Finnigan v Neil
[2007] WASC 199
•31 AUGUST 2007
FINNIGAN -v- NEIL [2007] WASC 199
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 199 | |
| Case No: | SJA:1008/2007 | 9 AUGUST 2007 | |
| Coram: | BLAXELL J | 31/08/07 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Application for an extension of time in which to seek leave to appeal refused | ||
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| PDF Version |
| Parties: | NICOLE LISA FINNIGAN BLAKE NEIL |
Catchwords: | Criminal law Appeal against sentence Multiple offences of minor fraud committed while appellant on bail in respect of other matters Sentencing adjourned to enable appellant to comply with Intensive Supervision Order previously imposed in respect of other matters Failure to comply Whether sentences totalling 18 months' immediate imprisonment excessive Whether Magistrate failed to consider suspended imprisonment |
Legislation: | Sentencing Act 1995 (WA) |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
BLAKE NEIL
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE PM HEANEY
File No : PE 5733 of 2006, PE 25078 of 2006, PE 25079 of 2006, PE 25080 of 2006, PE 25081 of 2006, PE 25082 of 2006, PE 25083 of 2006, PE 25084 of 2006, PE 25085 of 2006, PE 25086 of 2006, PE 25087 of 2006, PE 25088 of 2006, PE 25089 of 2006, PE 25090 of 2006, PE 25091 of 2006, PE 25092 of 2006, PE 25093 of 2006, PE 25094 of 2006, PE 25095 of 2006, PE 25096 of 2006, PE 25097 of 2006, PE 25098 of 2006, PE 25099 of 2006, PE 25100 of 2006, PE 25101 of 2006, PE 25102 of 2006, PE 25103 of 2006, PE 25104 of 2006, PE 25105 of 2006, PE 25106 of 2006, PE 25107 of 2006, PE 38041 of 2006
(Page 2)
Catchwords:
Criminal law - Appeal against sentence - Multiple offences of minor fraud committed while appellant on bail in respect of other matters - Sentencing adjourned to enable appellant to comply with Intensive Supervision Order previously imposed in respect of other matters - Failure to comply - Whether sentences totalling 18 months' immediate imprisonment excessive - Whether Magistrate failed to consider suspended imprisonment
Legislation:
Sentencing Act 1995 (WA)
Result:
Application for an extension of time in which to seek leave to appeal refused
Category: B
Representation:
Counsel:
Appellant : Mr S B Watters
Respondent : Ms F M Allen
Solicitors:
Appellant : Ian Hope
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 BLAXELL J: This is an application for an extension of time in which to seek leave to appeal from sentences totalling 18 months' immediate imprisonment imposed in the Perth Magistrates Court on 27 October 2006 in respect of 30 offences of fraud or attempted fraud, one offence of breach of bail, and one offence of stealing.
2 The appellant did not immediately appeal from this decision, and the present application was lodged on 29 January 2007. On 8 February 2007 I ordered that the application for an extension of time, the application for leave to appeal, and the appeal should be heard together. On 21 February 2007, the appellant successfully applied for, and was released to bail pending the determination of the present application. The matter ultimately came on for hearing on 9 August 2007 and I reserved my decision. The sole proposed ground of appeal is that:
"The learned sentencing Magistrate erred in law by failing to properly consider all alternative dispositions for sentence of the appellant."
The background and history of the appellant's offending
3 The appellant is 37 years of age, single, and up until 2004 seems to have led a blameless life. However, in December 2004 she was dismissed from her long-term employment with the Bunnings Hardware chain after committing a minor offence of stealing as a servant. She was convicted of that offence in January 2005 and received a 6 month conditional release order.
4 Thereafter, the appellant embarked upon what can only be described as a spree of minor offending interspersed with numerous appearances in the Magistrates Court. Her criminal history has become fairly complicated and can only be fully understood by reference to the table this is set out below:
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05/40184 |
Commits fraud - $15 from Cash Converters. |
(Page 4)
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FR 05/8322 |
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FR 05/8326 |
Commits fraud - $85 from Cash Converters Fremantle. |
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(Page 5)
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06/12257 |
Steals registration plate from Scarborough - 6 months ISO 1/6/06 |
(Page 6)
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(supposed to be first appearance on 06/12253 to 06/12258) - 15 months ISO 1/6/06 |
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06/15220 06/15221 06/15222 |
Uses false number plate - $150 fine 1/6/06 Drives unlicensed vehicle - $150 fine 1/1/06 Drives under fines suspension - $250 fine 1/6/06 |
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Adjourned for written PSR. |
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(Page 7)
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5 The present application relates to the sentences imposed on 27 October 2006 in respect of the 30 offences of fraud or attempted fraud against Bunnings (committed between 8 and 31 October 2005), the breach of bail committed on 19 June 2006, and the stealing committed on 3 July 2006. The last two of these offences were of a very minor nature, but have significance for present purposes because they were committed in breach of the Intensive Supervision Order imposed on 1 June 2006 and while the appellant was on bail.
