Doan v POLICE

[2004] SASC 349

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

DOAN v POLICE

Judgment of The Honourable Justice Vanstone

9 November 2004

MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - PROCEDURE ON SENTENCING

Appeal against sentence for three counts of theft - whether adequate weight given to appellant's background, state of depression and family responsibilities - appeal dismissed.

Criminal Law Consolidation Act 1935, s 134(1); Correctional Services Act 1982; Criminal Law (Sentencing) Act 1988, s 18A, referred to.
Mason-Stuart v The Queen (1993) 61 SASR 204; R v Wiskich (2000) 207 LSJS 43; R v Leach (2003) 85 SASR 139, distinguished.
R v Malesevic (1999) 204 LSJS 32, considered.

DOAN v POLICE
[2004] SASC 349

Magistrates Appeal

1. VANSTONE J: Kim Loan Doan appeals against a sentence imposed upon her in the Magistrates Court for three counts of theft, contrary to section 134(1) of the Criminal Law Consolidation Act 1935.  She pleaded guilty to the three offences which were all committed on 7 May 2004 in Adelaide.  The offending was in the nature of shop stealing and involved theft of a number of items from each of three retail outlets, two of which were department stores.  The monetary value of the goods stolen was in excess of $5,200.  All property was recovered.  The maximum penalty for each count is 10 years imprisonment.

2. The sentencing magistrate utilised s 18A of the Criminal Law (Sentencing) Act 1988 to impose a single sentence of imprisonment, that sentence being one of 9 months and 3 days imprisonment.  In fixing that sentence the magistrate said she made a reduction of 20 per cent for the pleas of guilty and made allowance for two weeks spent in custody and also an unspecified allowance for two months on home detention bail.

3. Two grounds of appeal were advanced.  The first complaint was that the sentence was manifestly excessive.  It was alleged that too much weight was given to matter of general and personal deterrence and to the appellant’s criminal history and that too little weight was placed on personal matters.  It was not asserted that any factual error had been made by the learned magistrate;  rather the complaint was that the process must have contained latent error as the sentence was too harsh having regard to all the relevant circumstances. 

4. In support of this ground counsel for the appellant placed particular emphasis on the contents of a report furnished to the magistrate by Mr Richard Balfour, a psychologist.  In an extremely lengthy report Mr Balfour documented aspects of the appellant’s life, her state of health and current circumstances.

5. There is no doubt that the appellant has had a difficult life.  She is now 45 years of age and single.  She was brought up in Vietnam in challenging circumstances.  In 1981 the appellant left Vietnam as a refugee.  The boat on which she fled was intercepted by pirates on several occasions and she suffered severely at their hands.  She then spent time in a refugee camp in Thailand and eventually immigrated to Australia, initially coming to Adelaide.  Presently she lives in Melbourne, as do her sister and mother.  The appellant has four children, three of whom are adults but the youngest of whom was aged 12 years at the time of Mr Balfour’s report.  All her children were residing with her at that time. 

6. Mr Balfour formed the view that the appellant is “prone to depression” and that at the time of her offending she was suffering from a post traumatic stress disorder which had remained undiagnosed and untreated from the time of her departure from Vietnam.  He said that he believed the appellant also suffered from a pathological gambling disorder and that had led to the offending.  Both disorders needed to be addressed in the context of a structured rehabilitation programme if there were to be prospects of rehabilitation.  The appellant told Mr Balfour that she committed these offences with a view to supporting her family by providing them with money, feeding her gambling habit, providing herself and her family with some luxury items and to service an $8,000 credit card debt which she had incurred to finance her gambling.

7. The appellant has a serious record of offending for similar offences.  Between 1994 and 2002 she was dealt with on eleven separate occasions for offences of theft and associated offences.  In November 2000 she was sentenced to and served a period of six months imprisonment.  Most recently she was sentenced in the Victorian County Court in December 2002 for two counts of theft to 30 months imprisonment with a non-parole period of 20 months.  These were plainly much more than minor shoplifting offences.  Having regard to the nature of the appellant’s prior record the magistrate was certainly entitled to take a very serious view of the offences committed in Adelaide.

