatment for the defendant;
(c)averting or minimising a serious risk of death or injury (whether to the defendant or some other person);
(d)any other purpose approved or directed by the community corrections officer to whom the defendant is assigned,
(and if the court includes a home detention condition it must also include a condition requiring the defendant to be under the supervision of a community corrections officer for at least the same period).
He considered that, although the defendant has a number of medical conditions, he was not satisfied that, as a result of those conditions, it would be unduly harsh for her to serve her sentence in prison.
He declined to suspend the sentence as, in his view, there was no proper basis to suspend it.
The appeal
The ground of appeal upon which the defendant relies is that the sentencing Magistrate erred in failing to exercise his discretion to suspend the sentence of imprisonment.
In considering the appeal against sentence, the usual principles governing appeals against sentence apply. The court will only interfere if it is satisfied that the sentencing authority has acted upon a wrong principle, or if it allowed extraneous or other irrelevant words to guide or affect it, or if it did not take into account some material consideration. An appellate court may also interfere if, although it is not clear how the sentencing authority reached the result embodied in the order, the order is upon the facts unreasonable or plainly unjust.
Failure to properly take into account loss and restitution
Counsel for the defendant submits that the Magistrate was in error in stating that the total amount of the loss to CPS was over $94,000 when, in fact, it was $92,131.88. Counsel submits that the Magistrate failed to take into account that $3282.97 had been repaid by the defendant in December 2006 and, further that the defendant has an asset, namely a home, in which there is equity well in excess of the amount of the loss to CPS and that CPS is likely to recover its loss.
Counsel for the Police submits that the sentencing Magistrate did not err. He submits that the actual theft was $95,414.85. He accepts that the restitution actually made at the time of sentencing was $3282.97, but points out that the Magistrate was informed of this on the day of sentence. In his remarks, the sentencing Magistrate stated:
In total you stole in excess of $94,000 from the business.
Later, he said:
Your offending occurred over a period of three years involving a total of 42 acts of dishonesty and a loss to the company of over $94,000.
Each of these statements was correct. The Magistrate did not make specific reference to the fact that an amount in excess of $3200 had been repaid but, in my view, the Magistrate must have had this in mind as he was informed of it on the very day he sentenced. In any event, even if the Magistrate failed to take that into account, that alone would not be sufficient to conclude that the sentence should in any way be varied.
That brings me to the question of restitution. Separately from the criminal prosecution, civil proceedings have been instituted by CPS against the defendant for recovery of the relevant monies. As part of these proceedings, all assets owned by the defendant and those owned by her former partner have been frozen. This includes a jointly owned house. In light of these proceedings, the defendant, on appeal, tendered a Settlement Offer dated 8 April 2011, in which she proposes to return any money to CPS that did not belong to her. She gave evidence that she is prepared to take steps to have the property sold, in the event that her former partner does not make a settlement offer. This offer must be viewed in light of the ongoing settlement proceedings between the defendant and her former partner which have not yet been finalised. The funds to be received from the settlement cannot, therefore, be estimated with certainty. The question that arises is whether the Magistrate erred in not taking into account the fact that CPS is likely to recover all the loss, and if so, what weight can be afforded to this factor in re-sentencing.
During the trial, the defendant submitted that it was likely that all of the relevant monies would be returned to CPS. It was submitted by the prosecution at trial that the defendant should not receive any credit for this. Counsel for the defendant submits that it may be inferred that the Magistrate had no regard to this. Despite both parties taking conflicting positions on this point at trial, no reference is made to it in the sentencing remarks. In my opinion, the failure of the Magistrate to have regard to the repayment, coupled with the fact that CPS is likely to be restored to its former position, should have been taken into account by the Magistrate.