6 The 30 offences of fraud against Bunnings were each committed in very similar circumstances and involved the same modus operandi. On each occasion the appellant visited one of 10 different Bunnings stores, attended at the refund desk, and sought a refund in respect of an item that she falsely claimed to have purchased. On 29 occasions she was given the refund and on the last occasion she was refused a refund because she was suspected to have taken the item from a shelf.
7 On 20 occasions the items that the appellant purported to return were sprinklers, and on nine occasions, the items were light transformers. The last offence occurred on 31 October 2005 when the appellant selected a power tool from a shelf and attempted to obtain a refund. When she was refused the refund, she walked out of the store with the power tool but returned it when a staff member pursued her outside the store. The various refunds that were unlawfully obtained totalled $2,482.30.
8 Although the appellant ultimately pleaded guilty to each offence, she never disclosed the means by which she obtained the various sprinklers and light transformers. When I inquired about these matters on the hearing of the present application I was told by the appellant's counsel that she had purchased a large quantity of sprinklers at staff discount prices during the time that she was employed at Bunnings. These were used by her for the purposes of an after hours business repairing sprinklers, and it was leftover stock in respect of which she falsely obtained refunds. I was
(Page 8)
- not provided with any information as to the source of the light transformers.
9 Counsel also informed me (on specific instructions from his client) that the appellant repeatedly used the same receipt for the purpose of obtaining refunds on sprinklers. When I queried whether it was possible for this to have occurred, counsel obtained further instructions and informed me that there may have been two receipts. However, it later became apparent from the materials before me that the appellant had produced a separate receipt at the time of committing each offence (as per the receipt numbers set out in the various statements of material facts). In light of this revelation, counsel obtained yet further instructions, and I was informed that "there may well have been more" than two receipts.
10 In these circumstances, it is clear that the appellant's assertions as to the manner in which she committed the offences is totally unreliable. Nevertheless, I have difficulty in conceiving how the appellant was able to obtain a fresh receipt prior to committing each offence of fraud. Obviously, there would have been no point (and no fraud) if the appellant had purchased each item and then used the receipt to obtain a refund. The only reasonable inference is that in some way the appellant was able to perpetrate each fraud as a result of knowledge she had gained in the course of her employment with Bunnings.
11 The appellant has always claimed that she committed the frauds and other offences in order to obtain money to meet the costs of veterinary treatment of her sick dog. She asserts that the dog required treatment for cancer, and that prior to its death in late 2005 she incurred veterinary fees in excess of $15,000. Needless to say, this explanation cannot extend to all of the appellant's offences, and particularly some of those that were committed during 2006.
The proceedings in the Magistrates Court
12 I understand from the materials before me that it was not until the appellant's appearance in the Magistrates Court on 26 April 2006 that she pleaded guilty to a total of 56 charges including the 32 matters the subject of the present appeal.
13 The appellant failed to appear on the following remand date, and a bench warrant was ultimately issued. On 1 June 2006 she appeared once again and received an 18 month Intensive Supervision Order in respect of some of the offences. (It is not clear to me why sentencing in respect of the remaining matters was then adjourned).
(Page 9)
14 On the next remand date, the appellant once again failed to appear, and it was not until 6 July 2006 that she came to be sentenced for various offences including the Bunnings' frauds. On that date, the Magistrate noted that the appellant's response to the Intensive Supervision Order imposed on 1 June had been less than favourable in that she had been late in making contact with her Corrective Services officer and had failed to commence 120 hours of community work that she was required to perform. In that regard, the appellant claimed to have strained her back but had not produced a medical certificate as requested. There was then the following exchange between the Magistrate and the appellant (who at that time was unrepresented):
"HIS HONOUR: I can assure you, Ms Finnigan, when I came down here today, given your continual - continuous offending and this very bad pre-sentence report, that I proposed to deal with this by way of a prison sentence. That's what was going to happen today - but I will adjourn it for three months to give you - to see if - and I also understand - I also though I was going to deal with the burglary.
