Bright v Police - [2008] SASC 220

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BRIGHT v POLICE
[2008] SASC 220
Judgment of The Honourable Justice Gray
11 August 2008
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - MISCELLANEOUS MATTERS - REPARATION AND RESTITUTION BY OFFENDER
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - PURPOSE OF SENTENCE - REHABILITATION
Defendant pleaded guilty to four counts of taking property without the consent of the owner, the Commonwealth Bank - defendant was head teller and supervisor of other tellers at the Bank - defendant committed the offences to finance a gambling addiction - defendant made full restitution to the Bank - defendant has made genuine efforts to rehabilitate and has made good progress in that regard - Magistrate sentenced defendant to 12 months’ imprisonment, reduced to nine months by reason of the defendant’s early guilty plea - Magistrate ordered that the defendant serve a period of four months of the nine months’ imprisonment, and that the balance of five months be suspended upon the defendant entering into a bond to be of good behaviour - whether the imposition of an immediate custodial term was manifestly excessive - whether the Magistrate gave full effect to the making of restitution - whether Magistrate erred in characterising the defendant’s conduct as involving two breaches of trust: one, involving the bank, and the other to junior employees - whether the Magistrate took sufficient account of the defendant’s prospects for rehabilitation.
Held (allowing the appeal): full effect was not given to the restitution made by the defendant - the Magistrate erred in sentencing the defendant on the basis of a double breach of trust - the Magistrate did not take sufficient account of the defendant’s prospects for rehabilitation - sentence imposed by the Magistrates Court set aside - defendant re-sentenced to a term of imprisonment of nine months - that sentence is suspended on the defendant’s entry into a supervised three-year good behaviour bond.
Criminal Law Consolidation Act 1935 (SA) s 134(1); Criminal Law (Sentencing) Act 1988 (SA) s 10, s 18A and s 38, referred to.
The Queen v Robertson (1984) 115 LSJS 51; Matulich v Police [2007] SASC 440; Kovacevic v Mills (2000) 76 SASR 404; SA Police v John (1995) 181 LSJS 20; R v O’Keefe (1992) 60 A Crim R 201; R v Allen [2005] QCA 73; R v Barrick 81 Cr App R 78 at 81; Birch v The Queen (1993) 69 A Crim R 181; R v Carreras (1992) 60 A Crim R 402; R v Mooney (unreported, VCCA, 21 June 1978); R v Scognamiglio (1991) 56 A Crim R 81; R v Arnold (1991) 56 A Crim R 63 at 72; R v Harland-White (unreported, VCCA, 271 of 1993, 10 May 1994); R v Kevich (unreported, VCCA, 25 November 1977); R v Halewyn (1984) 12 A Crim R 202; R v P (2003) 87 SASR 287, considered.

BRIGHT v POLICE
[2008] SASC 220
Magistrates Appeal
GRAY J

This is an appeal against sentence.
Background
The defendant and appellant, Karin Leah Bright, pleaded guilty to four counts of taking property without the consent of the owner, the Commonwealth Bank, contrary to section 134(1) of the Criminal Law Consolidation Act 1935 (SA).[1] The defendant was the head teller and supervisor of other tellers of the bank at Mount Gambier.
[1] Section 134(1) of the Criminal Law Consolidation Act 1935 (SA) provides:
A person is guilty of theft if the person deals with property—
(a)    dishonestly; and
(b)    without the owner's consent; and
(c)    intending—
(i)    to deprive the owner permanently of the property; or
(ii)   to make a serious encroachment on the owner's proprietary rights.
Maximum penalty: Imprisonment for 10 years.