Counsel for the defendant referred to the decision of The Queen v Robertson[2] in which King CJ noted the importance of full restitution from the viewpoint of the victim who will be restored to the position in which they were before the loss arose. In that case, the impetus for the court’s intervention drew from both full restoration of the victim’s position, as well as the appellant’s work, undertaken whilst on bail, to earn money which was to be repaid to the victim. Only the first factor could be relevant to the case before us. It may be said that the defendant’s willingness to restore the money has come at a point at which it is too late for it to be considered as demonstrating remorse or contrition. Nevertheless, it is relevant to the ability of CPS to be restored to its former position, and something to which the Court should have had regard. Ultimately, however, the question for this Court is whether the sentence is manifestly excessive and whether the Magistrate’s discretion in deciding to suspend the sentence miscarried.
[2] (1984) 115 LSJS 51, 53.
Failure to give sufficient weight to the defendant’s medical condition
The sentencing Magistrate had regard to the various medical conditions from which the appellant suffers.
The Magistrate had received a number of medical reports. In the course of his reasons, he referred to the reports. He noted that the defendant suffers from various medical conditions. Those reports can be summarised as follows:
Dr Cayley, a consulting psychologist, conducted a number of psychological tests and made an assessment of the defendant’s psychological condition. She concluded that the defendant suffers from an adjustment disorder with mixed anxiety and depressed moods. She concluded that the defendant has apparently been suffering from chronic physical and mental health problems over an extended period of time, and it is possible that these difficulties have affected her ability to make sound judgments. The defendant had told Dr Cayley that she had been a victim of a home invasion in 2006, and had suffered symptoms of post-traumatic stress.
Dr Cayley was of the view that the defendant suffers from an adjustment disorder. Dr Cayley observed that the defendant suffers from a range of chronic conditions which require medication and regular medical appointments. The defendant was being prescribed anti-depressant medication, and she required appropriate professional mental health assistance.
Dr Cayley considered that the defendant would benefit from a GP mental health care plan, which would enable her to access either general or specialist psychology services under Medicare for 12 sessions in a calendar year. Dr Cayley concluded:
Given Ms Bennett’s reported medical history, if she is required to serve a custodial sentence it would be prudent to access her medical records to ensure that adequate treatment can be provided within the prison environment. Ms Bennett presented with extremely severe symptoms of depression and anxiety at the time of the current assessment. If she is required to serve her custodial sentence her mental health is likely to deteriorate and she is likely to require a significant level of supervision and support to assist her to adapt to the prison environment. She is likely to require ongoing monitoring and regular review by mental health staff over whatever period of time she is required to serve.
A report was obtained from Dr M Harding, a neurosurgeon, who examined her and noted that she has suffered two mild strokes in 2006, and also suffered a pulmonary embolism secondary to a deep vein thrombosis. Dr Harding concluded:
I am uncertain the effect that imprisonment would have on Mrs Bennett’s idiopathic intracranial hypertension. I would think that some of her other medical conditions would be more concerning during a time of incarceration. Mrs Bennett does not require any neurosurgical intervention currently for her idiopathic intracranial hypertension but may require a new shunt replacement or revision of a shunt if it should malfunction.
Dr B M Costelo-Sayo of the Hackham Medical Centre examined the defendant and reported that she suffers from the following conditions:
·Diabetes mellitus type 2
·Severe obstructive sleep apnoea
·Bronchial asthma
·Irritable bowel syndrome
·Benign intracranial hypertension
·Patent foramen ovale
·Recurrent pulmonary embolism
·Major depression
·Fatty liver disease
·Iron deficiency anaemia
·Gastro-oesophageal reflux disease
Dr Costelo-Sayo concluded that the defendant has multiple complex medical conditions and she was being managed regularly by specialists. In Dr Costelo-Sayo’s opinion, it would be difficult to monitor the defendant’s condition, leading to possible deterioration of her problems should she be imprisoned. A report from the Sleep Disorders Unit was provided to the Magistrate, which reported that she suffers from sleep disorder.
