Dorothy Joyce Addams v Michael David Lloyd No. SCGRG 93/256 Judgment No. 4014 Number of Pages 6 Criminal Law Sentencing

[1993] SASC 4014

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA DEBELLE J

CWDS
Criminal law - sentencing - appeal against sentence - three informations for eight counts of obtaining goods by false pretences - Offences committed within 14 days - Whether proper to order concurrent or consecutive sentences - Totality principle - Offences committed while defendant on parole - Magistrate errs in commencement date of fresh sentences - No regard to the totality of sentence and balance of unexpired sentence - Head sentence manifestly excessive - No alteration to non-parole period
Criminal Law (Sentencing) Acts.31(2).
Kennett v The Queen (CCA, 18/2/92, Judgment No 3273, Unreported); Attorney-General v Tichy (1982) 30 SASR 84 and R v Margetson (1987) 139 LSJS
325, applied.

HRNG ADELAIDE, 24 March 1993 #DATE 25:6:1993
Counsel for appellant:        Mr M J Dadds
Solicitors for appellant:     Sykes Bidstrup
Counsel for respondent:     Ms J Baumanis
Solicitors for respondent:    Crown Solicitor (SA)

ORDER
Appeal allowed.

JUDGE1 DEBELLE J This is an appeal against a sentence ordered on 8 May 1992 by a magistrate sitting in the Mount Gambier Magistrates Court. 2. The appellant was charged on three informations with eight counts of obtaining goods by false pretences. The value of the goods the subject of the eight counts totalled some $4,580. The period in which the offending occurred was between 8 and 21 January 1992. She pleaded guilty to each count. She also asked that four other offences be taken into account. 3. The appellant employed the same method in relation to each of the offences. She was in the habit of using a number of aliases. She obtained credit cards from retail stores using different aliases. She then purchased goods using those credit cards. Two credit cards were used for the offences committed in January 1992. They were issued on behalf of Myer Ltd and were issued in the names Mr Robert Watson and Mrs Lorraine Watson. 4. On 19 April 1991 the appellant had been sentenced in the Mount Gambier Magistrates Court to two years' imprisonment on one count of obtaining goods by false pretences and was ordered to serve a non-parole period of nine months to commence on 15 February 1991. She was released on parole on 9 July 1991 on condition that she not use an alias and not obtain credit of any description or obtain the use of any credit card or enter into any financial contract without the permission of her parole officer. The appellant had acted in breach of those conditions when committing both the offences to which she had pleaded guilty and those which she asked to be taken into account. The four offences which the appellant asked the learned magistrate to take into account were committed between 11 August 1991 and 23 October 1991, the first within weeks of her release on parole. The value of the goods the subject of those offences totalled some $7,700. 5. The eight counts of obtaining goods by false pretences were the subject of three separate informations. The learned magistrate took the view that it was appropriate to impose cumulative periods of imprisonment in respect of each information but to order concurrent sentences in respect of the offences in each information. The sentences ordered on 8 May 1992 were as follows: First Information For obtaining a washing machine to the value of $699 by false pretences the appellant was sentenced to a period of 21 months' imprisonment cumulative upon the sentences for which she was on parole when the offence was committed. Second Information Count 1 For obtaining goods to the value of $265.40 by false pretences on 13 January 1992, the appellant was sentenced to 24 months' imprisonment cumulative upon the sentence ordered on the first information. 6. Count 2 For obtaining good to the value of $757.95 by false pretences on 15 January 1992, the appellant was sentenced to a period of 24 months' imprisonment to be served concurrently with the period of imprisonment ordered in respect of Count 1. 7. Count 3 For obtaining goods to the value of $156 by false pretences on 17 January 1992, the appellant was sentenced to a period of 24 months' imprisonment to be served concurrently with the period of imprisonment ordered in respect of Count 1. 8. Third Information Count 1 For obtaining goods to the value of $203.15 by false pretences on 8 January 1992, the appellant was sentenced to a period of 24 months' imprisonment to be served cumulatively upon the previous orders of imprisonment. 9. Count 2 For obtaining goods to the value of $689.20 by false pretences on 10 January 1992, the appellant was sentenced to a period of 24 months' imprisonment to be served concurrently with the sentence ordered in respect of Count 1 of the third information. 10. Count 3 For obtaining goods to the value of $631.60 by false pretences on 21 January 1992, the appellant was sentenced to a period of 24 months' imprisonment to be served concurrently with the term of imprisonment ordered in respect of Count 1 of this information. 11. Count 4 For obtaining goods by false pretences to the value of $1,177.30 by false pretences on 10 January 1992, the appellant was sentenced to a period of 24 months' imprisonment to be served concurrently with the period of imprisonment ordered in respect of in Count 1 of this information. 12. Thus, the appellant was sentenced to a total period of imprisonment of 69 months. The magistrate ordered that the sentences commence on 8 May 1992. The learned magistrate fixed a non-parole period of 30 months, stating that he would have fixed a longer non-parole period but for the fact the appellant already served three months in custody. 13. The magistrate declined to make an order for compensation, believing that as the appellant had no assets and no prospects of employment, such an order would be quite futile. 