Buttigieg v POLICE - [2011] SASC 32

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
BUTTIGIEG v POLICE
[2011] SASC 32
Judgment of The Honourable Justice Peek
10 March 2011
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS AND PRACTICE OF COURT ON HEARING - FRESH EVIDENCE
Appellant pleaded guilty to a charge of dishonestly dealing with a document contrary to s 140(4) Criminal Law Consolidation Act 1935 (SA) – appellant dishonestly altered certain details on a document in attempt to obtain first home owner’s grant of $7,000 – Magistrate imposed sentence of 70 days imprisonment.
Whether Court should suspend sentence – whether Court should accept the fresh evidence of a psychological report.
Held: appeal allowed – sentence of Magistrate is set aside – psychological report was admissible pursuant to s 42 Magistrates Court Act 1991 (SA) and relevant – sentence of 70 days imprisonment is suspended upon the appellant entering into a bond to be of good behaviour for 3 years under supervision.
Criminal Law Consolidation Act 1935 (SA) s 140(4); Criminal Law (Sentencing) Act 1988 (SA) s 38; Offenders Probation Act 1913 (SA), referred to.
R v Palliaer (1983) 35 SASR 569; R v Ford (2008) 100 SASR 94; R v Sladic (2005) 92 SASR 36, considered.

BUTTIGIEG v POLICE
[2011] SASC 32
Magistrates Appeal

PEEK J. This is an appeal against sentence pursuant to s 42 Magistrates Court Act 1991 (SA).
Background
The appellant pleaded guilty to a charge of dishonestly dealing with a document contrary to s 140(4) Criminal Law Consolidation Act 1935 (SA). The facts were that the appellant had been eligible to claim an amount of $7,000 as a first home owner’s grant and had entrusted the task of submitting such application to an agent who had failed to carry it out within the statutory time period. There was a procedure whereby an extension of time could be obtained if certain criteria were satisfied but, in the appellant’s case, these criteria could not be satisfied. With knowledge that this was so, the appellant dishonestly altered certain details on a relevant document in an attempt to deceive the authorities into wrongly believing that the criteria for payment were satisfied. The appellant was unsuccessful in his endeavours because a routine departmental check of the false document revealed its falsity.
The proceedings before the Magistrate
The appellant was represented by counsel (not being counsel who appeared on appeal) who accepted that a period of imprisonment was within the discretion of the Magistrate but submitted that any such sentence should be suspended. The most weighty reason advanced by counsel was that, in circumstances where the appellant’s business was struggling financially, the appellant was suffering from depression when he took the course of attempting to dishonestly obtain the $7,000. Counsel was not then in possession of a medical report detailing the appellant’s medical condition and its relevant effects upon the appellant but it appears from his affidavit that he proceeded to make submissions in this regard under the belief that the Magistrate was accepting of those submissions and accordingly did not seek an adjournment to obtain such a report to verify or elaborate upon these matters.
There appears to have been a failure of communication in this regard in that his Honour proceeded to sentence and observed in the context of his refusal to suspend the sentence of imprisonment:
Secondly, I have been asked to take into account as a good reason, your present stress psychological condition. I know precious little about it, apart from you suffer from anxiety because of the financial collapse and you are seeing a psychiatrist and taking some medication. That is certainly a matter to be taken into account and periods of imprisonment that you might serve might have some impact upon your health, although as I say, there is little of a substantive nature I can turn to in that regard.
The proceedings on appeal
On appeal, Mr Stokes conceded that the Magistrate was justified in imposing the sentence of 70 days imprisonment that he did, but contended that such sentence should have been suspended.
Section 38 Criminal Law (Sentencing) Act 1988 (SA) (CLSA) relevantly provides:
38—Suspension of imprisonment on defendant entering into bond
(1)Where a court has imposed a sentence of imprisonment upon a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond—
(a) to be of good behaviour, and
(b) to comply with the other conditions (if any) of the bond.
…
(2a)However, if the period of imprisonment to which the 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 the kind described in subsection (1) that will have effect of the defendant’s release from prison.
…
In considering the application of this section, the court is required to have particular regard to matters militating in favour of suspension. As Wells J observed in R v Palliaer[1] in relation to the suspension power (then to be found within the Offenders Probation Act 1913 (SA)):
The Offenders Probation Act, however, is an Act designed, not to guide or assist the trial judge in imposing head sentences, but to enable him to reflect factors in mitigation personal to an individual offender by an order to suspend an appropriate sentence on conditions that are aimed at rehabilitation, and are specially moulded to meet the probationer’s needs.
[1] (1983) 35 SASR 569, 573.