Between January and September 2007, the defendant misappropriated the sum of $21,500 from the “floating balance of cash” secured at the bank. The defendant was the only person with a key to the secured area where the floating balance was stored. Bank procedure required that the defendant and another teller should count the money each day prior to placing it into the cash clearance bag, with the bag being signed by the defendant and the other teller at that time and then sealed. The defendant induced another teller, on at least three separate occasions, to pre-sign an empty cash clearance bag. The teller did so because she trusted the defendant and had known her for about 20 years. The defendant cut pieces of blank paper to the size of bank notes, and replaced removed bank notes within bundles of bank notes with blank paper, in order to deceive casual observers into thinking that the bundles were all bank notes. The cash was taken in tranches of $2,500 and $5,000, up to the total of $21,500.
On 4 October 2007, the bank manager discovered a discrepancy, and conducted a thorough search of the bundles of bank notes. Initially, the defendant pretended that there was cash present in the bags, but once the misappropriation became obvious the defendant admitted that she was responsible. She told the bank manager that she had intended to replace the cash when a property sale was finalised.
On 17 October 2007, the defendant made full restitution of the $21,500 to bank.
The Magistrate sentenced the defendant on 23 April 2008 and imposed the one penalty for all offences, pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA),[2] of nine months’ imprisonment. In arriving at this sentence, the Magistrate made a reduction of three months by reason of the defendant’s early guilty plea. The Magistrate ordered, pursuant to section 38(2a) of the Criminal Law (Sentencing) Act,[3] that the defendant serve a period of four months of the nine months’ imprisonment, and that the balance of five months be suspended upon the defendant entering into a bond to be of good behaviour for a period of five months.
[2] “If a person is found guilty by a court of a number of offences, the court may sentence the person to the one penalty for all or some of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates.”
[3] Section 38(2a) of the Criminal Law (Sentencing) Act 1988 (SA) provides:
“(2a)However, if the period of imprisonment to which a defendant is liable under one or more sentences is more than three months but less than one year, the sentencing court may, by order—
(a)direct that the defendant serve a specified period (being not less than one month) of the imprisonment in prison; and
(b) suspend the remainder on condition that the defendant enter into a bond of a kind described in subsection (1) that will have effect on the defendant's release from prison.”
The Appeal
On appeal it was submitted that an immediate custodial term was manifestly excessive. It was contended that an error of sentencing principle had occurred. It was said that this Court should re-sentence the defendant.
Restitution
As earlier observed, the defendant made prompt and full restitution to the bank in the amount of $21,500. The Magistrate observed:
I do note that the compensation has been made and it has been made in full and it has been made with the approval of your husband from a family asset. The act of restitution has to be recognised as further evidence of contrition and remorse and I so recognise it in this way.
A convenient starting point for the discussion of the relevant principles with respect to restitution is the decision in Robertson.[4] This decision pre-dated the enactment of the Criminal Law (Sentencing) Act 1988 (SA). The defendant in that case, was sentenced to 18 months’ imprisonment with respect to offences of dishonesty. On appeal, further evidence was placed before the Court concerning restitution. It is convenient to continue the factual summary by reference to the reasons of King CJ, with whom Zelling and White JJ agreed:[5]
There is, however, one factor which was not before the learned sentencing judge, at all events in the same way as it is before us. There is now evidence that the [defendant] will become entitled to a substantial sum of money, $3,490, by way of tax refund in the near future and he is prepared to apply that money to make restitution. He has accumulated some money as a result of his endeavours since he has been on bail and is able to borrow some money. As a result of all that, he is able to say that he can make full restitution by the end of August. This is a very important factor from more than one point of view. It means that the persons who have suffered loss as a result of the crimes will be restored to the position in which they were before they lost their money and will have suffered only to the extent of any inconvenience and emotional upset which was caused to them and any interest which they might lose as a result of not having the use of the money.
The new factor is important in another way because it shows that the [defendant] has made use of the time which he has had since he has been on bail to rehabilitate himself by working, and working hard, and making good use of the money which he has earned for the benefit of those whose money he had taken. This augurs well for his rehabilitation and gives this Court some ground for extending a leniency to him which was not available to the learned sentencing judge. I think that the combination of these two aspects of the new factor is sufficient to enable this Court to intervene, bearing in mind that the [defendant] was in gaol from the date upon which he was remanded for sentence, 13 March 1984, to the date on which he was released on bail, 9 May 1984, a period of two months.