14. In his sentencing remarks the learned magistrate expressly referred to s.31(2) of the Criminal Law (Sentencing) Act, 1988 ("the Sentencing Act") and noted that, if he imposed a sentence of imprisonment, it must be cumulative upon the sentences in respect of which the appellant was on parole. The appellant had been in custody since 3 February 1992. Her parole was due to expire on 14 February 1993. However, in ordering that the head sentence should commence on 8 May 1992, the learned magistrate fell into error. By virtue of the provisions of s.75 of the Correctional Services Act, 1982, the appellant commenced to serve the unexpired portion of the sentence ordered on 19 April 1991 on the day she was sentenced for the offences committed in January 1992, namely, 8 May 1992. By virtue of s.31(2) of the Sentencing Act, the total period of imprisonment of 69 months could not commence on 8 May 1992 but would commence on the expiry of the unexpired portion of the previous sentence: Kennett v The Queen (Court of Criminal Appeal, 18 February 1992, Judgment No S3273, Unreported). I will return to the consequences of this error. 15. The learned magistrate was correct in ordering that the non-parole period commenced on 8 May 1992, the day when he imposed sentences: Kennett v The Queen (supra). When fixing both the head sentence and the non-parole period, the learned magistrate properly took into account the period which the appellant had spent in custody prior to being sentenced on 8 May: Kennett v The Queen. 16. The appellant appeals on a number of grounds. Central to the appeal is the ground that the total period of imprisonment is manifestly excessive. The other grounds are that the learned magistrate erred in sentencing the appellant to cumulative terms of imprisonment, that he failed to have any or sufficient regard to the totality principle, that he gave undue weight to the pre-sentence reports before him and gave insufficient weight to a report from Dr Alan Fugler, a psychiatrist, and that he gave undue weight to the cases of R v Rose (Court of Criminal Appeal 25 March 1987, Judgment No 9822, Unreported) and Buttershaw v Ford (Matheson J, 15 March 1990, Judgment No 2159, Unreported). 17. Although this appeal was not instituted until 22 January 1993, the respondent takes no point as to time. 18. Before turning to the grounds for appeal it is convenient to note the antecedents of the appellant. She is a widow and is aged 53. Since 1974, she has been convicted on eleven occasions in South Australia and Victoria for some 200 offences involving dishonesty. In addition to the offence for which she was convicted on 19 April 1991, the appellant had also been convicted in the Naracoorte Court of Summary Jurisdiction on 4 November 1987 for four counts of obtaining goods by false pretences. On that occasion, she was released on a bond to be of good behaviour for 18 months and was ordered to pay compensation. 19. The last occasion on which the appellant was convicted in Victoria was on 2 June 1989 at the Hamilton Magistrates Court, when she was sentenced to a period of 15 months' imprisonment. That period of imprisonment was served at Fairlea Women's Prison. She was released in October 1990. Given that she was sentenced in Mount Gambier on 19 April 1991 she obviously resumed offending soon after her release from Fairlea Women's Prison. 20. The report of Dr Fugler states that the appellant has no sign of any psychiatric disorder. Dr Fugler believes that she is in the average range of intellectual functioning. She expressed a desire to be able to obtain psychiatric assistance both to assist her to avoid offending again and to deal with other areas of psychological functioning. She has little or no family support. As Dr Fugler observed, she is becoming institutionalised and is beginning to view life within institutions as more supportive and comfortable than in the general community. He believed that unless strenuous efforts were made to intervene in her cycle of offending, there is a grave danger she will become a permanent member of the prison population. 21. The report of her probation officer stated that the appellant appeared to exhibit no remorse for her conduct and that there were no realistic prospects of rehabilitation. The report described her as an incorrigible offender. 22. Mr Dadds, who appeared for the appellant, first contended that the learned magistrate had erred in ordering cumulative terms of imprisonment. He contended also that the learned magistrate had overlooked the totality principle. It is impracticable and undesirable to prescribe the circumstances in which sentences should be served concurrently or consecutively: Attorney-General v Tichy (1982) 30 SASR 84 where the proper approach is discussed by Wells J at 92-93. In the same case, King CJ observed at 85: "The essential thing to be borne in mind is that if the sentences are made consecutive there must be no overlapping of the factors brought into account determining the length of each sentence; similarly, if the sentences are made concurrent the gravity of the total criminal conduct must be reflected in the leading sentence." 23. At the end of the day, the sentencing task is to mould a just sentence for the conduct of which the prisoner has been guilty: Attorney-General v Tichy (supra) per Wells J at 93. When discharging that task it might also be relevant to have regard to the totality principle as expressed in R v Smith and Shoesmith (1983) 32 SASR 219 particularly where, as here, the course of offending is constituted by a series of separate offences which, except in two cases, occurred on different days over a period of two weeks. In my view, the learned magistrate had regard both to the principles concerning the imposition of concurrent and consecutive sentences and to the totality principle. He expressly referred to the question whether he should impose concurrent or cumulative sentences and in my view his approach was reasonable. Others might have adopted another approach. The course of offending admitted of a number of different methods of determining a just sentence. I am not prepared to say that the learned magistrate erred in his approach. 24. I turn to the question whether the magistrate gave undue weight to the pre-sentence report and insufficient weight to Dr Fugler's report. The learned magistrate had regard to the appellant's offending on this occasion, her lamentable record, and to the report of Dr Fugler. Each was expressly mentioned and the report of Dr Fugler was noted at some length and the views expressed by Dr Fugler were carefully weighed. The learned magistrate concluded:
