Chandler v Police No. Scciv-01-1615

[2002] SASC 130

CHANDLER  v  POLICE
[2002] SASC 130

Magistrates Appeal
Nyland J

1. This is an appeal against sentence.  The Notice of Appeal was lodged three working days after the date specified by the Rules.  No point is taken by the Crown with respect to that matter.  I extend the time for filing of the Notice of Appeal to 12 November 2001.

2. The appellant was charged on information with a large number of offences which included 37 counts of false pretences contrary to s 195(1)(a) of the Criminal Law Consolidation Act 1935 (CLCA) and four counts of larceny contrary to s 131 CLCA.  The maximum penalty prescribed for an offence against s 195(1)(a) is four years and with respect to s 131 it is five years.

3. The offending covered a period of approximately 18 months, that is, from about July 1999 to January 2001.  The total monetary value of the loss amounted to about $93,000.  Most was sustained by various banks and financial institutions who had restored their clients’ financial situation.

4. The appellant appeared before a stipendiary magistrate sitting in the Magistrates Court at Adelaide on 6 September 2001 and pleaded guilty to all of the offences. Sentencing with respect to this matter was, however, complex and sentence was not imposed until 24 October 2001. On that date, the learned magistrate referred to the fact that the offending consisted of a series of offences or course of conduct which had taken place between July 1999 and January 2001. She indicated that she intended to impose what she considered to be the main sentence on charges dating from 23 September 2000 to 12 January 2001 and pleas that had been entered in respect to 24 other specified counts. She then utilised the provisions of s 18A of the Criminal Law (Sentencing) Act (Sentencing Act) to impose one penalty with respect to all of that offending and ordered that the appellant be imprisoned for a period of four years.

5. The learned magistrate then referred to other offending by the appellant and with respect to a further 30 specified offences imposed sentences of imprisonment.  Those sentences ranged from three months for some up to 18 months for others.  The learned magistrate determined, however, that it was appropriate for each of those sentences to be made concurrent with the sentence of four years she had imposed with respect to the large group of offences committed on the information which spanned the entire period. 

6. Pursuant to 31(2) of the Sentencing Act the sentence imposed by the magistrate was required to be made cumulative upon the balance of cancelled parole which was calculated at six years, 11 months and 11 days.  This resulted in a head sentence of 10 years, 11 months and 11 days.  The learned magistrate was then required to fix a new non-parole period.  As the sentence could not be back-dated the learned magistrate indicated that she would give credit to the appellant for the two periods of time she had spent in custody, being a period of nine months and one week plus a period of four months.  She then fixed a non-parole period of six years.  Both the sentence and the non-parole period commenced from 24 October 2001.

7. On the hearing of the appeal, the Crown conceded that an error had occurred in the hearing before the learned magistrate with respect to the calculation of the unexpired period of parole.  This had come about as a result of the appellant being charged with an offence dated 16 July 1999.  If that had been the breaching offence, the period referred to by the learned magistrate would have been correct.  That charge was, however, withdrawn and the first breaching offence for the purpose of calculation of the unexpired period of parole occurred on 23 September 1999.  This left the balance to be served as six years, nine months and 10 days.  That term has been confirmed by a letter dated 22 January 2002 from the Parole Board.  The Crown therefore conceded that the appeal should be allowed but only to the extent of correcting that aspect of the matter.

8. The principal argument on appeal was directed to the question of whether the learned magistrate had taken sufficient account of the appellant’s prospects of rehabilitation when fixing the non-parole period.  Associated with that matter was a complaint that the non-parole period was disproportionate to that imposed upon another offender in similar circumstances, as well as a complaint that the learned magistrate had not taken adequate account of the time spent by the appellant in custody awaiting sentence.  If that period of about 13 months was added to the sentence imposed by the magistrate, the appellant had effectively received a total head sentence of about 12 years with a non-parole period of about seven years which it was said, in all of the circumstances, to be manifestly excessive.

9. In considering the question of rehabilitation, it is necessary to have regard to some of the appellant’s background which is most unfortunate.  It includes a history of sexual abuse as a child as well as drug and alcohol addiction.  The appellant is now aged 37 years and has spent much of the last 10 years in the prison system.  The appellant gave birth to a son in April 1986 but has had a fragmented relationship with him due to her frequent incarceration.  Most of her offending consists of crimes of dishonesty committed to support her drug habit. 

10. After being released from prison in 1998, however, the appellant made a valiant attempt to re-establish herself in society.  She managed to obtain a job which led to a partnership in a hotel.  Unfortunately the business failed leaving the appellant in financial difficulties, following which she reverted to the use of heroin and indulged in further offending.

11. On 25 May 2000, the appellant was taken into custody for a period of four months on various charges of false pretences.  Upon entering a plea of guilty she entered the Drug Court program and was involved in that program for a period of about eight months.  Upon her release into the program, the appellant was confronted with a number of difficulties which included outstanding rental from her Housing Trust unit, overdue utilities accounts with threatened disconnections, drug debts, the breakdown of a personal relationship of about 18 months standing and a problem in her relationship with her mother which made access to her son difficult.

12. Upon discovering that she would have to serve nearly seven years of the unexpired portion of her parole the appellant decided not to complete the drug program.  On 16 January 2001 she was again taken into custody and remanded for sentence.