[emphasis added]
[4] The Queen v Robertson (1984) 115 LSJS 51.
[5] The Queen v Robertson (1984) 115 LSJS 51 at 53.
In Matulich,[6] I summarised the common law and statutory recognition of the relevance of the making of restitution on sentence:
-Statutory recognition has been given to the relevance of restitution in the sentencing process through sections 10(1)(e) and 10(1)(f) of the Sentencing Act.[7]
-These statutory provisions provide a recognition of the common law principles identified in Robertson.[8]
-A sentencing court, as observed in Kovacevic,[9] must treat restitution as mitigatory. This is because the making of restitution impacts directly on the extent of any loss suffered, and must be brought to account by reason of section 10(1)(e).
-The circumstances under which restitution is made may demonstrate contrition and remorse. These are matters of mitigation. As explained in Robertson, this is because contrition and remorse suggest that there are good prospects for rehabilitation.
-As observed in John,[10] O’Keefe[11] and Allen,[12] restitution may be of particular significance if accompanied by circumstances of personal sacrifice. Such circumstances may lead to the suspension of a term of imprisonment, or alternatively may operate to substantially reduce the time to be spent in custody.
[Citations added]
[6]    Matulich v Police [2007] SASC 440 at 30.
[7] Sections 10(1)(e) and 10(1)(f) of the Criminal Law (Sentencing) Act 1988 (SA) provide:
“(1)A court, in determining sentence for an offence, should have regard to such of the following matters as are relevant and known to the court:
…
(e)any injury, loss or damage resulting from the offence;
…
(f)the degree to which the defendant has shown contrition for the offence—
(i)by taking action to make reparation for any injury, loss or damage resulting from the offence; or
(ii)in any other manner”
[8]    The Queen v Robertson (1984) 115 LSJS 51.
[9]    Kovacevic v Mills (2000) 76 SASR 404.
[10] SA Police v John (1995) 181 LSJS 20.
[11] R v O’Keefe (1992) 60 A Crim R 201.
[12] R v Allen [2005] QCA 73.
Counsel for the defendant submitted that although the Magistrate noted the fact of restitution, and that it had been made from family assets, he only appeared to treat restitution as further evidence of contrition and remorse. Although it is not entirely clear from the remarks of the Magistrate, I have come to the conclusion that full effect was not given to the restitution made by the defendant. The restitution made was full restitution, and was made promptly. The bank was fully restored at an early date. In accordance with the above authorities, the restoration of the bank’s losses was a mitigatory factor. In addition, in the circumstances of the present case, the making of restitution demonstrated significant contrition and remorse which were relevant to an assessment of the defendant’s prospects for rehabilitation. In my view the Magistrate failed to give full weight to the making of restitution.
Breach of Trust
Counsel submitted that the Magistrate characterised the defendant’s conduct as involving two breaches of trust – one, involving the bank, and the other to junior employees. The Magistrate described the breaches of trust as serious and made reference to authorities that referred to the responsibility of courts to impose appropriate sentences on those who abuse the trust that is placed in them by employers.
When addressing the breach of trust to junior employees, the Magistrate observed:
It seems that in your position of head teller you supervised and trained other junior staff in their responsibilities in terms of the manner of which they should conduct themselves. There were rules that they had to meet in terms of their handling of money too.
To aid yourself taking of the money you relied and took advantage of their good faith in you. You relied upon what they believed to be your honesty and you induced them it seems to sign blank documents in relation to the counting for cash at the end of the day. You induced them to do this by reason of preying upon the trust that you have engendered as their supervisor. No doubt also you took advantage of their personal affection for you in the work place.