    "In my view the prospects of the defendant's rehabilitation here
    at this juncture are not more than speculative. Hopeful
    speculation, admittedly, but much will depend on subsequent
    professional analysis and treatment which I hope will be made
    available to the defendant whilst in custody. For that matter much
    depends upon the willingness of the defendant to undertake that
    treatment and to cooperate with those providing it and to exercise
    an appropriate attitude towards maintaining a level of treatment
    if that is a future recommendation. These are serious and repeated
    offences. They must be viewed against a background of the
    defendant's unenviable and bad record. It is inappropriate in my
    view simply to take into consideration one report and ignore the
    others. The hopeful prospects of Dr Fugler must be viewed against
    a background of the March 1992 presentence report in which the
    defendant is described as incorrigible, deceptive, unlikely to
    benefit from advice or make an effort to change. That is in
    addition to the pessimistic terms of the report of 11 March 1991.
    In my view, the defendant has committed serious and repeated
    offences involving goods having a total value in the order of
    13,000 (sic) and these are serious matters. Indeed that offending
    has to be viewed against a background in which about one month
    after her release on parole she committed other offences. That
    occurred, according to the document I am asked to take into
consideration, only in August 1991." 25. I do not, therefore, accede to the submission that the learned magistrate failed to have sufficient regard to Dr Fugler's reports and gave undue weight to the views of the probation officer. It is obvious that, after he had considered the opinions of both, the magistrate formed his own conclusions. The views expressed in that part of the sentencing remarks just quoted are a realistic assessment of the appellant's future. By her prior record of offending, she had forfeited all claims to leniency. It was quite open to the learned magistrate to conclude that the appellant's prospects of rehabilitation were no more than speculative. 26. Mr Dadds then submitted that the learned magistrate gave undue weight to the decisions in R v Rose (supra) and to Buttenshaw v Ford (supra). I do not agree. Each case involved different factors and provided a guide to the range of appropriate sentences. The learned magistrate expressly noted the facts which distinguished each of those cases from the one before him. 27. As already mentioned, the magistrate erred in ordering that the sentences fixed by him should commence on 8 May 1992. It is necessary for the sentencing court to have some regard to the totality of the outstanding sentence and the sentence then being ordered for the purpose of assessing the total effect on the head sentence: R v Margetson (1987) 139 LSJS 325. This principle stands apart from the totality principle as it is generally understood. It is a principle that has the capacity to weaken the force of the parole period and any sanction for offending while on parole. It can also serve to reduce the effectiveness of the head sentence. But, while R v Margetson stands, courts in this State are bound to apply it. On 8 May 1992 the balance of the sentence to be served by the appellant was one year, one month and six days. The total of the sentences ordered by the learned magistrate and the unexpired portion of the previous sentences resulted in a total sentence slightly in excess of 82 months. When viewed in this way, the total period of imprisonment is, I think, manifestly excessive. I would therefore allow the appeal to the extent only of reducing the head sentence to a period of 4 years 6 months. To that end, I would alter each of the periods of imprisonment ordered by the learned magistrate to 18 months but would make no other alteration. 28. I would not, however, make any order altering with the non-parole period. In all the circumstances and, in particular, the poor record of the appellant, the non-parole period fixed by the learned magistrate was entirely reasonable. 29. The appeal is therefore allowed. The orders of the learned magistrate are set aside and in lieu thereof the following orders are made. First Information The appellant will be sentenced to a period of 18 months' imprisonment to be cumulative upon the sentence for which she was on parole when the offence was committed. The sentence will commence upon the expiry of the unexpired portion of the sentence ordered on 19 April 1991. Second Information In respect of Count 1, the appellant will be sentenced to a period of 18 months' imprisonment to be cumulative upon the sentence ordered in respect of the first information. In relation to counts 2 and 3, the appellant will be sentenced to a period of 18 months' imprisonment to be served concurrently with the period of imprisonment ordered in respect of count 1. Third Information In relation to Count 1, the appellant will be sentenced to a period of 18 months' imprisonment cumulative upon the sentences ordered in respect of the first and second informations. In relation to counts 2, 3 and 4, the appellant will be sentenced to a period of 18 months' imprisonment to be served concurrently with the sentence ordered for Count 1 of this information. 30. The non-parole period will remain as ordered by the learned magistrate, that is to say, a period of 30 months commencing on 8 May 1992.