The Magistrate concluded:
Taking account of the seriousness of these offences, your personal circumstances, particularly lack of prior convictions and your health issues, I sentence you to 18 months’ imprisonment. Considering those same issues again I take the view that there is no proper basis to suspend the sentence of imprisonment, however I will fix a slightly shorter non-parole period of ten months.
The defendant was taken into custody on 20 December 2010 and was released on bail, pending appeal, on 21 January 2011.
On appeal, the defendant gave further evidence about her time spent in custody and its effect on her medical conditions. I also allowed fresh evidence to be heard from independent health professionals involved in the correctional services department in relation to the manageability and care available to prisoners requiring specific medical assistance.
Evidence of Mrs Bennett
Mrs Bennett gave evidence that she takes warfarin to protect from blood clots. Warfarin treatment involves the administering of regular blood tests, known as an INR reading, to monitor dosage. She says that her INR readings were fairly stable, though they began to fluctuate whilst in custody.
She was asked about her experience in relation to the supply of medication in prison on an as-needs basis. Mrs Bennett receives medication both in the morning and evening. However, she says that if a prisoner is to seek medication in addition to that stipulated in their medication schedule, say for example panadol, this must be requested before 4pm and will only be received at 8pm. From this point in time until the scheduled medication is dispensed, prisoners are not able to receive any further medication outside their prescribed treatment program.
Mrs Bennett complains that she was unable to take fruit back to her cell after dinner despite the prison officers knowing that she suffers from type 2 diabetes. She was, however, able to keep food in her cell that she had purchased herself from her weekly buy. Importantly, this was only an issue whilst the defendant was stationed in the D and C wings.
The defendant complains that due to inadequate footwear supplied by the prison authority she developed blisters which progressed into open wounds. She says that whilst this was dressed, it became a hazard due to the sharing of showers with other prisoners who had hepatitis C. In cross-examination she said that she raised the issue with the health staff at the prison, and the doctor offered to give her dressings so her wounds could be dressed on a daily basis.
Evidence of Dr Frost
Dr Frost is the Clinical Director of the South Australian Prison Health Service (‘SAPHS’). Dr Frost has provided a report in relation to the custody of the defendant and the capacity of the SAPHS to care for her health requirements. On appeal, he gave further evidence in relation to these issues.

Dr Frost notes that the defendant has benign intracranial hypertension treated by a lumbo-peritoneal shunt. He says that although problems will not generally arise whilst the shunt is working properly, a potential risk of infection around the shunt exists. If the shunt is to block communication between the cerebrospinal fluid and the peritoneal space in the abdomen, this may increase pressure back in the spinal fluid, which can increase pressure around the brain causing headaches. Whilst the SAPHS cannot directly measure pressure within the shunts, nor test its operation, Dr Frost says that they are able to liaise with the Royal Adelaide Hospital and the relevant specialist to ensure that if a prisoner requires attention, or attendance at appointments, this will be arranged.
Dr Frost discussed the defendant’s warfarin requirements. He notes that there are a number of prisoners requiring warfarin therapy who, like the defendant, have regular tests. This involves having one’s INR monitored as frequently as it would be in the community. This is likely to be every one to two days until the dose is stable, at which point the frequency is decreased to weekly, two weekly and three weekly. This is said to be standard practice.
He says that CPAP machines are available for use within the prison system to assist with the defendant’s sleep apnoea. These are provided by Correctional Services and are used by some other prisoners. He says that other prescribed medication required by the defendant, including crestor for lipid control and nexium for gastroesophegal reflux may be obtained as required without any difficulties within the system.
Dr Frost was asked about the availability of medication for the treatment of headache-type symptoms. He says that the treatment depends on the cause of the headache. He notes that for a simple headache analgesia such as paracetamol or ibuprofen would be used. However, he considers it preferable to use preventative mediations where headaches are due to other causes, like migraines. He says that it is not uncommon for those in the correctional system to complain of headaches as a result of stress and anxiety. The prescribed analgesics would be available to the defendant if her neurologist thinks that her headaches are related to intracranial hypertension. For potential health and security reasons, narcotic analgesia are not used in prison, but it was suggested that narcotic painkillers would be available if needed. Dr Frost considers the appropriate procedure is for the defendant’s requirements to be assessed by SAPHS’s doctors, subject then to a recommendation by the neurologist.
