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…

Details

AGLC: Bennett v Police [2011] SASC 82
Case: [2011] SASC 82
Decision Date: 12 May 2011

CaseChat Overview and Summary

In Bennett v Police, the defendant appeals against her 18-month imprisonment sentence, with a non-parole period of ten months, imposed by a Magistrate following her conviction for dishonestly obtaining over $94,000 from her employer. The defendant argues that the Magistrate erred in not suspending the sentence, failing to adequately consider her ill-health, and underestimating the likelihood that the victim will recover its losses. The appeal also questions the accuracy of the loss amount calculated by the Magistrate. The defendant operated a bookkeeping business for the Adelaide office of CPS, where she had access to their computer system. She was convicted for fraudulently inflating her invoices and submitting them to CPS, resulting in overpayment. The trial Magistrate rejected the defendant's claims that the overpayments were due to computer errors, concluding that she knowingly submitted false invoices.

The court needed to decide whether the sentencing Magistrate erred in not suspending the sentence, given the defendant's health issues and the likelihood of CPS recovering its losses. The court also needed to assess whether the loss amount was accurately calculated. The defendant's health issues, including benign intracranial hypertension, sleep apnoea, and warfarin requirements, were considered. Dr Frost, the Clinical Director of South Australian Prison Health Service, testified that the prison system can manage these health issues, with available treatments and medications. The court also examined whether the Magistrate adequately considered the defendant's health and the potential for CPS to recover its losses when deciding on the sentence.

The court found that the Magistrate did not sufficiently consider the defendant's health issues and the potential for CPS to recover its losses when deciding on the sentence. The court noted that while the defendant's health issues required management, the prison system was equipped to handle these needs. However, the court emphasised that the health issues were not so severe as to warrant a suspended sentence. The court also found no error in the Magistrate's calculation of the loss amount, as the evidence supported the figure of over $94,000. Consequently, the appeal was dismissed.

The court dismissed the defendant's appeal and upheld the sentence of 18 months’ imprisonment with a ten month non-parole period. The court found no error in the sentencing Magistrate's consideration of the defendant's health issues or the calculation of the loss amount. The appeal did not succeed in demonstrating that the sentence was unjust or that the Magistrate failed to consider relevant factors.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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