13. In the course of sentencing submissions, a number of reports relating to the appellant’s circumstances were provided to the learned magistrate.  These included a psychologist report from Ms Alison Newton, dated 9 February 2001, and a report from Ms Anna Kemp, dated 13 February 2000.  Ms Kemp is a Senior Community Corrections Officer with the Drug Court.  She provided a report as to the appellant’s performance during her time in the Drug Court program.  There was also a letter written by the appellant setting out her personal circumstances and the rehabilitation and resources that were available to her.

14. Ms Newton considered that the appellant suffered from traits of borderline personality disorder with associated depression largely as a result of the appellant’s experience with child sexual abuse which led in due course to substance abuse.  She also identified the appellant’s dysfunctional behaviour as being caused by financial stresses and unsettled living arrangements.  The magistrate accepted Ms Newton’s findings and conclusions.  Ms Kemp also identified the appellant’s considerably unstable background and lifestyle and referred to the appellant’s lengthy history of drug abuse and constant drug related offending.  Significantly, Ms Kemp noted that at the time of supervising the appellant, her case manager was supervising a large quantity of clients and due to the demands of the large client group could not adequately address the needs of the appellant.  She indicated that upon her acceptance into the program the appellant presented as sincere in her desire to create a drug free lifestyle but was aware of her vulnerability in this area and the possibility of relapse.  The case manager became aware within a few weeks of the appellant’s release into the program that she was struggling with an independent lifestyle.

15. Both reports indicated that the appellant had a commitment to change of attitude and lifestyle but had never been successful in achieving that goal.

16. The learned magistrate had regard to those reports but it is evident from her remarks that she considered that at the time of sentencing the appellant had exhausted the considerable resources which had to that date been made available to her to assist in her rehabilitation.  Mr Richards, who was counsel for the appellant both at the hearing before the magistrate and on the appeal, submitted that the magistrate had allowed herself to be influenced by such matters as the appellant’s failure to complete the Drug Court program and had thereby given insufficient weight to the reasons for the appellant’s failure to comply.  Mr Richards also suggested that the appellant’s offending although consisting of a great number of offences should more appropriately be looked at as two blocks of offending.  The first group occurred as a result of the collapse of the appellant’s business and being left in debt.  The second occurred upon her release from gaol without adequate support systems being provided to assist her in coping with her problems arising out of failure of the business and her debts and the like.

17. Mr Richards also sought to argue the question of disparity by reference to the sentence imposed by the same magistrate on another offender by the name of Smith.  He suggested that there was little difference in the nature of offending between the two cases other than the value of property, the amount involved in Smith’s case being the sum of $18,000.  He said that Smith had a similar poor record to that of the appellant but received a head sentence of 27 months with a non-parole period of 10 months.  Mr Richards also sought to compare the totality of the sentence imposed upon the appellant against that imposed for other crimes, such as false pretences and of manslaughter.  In my opinion, however, only limited assistance can be obtained by these comparisons.  It may be that Smith was fortunate to receive a lenient sentence, but if that was the case, it does not necessarily mean that the sentence imposed upon the appellant was inappropriate.  As King CJ said in R v Spiers and Matthews (unreported, 21 October 1993, S4235):

    “As I indicated to counsel during argument, only limited value can attach to references to other cases involving other offences committed in other circumstances. This court does look at statistics which indicate the level or tariff of sentencing which applies in the courts for particular types of offences, but it sets its face strongly against attempts to cite particular sentences imposed in other cases or attempts to compare the facts of any other particular case with the subject case.

    Sentencing is a matter for the discretion of the sentencing judge paying due regard to the maximum penalty prescribed by law, the circumstances of the particular case and the level of sentence commonly regarded by judges as being appropriate to particular types of offences.”

18. It is obvious from the history of this matter that the learned magistrate was confronted by a difficult sentencing problem.  The appellant’s antecedent report reveals an offending history going back to 1977 when she was still a child.  Since 1982, as an adult, she has been convicted of more than 189 crimes of dishonesty.  The current offences, even looked at as two blocks of offending, involved more than 47 similar offences.  Although the appellant is not to be punished again for past crimes, her extensive prior history reduces the opportunity for leniency for the offending now before the court.  The appellant to date has failed to take advantage of opportunities made available to her to assist in her rehabilitation although it is regrettable that there were not greater support systems in place to assist her with the various problems she faced when released from gaol.  A large number of the appellant’s present offences were however committed by her upon vulnerable victims and at a time when she was subject to parole, and in relation to some of the offences, whilst on bail.  For each of the false pretences charges the appellant was liable to be imprisoned for a maximum period of four years and for the larceny charges a period of five years.

19. The learned magistrate was obliged by law to make the sentence for the current offending cumulative upon the unexpired portion of parole.  Although the unexpired portion of the previous sentence could not strictly be taken into account when considering the principle of totality, it was nevertheless part of the appellant’s personal circumstances which had to be taken into account when considering the appropriate sentence.  The magistrate had regard to the principle of totality and chose to extend some leniency towards the appellant by limiting the sentence of imprisonment for the bulk of the offences to a period of four years, and by making the sentence for the other discrete offences concurrent with that sentence.  By taking into account the time spent in custody prior to sentence, the appellant was finally subject to an effective head sentence of about 12 years with a non-parole period of about seven years.  This might, in the circumstances, appear to be severe, but regrettably it is the inevitable result of the protracted history of offending by the appellant.  I do not think it can be said to be manifestly excessive.  The appeal is therefore only allowed for the purpose of correcting the error with respect to the calculation of the unexpired period of parole.  The appellant will now be subject to a head sentence of ten years, nine months and two days and a non‑parole period of six years to commence from 24 October 2001.