In taking advantage of their trust you aided your deception. You involved them unwittingly in your theft of $21,000. I have not been told of any consequences for them for their breaching of their obligations, albeit at your request. No doubt there was some but I don’t take that significantly into account. It seems to me this is, as I say, this relationship of trust with the other employees, is one element of the breach of trust. That is taking advantage of the trust placed in you by those you supervised and trained.
…
You were the head teller. You knowingly took advantage to those junior to yourself.
The defendant submitted that the Magistrate erred in finding that there were “double elements of breach of trust”, and that the Magistrate should have sentenced on the basis of the one breach of trust.
The fact that a crime has involved a breach of trust is generally treated as an aggravating factor. This includes theft committed in the course of employment by a person employed in a position of trust. The assessment of the quality and degree of trust reposed in an employee is important. In Barrick,[13] the English Court of Appeal summarised a number of the factors to be considered when assessing the effect of a breach as follows:
The following are some of the matters to which the Court will no doubt wish to pay regard in determining what the proper level of sentence should be: (i) the quality and degree of trust reposed in the offender including his rank; (ii) the period over which the fraud or the thefts have been perpetrated; (iii) the use to which the money or property dishonestly taken was put; (iv) the effect upon the victim; (v) the impact of the offences on the public and public confidence; (vi) the effect on fellow-employees or partners; (vii) the effect on the offender himself; (viii) his own history; (ix) those matters of mitigation special to himself such as illness; being placed under great strain by excessive responsibility or the like; where, as sometimes happens, there has been a long delay, say over two years, between his being confronted with his dishonesty by his professional body or the police and the start of his trial; finally, any help given by him to the police. In the present case, the defendant’s offending was aggravated by her breach of trust. Her position as head teller entrusted her with responsibility with respect to the handling of money on behalf of the bank. However, it is to be observed that her position was not managerial.
[13] R v Barrick 81 Cr App R 78 at 81. Cited with approval in Birch v The Queen (1993) 69 A Crim R 181 at 185 and R vCarreras (1992) 60 A Crim R 402 at 407.
The Magistrate considered the defendant’s breach of trust to be a significant aggravating factor, as indeed it was. However, it was contended that the Magistrate placed undue weight on the defendant’s breach when he remarked:
As I have said I think there are double elements of breach of trust here, both to the fellow employees that you engaged in this process for your own selfish needs and for the breach of trust to the employer generally.
In my view the Magistrate placed too much weight when sentencing the defendant on the basis of a double breach of trust. Breaches of trust may affect a wide group of people, including an offender’s employer, fellow employees, and members of the wider community. These wider circumstances are relevant when determining the seriousness of the breach of trust. It was presumably to this consideration that the Magistrate referred when speaking of the “double elements of breach of trust”. However, there was only one relevant breach of trust. It was a breach of the trust to the defendant’s employer. There was no relevant double element. The breach of trust to the defendant’s employer in circumstances where the defendant took advantage of junior employees.
In the present case the trust that was being abused was the breach of trust to the employer. This was the aggravating factor. As pointed out in Barrick,[14] the effect on other employees is one amongst many relevant matters to be considered when assessing the overall criminal culpability of an offender and an appropriate sentence.
[14] R v Barrick 81 Cr App R 78.
Personal Deterrence
The defendant is now aged 55 years. She is married with a supportive husband. She is a mother and grandmother. She has no criminal antecedents and is otherwise of good character. At the time of her offending her husband had been away from home due to work commitments for lengthy periods. As a consequence of loneliness, the defendant resorted to “playing the pokies”. This developed to an addiction that in turn led to her offending.
The defendant committed the offences to finance a gambling addiction. She spent at least $18,000 of the stolen money on poker machines. She would usually use poker machines three times a week.