Of course, it must be accepted that the application of s 38 CLSA is to be considered having regard to all relevant factors which will also include those factors militating against suspension of sentence. Thus in R v Ford[2] Gray J (with whom Doyle CJ concurred) stated:
[52]Whilst “good reason” will usually be derived from circumstances personal to the offender, there is no limitation placed on what may amount to a good reason. There must be something about the personal circumstances of the applicant or the offence that would render it inappropriate to imprison the applicant in the circumstances where imprisonment is the appropriate penalty. It is not a matter of finding something special or exceptional, but rather a matter of weighing all relevant factors. …
(Footnote omitted)
[2] (2008) 100 SASR 94, 106.
In the present case, the correct and required process would have been to:
1delineate the factors that could militate in favour of suspension in the present case;
2consider closely each of those factors; and
3consider whether the cumulative effect of those factors, in the light of all of the circumstances in the case including those factors militating against suspension, constituted good reason to suspend the sentence.
In fact, the Magistrate did generally approach the matter in this way, but it is the gravamen of the appellant’s case on appeal that the Magistrate was denied the opportunity of fully appreciating the seriousness of the mental affliction under which the appellant had been suffering and that his Honour therefore gave inadequate weight to that factor when determining whether there was good reason to suspend.
Fresh evidence – a medical report
Counsel for the appellant sought to tender a report from a practising psychologist who has been treating the appellant from 20 November 2009 until the present date. Counsel for the respondent conceded that the report was relevant and admissible. This approach by counsel was helpful and, in my view, clearly correct. I consider that the report was admissible pursuant to s 42 Magistrate Court Act 1991 (SA) and should be admitted in the present circumstances where it sheds light on an important topic that was being considered by the Magistrate and its absence was satisfactorily explained.[3]
[3] I have in mind statements such as that in the decision of the Full Court in R v Sladic (2005) 92 SASR 36, 45-46 where Gray, Sulan and Layton JJ observed: “Fresh evidence may be admitted on an appeal when it sheds new light on the material before the sentencing judge, or when there was a relevant fact or relevant facts in existence at the time of sentencing which had not been brought to the attention of the sentencing judge and a satisfactory explanation has been proffered for the failure to have informed the sentencing judge of the facts.”
The author of the report deposed that:
I hold the view that he was suffering from major depression with anxiety untreated at the time of the offence on 2^nd May 2008.
I base my opinion on the numerous clinical contacts that I have had with Mr Buttigieg and am satisfied that he was suffering from this condition at the time of the offence.
…
In my professional opinion the psychological condition which he was suffering from significantly impacted upon his ability to make rational decisions at the time of the offence. It would appear that he made irrational and impulsive decisions without thinking through the consequences of his actions.
…
I hold the view that his untreated psychological condition at clinical levels affected his mental state whereby he did not fully understand the consequences of his condition. This does not mean that he was mentally unfit.
…
Ongoing treatment is of paramount importance and should continue on a weekly to fortnightly basis over the next 12 months.
…
I hold the view that if Mr Buttigieg is incarcerated this would have a detrimental impact on his psychological rehabilitation due to the rapport and treatment regime that he is currently undertaking.
…
Psychological treatment has assisted him to understand the consequences of his actions and displays a genuine remorse for his irrational actions at the time of the offence in question.
Counsel for the respondent indicated that he did not wish to cross-examine the author of the report.
Fresh consideration of the suspension decision
The absence of the above material at the sentencing proceedings has caused them to miscarry and, as stated above, the particular complaint made on appeal is as to the exercise of the discretion to suspend the sentence of imprisonment.
Accordingly, I proceed to exercise the discretion afresh. In all of the circumstances of the case, including the content of the medical report, I consider that there is good reason to suspend the sentence of imprisonment which I otherwise confirm.
I come to that conclusion despite the fact that the appellant does not have an otherwise unblemished record. However, I consider that the appellant is now at a significant cross road in his life; there are encouraging signs of rehabilitation taking place and I do not wish to deny him the chance of carrying such process to ultimate fruition. On the other hand, he should appreciate that if he transgresses again, the chances of a similarly lenient disposition will be very slight.
Orders
The sentence of the Magistrate is set aside. I convict the appellant and sentence him to a period of imprisonment of 70 days, such sentence to be suspended upon the appellant entering into a bond to be of good behaviour for a period of three years and to be under the supervision of a community corrections officer during that period of three years.