Boon v Police No. Scciv-04-235

[2004] SASC 116

BOON  v  POLICE
[2004] SASC 116

Magistrates Appeal

1. DUGGAN J.         The appellant has appealed against the sentence imposed upon her in the Magistrates Court for a series of offences of dishonesty.  She pleaded guilty to 32 counts of false pretences and three counts of fraud other than false pretences.  The offences were committed between 19 November 2001 and 13 June 2003.  Amounts totalling approximately $50,000 were obtained as a result of the offences of false pretences and the offences of fraud other than false pretences involved an amount of $598.00.

2. The offences were committed against the appellant’s employer.  The appellant was employed in the garden section of a Home Hardware store at Smithfield.  She pretended that plants had been purchased from a person named Barnes and arranged for cheques to be paid by her employer into a bank account operated under the joint names of herself and the fictitious person, Barnes.  In the case of the three offences of fraud other than false pretences she pretended that goods had been returned by her to the store and refunds were credited to the joint bank account as a result.

3. The magistrate imposed a global sentence of imprisonment for 16 months.  He fixed a non-parole period of six months.  No restitution has been made and the magistrate declined to make a compensation order.

4. The appellant claims that the magistrate placed too much emphasis on general deterrence and gave insufficient weight to matters personal to the appellant.  In particular, it was argued that the reasons why the appellant became addicted to gambling were of relevance to the sentencing of the appellant.  It was argued that the sentence of imprisonment should have been suspended.

5. The appellant was 32 years of age at the time of sentencing.  She has a 14 year old son.  She has no prior convictions and co-operated with the investigating police officers.  She has a good employment record.

6. A report from a psychologist was tendered at the hearing before the magistrate.  The report chronicles various stresses in the appellant’s life and an unhappy childhood.  In particular, the report notes that the appellant had been the victim of a brutal gang rape at the age of 15 and that counselling in respect of that incident had not been of any real assistance to her.  The appellant told the psychologist that gambling helped to alleviate much of her negative emotion, depression and boredom.  It provided an escape from her normal life and gave her a sense of numbness or disassociation.

7. Mr Stokes, for the appellant, emphasised the possible link between the late incident and the addiction to gambling.  It is clear that the circumstances relating to this incident constitute an important stressor in her overall presentation, but it is difficult to establish a more precise connection between that traumatic event and the addiction to gambling.

8. It is apparent from the reasons of the magistrate that he gave consideration to those authorities which emphasise the importance of general and personal deterrence in cases of systematic fraud over a lengthy period of time involving large sums of money.  He referred to R v Ashdown (1994) 72 A Crim R 63. (See also R v Powell (2001) 81 SASR 9).

9. The appellant’s unfortunate background did not escape the attention of the magistrate who imposed a relatively short non-parole period.

10. At the hearing before the magistrate it was submitted that an immediate term of imprisonment would have a significant impact on the appellant’s son.  This submission has been supplemented with a psychological report tendered before me which refers to the traumatic effect which the imprisonment of his mother will have on him.  This is a relevant factor to take into account.  Nevertheless, the gravity of the appellant’s conduct outweighs this and other personal circumstances which exist in the present case.

11. The carefully considered reasons of the magistrate do not disclose any error in his approach to the sentencing process.  In my view, the sentence is appropriate and there is insufficient reason to suspend it.

12. The appeal will be dismissed.