The defendant suffers from type 2 diabetes. Dr Frost considers there to be adequate treatment for this type of diabetes which requires only oral medication. He says that there are suitable diabetes management practices within the system that are akin to standard practice in general hospitals. Management of this illness involves medications, check-ups, blood tests, cholesterol tests, the monitoring of blood pressure, eye and kidney checks, appropriate diets and exercise. He notes that corrections have an appropriate diet for diabetic prisoners which has had input from a dietician.
Dr Frost was asked about the treatment available for the defendant’s anxiety and stress. He says that anxiety and stress is extremely common for those who enter the prison system. He considers that there is no wholly effective pharmacological treatment of it, and the appropriate treatment stems from supportive treatments and counselling. If it appears that the depression may be progressing into a serious problem then anti-depressant medication may be started. Between 21 December and 15 January the defendant was treated with an anti-depressant medication called citalopram.
In cross-examination, Dr Frost was asked further about Mrs Bennett’s anxiety and stress, and the possibility of her situation being more complex given her past psychiatric problems. It was put to him that whilst it had been suggested that one of the appropriate treatments would be supportive treatment, the Prison Health Service is not funded to provide this. Dr Frost acknowledged that it was possible that she may have only had one visit to a psychologist in the relevant month. The situation is not entirely satisfactory, but Ms Bennett’s psychological needs can be monitored and, if she deteriorates markedly, appropriate procedures are available to deal with the situation.
Evidence of Sandra Russell
Ms Sandra Russell is the general manager of the Adelaide Women’s Prison. She is responsible for the general management of the Adelaide Women’s Prison and the Men’s Adelaide Pre-Release Centre. She, like Dr Frost, gave evidence about the management of the defendant whilst in custody. She noted that Mrs Bennett was able to use her CPAP machine for the duration of her time in custody.
She discussed the various units in which the defendant resided whilst in custody. Mrs Bennett was initially placed into the Yatala Labour Prison infirmary for her first night, after which she was transferred to the D wing in the Adelaide Women’s Prison, which is used for those prisoners who are at risk of self-harm. After 24 hours she was transferred to the C wing which is dormitory-style accommodation, where Mrs Bennett resided in a single room after her assessed risk was downgraded. After spending just over two weeks in C wing, Mrs Bennett was then transferred to the independent living cottages where she resided for the rest of her stay.
Ms Russell addressed the ability of prisoners to request to see medical practitioners as well as the availability of sessions with psychologists. She says that the defendant was assessed immediately upon admission. After seeing a medical officer and upon their advice she was transferred to the Adelaide Women’s Prison where she was seen daily for the first seven days, after which it would be at their request. Ms Russell says that whether or not a psychologist attends to see a prisoner depends on the prisoner’s assessed needs. Psychologists are primarily engaged for crisis intervention and it does not therefore follow that every prisoner will be seen automatically. Furthermore, prisoners cannot self-refer. SAPHS can, however, refer to the psychologist where it is deemed necessary.
Ms Russell also considered the management of prisoners suffering from diabetes. She says that details of the individual’s needs are stored in an electronic case file, and SAPHS advises of particular health needs as they relate to dietary requirements and general management of diabetes. She says that in Mrs Bennett’s case, she is able to access fruit after hours, though the storing of food by prisoners is not generally encouraged.
Ms Russell was asked about the ability to manage the footwear issues concerning Mrs Bennett. Ms Russell says that Mrs Bennett, like all other prisoners, was issued with a pair of RhinoTextiles. She says that there is no record of evidence that the defendant complained of this footwear or of having sore feet. She asserts that if such complaints were made this issue could have been addressed. If necessary, Mrs Bennett would be permitted to wear her own footwear whilst in custody.