A counsellor has treated the defendant for major depression, suicide ideations, and the issues leading to her pathological gambling problems. The counsellor’s report of 20 April 2008 confirms that the defendant has continued in treatment on a fortnightly basis, and has been highly motivated and genuine in her attempts to overcome her addiction.
A report of 6 February 2008 was tendered from a cognitive behavioural therapist with Statewide Gambling Therapy Service. The defendant is a client of the Service, having registered on 2 December 2007. The therapist reported that the defendant’s gambling problem is suitable for treatment using cognitive behavioural therapy, and a course of treatment usually takes around three months.

The defendant tendered an “Independent Gambling Authority Request for Voluntary Barring – Gaming Venues” form, filed by the defendant on 11 December 2007 and accepted by the Independent Gambling Authority on 17 December 2007. The defendant, pursuant to her request, has been banned from all gaming venues in and around Mount Gambier. Until such time as the order is revoked, it is an offence for the defendant to enter a gaming area in one of the listed venues.
The reports and the voluntary barring order demonstrate that the defendant has taken significant steps in addressing her gambling addiction, and is making good progress toward that end.
Gambling addiction is recognised as a psychological illness – Pathological Gambling Disorder (DSM-IV 312.31). It has been said that gambling addiction has a similar biological effect to that seen in cocaine addiction.[15] Research has also suggested that pathological gamblers exhibit impairments in the decision-making and executive function processes associated with the pre-frontal cortex of the brain.[16]
[15] Robert Mittiga, “The Problem of Gambling Addiction”, GATS Counselling & Treatment Services.
[16] Robert Mittiga, “Pathological Gambling – A Brain Disease”, GATS Counselling & Treatment Services.
This is relevant to sentencing in several ways. As was observed by Young CJ in Mooney,[17] general deterrence, as a principle of punishment, is given less weight for offenders who suffer from mental disorders on the grounds that such an offender is “not an appropriate medium for making an example to others”. These observations were endorsed in Scognamiglio,[18] where Grove J, with whom Clarke JA and Newman J agreed, observed:
That mental handicap, short of providing a defence on the ground of mental illness, is a basis for reduction of sentence has been long recognised: see, eg Smith (1958) 75 WN (NSW) 198. Even if the offender is suffering from a condition which predicates further violence, the potential loss of reduced sentence on that account does not justify increase either for personal deterrence of the offender or general deterrence: Kocan [1966] 2 NSWR 565.
However, it was noted by Ipp J in Arnold[19] that few people who commit some offences will not suffer from a psychological condition and so the psychological condition will not detract from the need to take general deterrence into account. The ultimate question is whether, as a result of the personality disorder, it is inappropriate for a defendant to be considered a suitable vehicle for general deterrence.[20]
[17] R v Mooney (Unreported, Court of Criminal Appeal of Victoria, Young CJ, Lush and Jenkinson JJ, 21 June 1978), cited with approval in R v Tomlinson [2007] SASC 222.
[18] R v Scognamiglio (1991) 56 A Crim R 81 at 85.
[19] R v Arnold (1991) 56 A Crim R 63 at 72.
[20] R v Harland-White (Unreported, Court of Criminal Appeal of Victoria, Crockett, Southwell, Vincent JJ, 10 May 1994).
It is relevant to examine the causes of the addiction. In Kevich,[21] an offender’s addiction to alcohol was treated as mitigatory because the Court was satisfied that his alcoholism had been caused by a painful disease. In the present case, the defendant’s personal circumstances have contributed to her gambling addiction.
[21] R v Kevich (Unreported, Court of Criminal Appeal of Victoria, 25 November 1977).
Further, deterrence and protection of the public may be given less weight where there are strong indications that an offender whose offending is related to addiction of some kind can be rehabilitated. In Halewyn,[22] Young CJ, with whom Kaye and Beach JJ concurred, observed:
[T]he fact that the offender is a drug addict does not lead generally to mitigation of the penalty.