8. As I have said the appellant’s first contention was that insufficient weight was given to the matters raised by Mr Balfour.  I cannot agree that the sentence imposed necessarily suggests so.  Moreover I disagree with the submission of counsel for the appellant to the effect that the matters referred to by Mr Balfour amounted to serious psychiatric illness such as to depreciate the importance in the sentencing process of the matter of general deterrence.  This was not a case of diminished responsibility.  There was no suggestion that her mental condition impaired the appellant in her ability to understand the nature and gravity of the criminal conduct in which she engaged.  (See R v Leach (2003) 85 SASR 139; R v Wiskich (2000) 207 LSJS 431; Mason-Stuart v The Queen (1993) 61 SASR 204.) In the circumstances it was very much a matter for the magistrate’s judgment as to how much weight she was prepared to give the opinions of Mr Balfour. Certainly the learned magistrate had regard to those opinions. They were mentioned in her concise but comprehensive sentencing remarks.

9. Counsel for the appellant also argued in support of this ground that the learned magistrate gave insufficient weight to the likely effect of imprisonment upon the appellant’s family.  It is not clear from the affidavit filed by counsel for the appellant – who also appeared before the learned magistrate – that any specific submission was put in relation to this matter.  Counsel did submit to the magistrate that during the appellant’s most recent period in gaol in Victoria the 12 year old child “had suffered” that the appellant was the primary support for her four children and that the appellant’s mother was now very ill.  Nevertheless, it is plain that arrangements to care for the children – and particularly the youngest child – must have been made for the previous periods of imprisonment which the appellant underwent.  It is to be expected that any 12 year old child would sorely feel the loss of his mother’s care in circumstances where she were imprisoned.  True it is that the magistrate did not specifically refer to the effect of imprisonment on the appellant’s children.  Nor indeed did the magistrate refer to the limited English which the appellant has and the isolated existence which she may have to endure in prison, away from her family and support group.  But I do not consider that that indicates that she was not well aware in general terms of the impact those matters would have.  Certainly the magistrate referred to the welfare of the children being the appellant’s main priority.

10. I consider that the starting point contemplated by the learned magistrate and the sentence ultimately imposed were within the range of appropriate sentences for this offending.  Counsel for the appellant pointed to a number of sentences imposed in other cases, many of which were concerned with offending of a quite different nature.  In a case like this such references are in my view of very limited assistance.  The striking thing about these offences was the apparently professional manner of their commission, the significant value of the items stolen, and that they were committed against the background of numerous previous offences of the same nature, the most recent of which attracted significant terms of imprisonment.  As I said I consider that the magistrate was entitled to view the series of offences very seriously.  I concede that other magistrates might have imposed a more lenient sentence, but that is not the point.  The sentence imposed was within the available range. 

11. The second ground of appeal complained that the magistrate failed to take into account that the appellant had spent some two months on home detention bail prior to her sentence.  In fact, as I mentioned, the magistrate specifically said that she had taken that period into account, although she did not specify what reduction she had made on account of it.  That approach was entirely consistent with R v Malesevic (1999) 204 LSJS 32. However, in argument, the matter was put somewhat differently. It was alleged that the taking into account of the home detention bail period together with the affording of credit to the appellant for her pleas has, in the scheme of the legislative sentencing regime, worked an injustice against the appellant. It was suggested that had credit for those two matters not been given, then the appellant’s sentence would have been more than 12 months and a non-parole period would necessarily have been set. It was put that it was unlikely that a non-parole period would have exceeded 9 months. Therefore, the argument ran, the benefit to the appellant for her plea and credit for time on home detention was illusory.

12. I think there are two answers to that submission.  The first is that a person who is released upon the expiration of his or her non-parole period remains on parole until the whole sentence is served.  That person remains in jeopardy of having to serve the balance of the sentence if the terms of parole are breached and is subject to supervision during that period.  The appellant will face no such period.  The second answer is that there is nothing inherently illogical or unfair about the result contemplated.  Provisions governing the release of prisoners who have served sentences of various lengths are found in the Correctional Services Act 1982.  A different regime applies to a person who has a non-parole period and indeed within that group there are various provisions which come into play depending on the length of head sentence.  It must be assumed that the Parliament was alive to the consequences of the juxtaposition of the regimes it enacted.  In the result I do not consider that Ground 2 is made out either as framed in the Notice of Appeal or as argued.

13. The appeal must be dismissed.