Ms Russell was questioned about the prison policy in relation to smoking. Mrs Bennett complains that her asthma worsened during her time in custody due to other prisoners as well as guards smoking. Ms Russell acknowledged the difficulty in monitoring smoking in a system which allows for prisoners to be able to smoke in their own rooms, and has infrastructure which allows for smoke to come through doors and hallways. Although there is not scope for asthma sufferers to be placed in a smoke-free environment, Ms Russell considered the cottages to have reasonably good ventilation and access for the prisoners to spend a significant proportion of their day outside. She agreed it was quite common for prisoners to smoke in the common areas, such as the lounge rooms, kitchens and bathrooms in addition to their own bedrooms. The mobility of prisoners to access non-smoking areas is a matter of concern. She also noted that although there is scope for a non-smoking cottage this is unlikely to be arranged for another 12 months. There is little doubt that passive smoking is a hazard to health. The fact that prisoners, some of whom have conditions such as asthma, cannot avoid being exposed to cigarette smoke is a matter that requires urgent attention.
The health of a defendant is a relevant matter to which the court will have regard when determining a sentence. In R v Smith,[3] King CJ, with whom Cox and O’Loughlin JJ agreed, considered the relevance of a person’s medical condition when determining an appropriate sentence. King CJ said:
… The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health.
The conclusion which I would draw from the evidence in the present case is that there is a substantial risk that the stress associated with a further period of imprisonment will cause some deterioration in the condition which afflicts him. The evidence shows that there are three recognised stage of AIDS sufferers. The stage C sufferer has AIDS antibodies but no symptoms. He may or may not progress to stage B in which there are symptoms but no danger to life. Stage B sufferers may or may not progress to stage A in which the disease is terminal. While in prison the appellant went from C to B. After his release he reverted to C. It cannot be assumed, of course, that further imprisonment will have the same effect. The initial stress may subside with consequent amelioration of the adverse effects of prison. But there is an undeniable risk of deterioration.[4]
[3] (1987) 44 SASR 587.
[4] Ibid 589.
King CJ concluded that the medical condition of the defendant did not justify a reduction of the head sentence nor did it justify the Court in suspending the sentence, but he considered that it was an appropriate case to significantly reduce the non-parole period.
Although the defendant suffers from numerous physical and mental medical conditions, I am satisfied that those conditions could be adequately managed whilst she is in prison. I find that treatment for her diabetes could be appropriately managed via her oral medication and dietary controls administered by the prison. I am satisfied that Mrs Bennett would be able to store food in the cottages, as suggested by Ms Russell. I accept the evidence of Ms Russell that upon request and appropriate recommendations from a medical practitioner the SAPHS could facilitate the acquiring of footwear more suitable to the needs of the defendant. I consider that the defendant’s sleep apnoea can be adequately managed by the continued use of her CPAP machine. I find that her illnesses can continue to be adequately supervised by the SAPHS, and further requests can be made, if necessary, to see nursing or medical staff both within and outside of the prison.
I find it an unfortunate position that the system is not able to more appropriately facilitate the separation of those who do not wish to reside in the presence of prisoners who smoke. Further, I do not find it entirely satisfactory that one cannot receive medication during the night, unless the severity of the pain is such that it warrants immediate medical attention from outside the prison. I accept the evidence of Dr Frost. There is no doubt that Mrs Bennett will suffer some hardship whilst in prison, but I am not satisfied her medical conditions are so acute or so serious that they cannot be managed in custody. I conclude that suspension of the sentence on the basis that the defendant could not be dealt with appropriately in custody must be rejected.
Section 38(2c)
A further matter arises, and that is whether, pursuant to section 38(2c), the Court should suspend the sentence and order that, as a condition of the suspension, the defendant serve some specified period on home detention.