There are, however, in the present case strong indications that the applicant is a person who might be rescued from the addiction to which he has been subject, and there is, as it happens, available to the court a process which I think will mark the seriousness with which the court regards the offence and yet afford an opportunity for the applicant to be rescued from drug addiction.
Similarly, the voluntary seeking of treatment by a defendant with a mental disorder can be a mitigating factor.[23]
[22] R v Halewyn (1984) 12 A Crim R 202 at 205-206.
[23] R v P (2003) 87 SASR 287.
The Magistrate observed on the issue of the defendant’s addiction to gambling:
I accept that you had an addiction to gambling by use of poker machines. The problem however is that you resorted to dishonesty to supply the money. There are many people that suffer from gambling addiction it is tragic for them but they don’t all steal money from their employers to support that addiction. Sometimes they overspend the family resources; sometimes they spend their own legitimately hard earned money to the point of complete exhaustion. Not everybody in the same situation to you turns to theft. You could of course have turned to your husband. It seems between you, you had the means to deal with It, certainly the financial means that was evident by the almost immediate compensation that was subsequently paid. Difficulty for me is I have to consider what weight I can give the gambling addiction to the act of dishonesty. As I say I can see the fact that addiction is a causal factor in your dishonesty. I can see the addiction might reduce your sense of moral blameworthiness somewhat when going about your plans to deceive and to steal. I can see that since this offending you have vigorously gone about the issue of your own personal rehabilitation. I can see that has been sustained by the addendum report that I have received today. I can see there is less of a need for personal deterrence in the future with respect of your offending.
The fact remains though that notwithstanding your need to use poker machines you well understood the nature and quality of your dishonest misconduct. You well knew what you were doing was wrong. You well knew that what you were doing was dishonest and you were capable of making decisions about where you would get the funds to sustain your playing of poker machines.
In my view, the Magistrate did not take sufficient account of the defendant’s prospects for rehabilitation. The defendant has set about a course of treatment. This evidences her contrition and remorse and her apparent determination to address her addiction.
Where a defendant has pleaded, or been found, guilty of an offence, and in sentencing submissions has submitted that his or her addiction or personality disorder is a relevant factor in sentencing, the sentence imposed by the court cannot be passed on a basis that is inconsistent with the conclusion that the defendant is criminally responsible for the crime.[24] However, as earlier observed, in my view the Magistrate failed to have adequate regard to the fact that the defendant’s progress in overcoming the major cause of her offending – her gambling addiction – has resulted in a substantially reduced need for deterrence when determining an appropriate sentence. The entering into a suspended term of imprisonment, on the entering into a good behaviour bond with appropriate conditions, will allow the defendant to continue her treatment toward recovery from her gambling addiction, while at the same time marking the seriousness of her crime.
[24] R v Mooney (Unreported, Court of Criminal Appeal of Victoria, Young CJ, Lush and Jenkinson JJ, 21 June 1978).
Conclusion
The Magistrate did not give adequate weight to the restitution made by the defendant, placed too much weight on the defendant’s breach of trust to her employer and failed to give adequate weight to the significant steps taken by the defendant with respect to the rehabilitation of her gambling addiction. In my view the sentencing process miscarried. This Court should re-sentence the defendant.
Having regard to the defendant’s age, her prior good character, the making of prompt and full restitution, her genuine contrition and remorse, and her significant and substantial steps toward rehabilitation, it is appropriate in the circumstances to wholly suspend the sentence of imprisonment that should be imposed for her serious criminal conduct. The head sentence fixed by the Magistrate was well within his sentencing discretion, and was a sentence that was appropriate. However, as observed, the sentence should be suspended on the defendant’s entry into a supervised, three-year good behaviour bond.
I make the following orders. The appeal is allowed. The sentence imposed by the Magistrates Court is set aside. The defendant is to be re-sentenced to a term of imprisonment of nine months. That sentence is suspended on the defendant’s entry into a supervised three-year good behaviour bond.