In R v Godwin,[5] the appellant had pleaded guilty to three counts of causing grievous bodily harm by dangerous driving. She was sentenced to two years and ten months’ imprisonment, with a non-parole period of 20 months.
[5] (2001) 80 SASR 195.
The appellant had suffered serious injuries in the accident. She had sustained undisplaced back and neck fractures, rib and shoulder fractures and fractures to her feet. She was an incomplete quadriplegic suffering chronic pain disorders, major depression and other psychological problems. The Court was informed that, whilst in prison, the appellant was unable to access her normal physiotherapy treatment, lacked special aids such as handrails within the prison, she was required to be housed in the high-security wing of the prison because of her health needs, and she had difficulty using a wheelchair within the prison. She has had difficulty showering, and it was clear that the prison system suffered from limitations in its capacity to meet the appellant’s health needs whilst she was incarcerated. It was the appellant’s case that, due to her medical condition, the Court should suspend the sentence. On appeal, Prior J, with whom Nyland and Lander JJ agreed, considered the application of section 38(2c).
Prior J referred to the statement of King CJ in Smith, to which I have earlier referred. He observed:
This statement of principle by King CJ is obviously acknowledged and reflected in the language of s 38(2c) of the Criminal Law (Sentencing) Act. If, in a particular case, it seems that it would be unduly harsh for a defendant to serve any time in prison because of that person’s ill health, disability or frailty that is, by the express terms of s 38(2c), a ground for suspending a sentence of imprisonment. That provision was incorporated into the Criminal Law (Sentencing) Act by a provision that came into effect some 12 years after the decision in Smith. The home detention particularised in subs (2c) calls for a positive finding that it would be unduly harsh for the appellant to serve any time in prison. It also limits the period of detention to no more than 12 months.[6]
[6] Ibid 200 [27].
Prior J concluded that he was not satisfied that it would be unduly harsh for the appellant to serve any time in prison because of her ill health, disability or frailty.
In Maione v Police,[7] the appellant had pleaded guilty to 49 counts of forgery and 49 counts of uttering. At the time she was the arrested, the appellant had developed a major depressive illness. The appellant was also found unfit to stand trial in relation to 73 counts of fraudulent conversion. In considering the appellant’s mental health, Layton J considered a number of reports which supported the diagnosis that Mrs Maione suffered chronic and more acute depressive symptoms over a period of time to the point where she was considered to be mentally incompetent in respect of 73 of the offences.
[7] Unreported [2007] SASC 116.
The psychiatric evidence suggested that Mrs Maione was suffering from a depressive disorder during the time of her alleged offending, and that her mental illness was a factor to be taken into account in assessing whether the sentence should be suspended. Layton J determined that the sentence should be suspended.
That case is distinguishable from the present case. In this case, there was no evidence before the Magistrate to suggest that the defendant was suffering from a mental illness at the time she committed the offences. It was beyond doubt in Maione that the appellant suffered from a severe mental illness for her to be declared mentally incompetent in respect of a number of alleged offences. For those offences when she was not mentally incompetent, it is beyond doubt that she was suffering from an acute mental illness.
In my view, it has not been demonstrated that it would be unduly harsh to require the defendant to serve the sentence. Although the Magistrate made errors about the amount of the defalcation, I do not consider that those errors were significant in the overall scheme of the offending.
The head sentence of 18 months’ imprisonment is well within the appropriate range of penalties for this offending. The non-parole period imposed by the Magistrate is not manifestly excessive. I consider there is no good reason to suspend the sentence. In my view, no error has been demonstrated in the exercise of the Magistrate’s discretion.
The appellant has spent one month in custody prior to being released on bail. It is, therefore, necessary to reduce the head sentence and non-parole period to take account of the time she has spent in custody. I would give a further small reduction to take account of the likelihood that CPS will, in due course, recover its loss.
The appeal is allowed for the limited purpose I have indicated. The sentence of the Court is that the appellant be imprisoned for 17 months. I impose a non-parole period of eight months’ imprisonment.