If I had of dealt with the burglary, you would have got gaol. If someone else dealt with it and you'd have got an intensive supervision order. So it's reduced - I don't have the charges that I thought I was going to have - but nevertheless if - on 27 October 06, if I get another report that tells me how you've failed to do this because you forgot, or you hurt your back, or you couldn't it - and you haven't done - contributed by doing a lot more than the 120 hours community service - - -
FINNIGAN, MS: Yes, sir.
HIS HONOUR: Then you will go to gaol.
FINNIGAN, MS: Yes, sir.
HIS HONOUR: Another reason that restrains me from sending you to gaol straightaway, is the fact that your record is not all that bad. You just seem to have started getting into trouble in a big way last year. Now - and I searched the pre-sentence report to find any reason, and it doesn't appear that you're - according to the reports you don't appear to be in the grip of drugs that sometimes cause this to happen.
FINNIGAN, MS: No sir.
HIS HONOUR: There's very little explanation for your continued dishonesty. Right. When you've signed your papers you'll be free to go, Ms Finnigan, and be back on 27 October 06."
(Page 10)
15 When the appellant returned to the Court on 27 October 2006, the Magistrate had before him a report from Community Justice Services which included the following information:
"Ms Finnigan's past response to supervision is assessed as very poor. Since the report submitted on 11/07/2006, records indicate that Ms Finnigan has still not completed any out of the 120 hours of community service work ordered, and has not provided any medical certificates to excuse her attendance to date. Further, Ms Finnigan failed to report to her Community Corrections Officer on 17/10/2006 as directed on 13/10/2006, failed to report on 30/08/2006 as directed on 24/08/2006, and failed to report on 01/08/06 as directed on 25/07/2006. Moreover, Ms Finnigan failed to attend for psychological appointments on 17/10/2006 as directed on 13/10/2006 and failed to attend a psychological appointment on 30/08/2006 as directed on 24/08/2006. Further, Ms Finnigan had a case Conference with the Senior Case Work Supervisor on 13/09/2006 and was told of the need to comply with all conditions of her Order, being handed a Breach of Order Warning letter in person, however, Ms Finnigan appears to have totally disregarded this notice.
It is also noted that the Stealing and Breach of Bail offences (Charge Numbers PPE 38042/06 and PPE38041/06), breach the 3 Intensive Supervision Orders imposed on 01/06/2006."
16 When asked to explain her continued failure to comply with the Intensive Supervision Order, the appellant stated:
"I just really wanted to get some work under my belt and pay some bills." (T 4)
17 His Honour then heard submissions from the prosecutor, after which the following exchange occurred:
"PROSECUTOR: We say, the crown says, that Ms Finnigan simply makes all the right noises, she is a woman who has persisted in a determined course of offending, and in speaking for the people of Western Australia the only appropriate disposition in this matter is that she receive a custodial term. The only question for your Honour is whether you are going to suspend it or not. That is our position.
HIS HONOUR: Do you want to add anymore, Ms Finnigan?
FINNIGAN, MS: Your Honour, just that there is a lot of remorse (indistinct) I've never done anything like that before and I did it out of desperation and I'm truly sorry.
HIS HONOUR: Well, you see, that's - - -
FINNIGAN, MS: And if I could make it right, I would.
(Page 11)
- HIS HONOUR: That's where we have difficulty. That's where I have difficulty in accepting anything you say because you have made no effort. As the sergeant said, you wouldn't tell them where you were getting the things from in the first place. You said you were buying them. Why you would want to buy a multitude of sprinklers only for the purpose of going and getting your money back is just completely illogical.
You were placed on - on 1 June 06 for a series of gaining benefits by fraud. There were 11 of them. You were placed on a community based order. You were given the opportunity then not to be sentenced to imprisonment by being required to go on an intensive supervision order and do 120 hours. We are now five months down the track and you haven't done one - not one hour.
When you were here last I sent you away explicitly with the instruction that it would be in your benefit to get the 120 hours in. You have not done them. Not one of them. Your excuse is that you have got a job somewhere. The person who was your officer asked you to provide details of where you are employed so that they could just perform the fundamental exercise of checking up and you failed to do so. This report was made on the 24th. You tell me now that you did that on the 25th and, regrettably, I don't believe a word you said.
FINNIGAN, MS: It's true, sir.
HIS HONOUR: Well, it might be true but I don't believe it. You had the opportunity just simply to tell your officer where you were working. He would have made a phone call and the report would have been different.
With every opportunity you have had under supervision, you have failed to do so. I adjourned this matter to today from about three months ago to give you the opportunity to prove that you are worthy of being placed on a community based order and they say, 'No, definitely not.'
FINNIGAN, MS: I just - - -
HIS HONOUR: So - go on.
FINNIGAN, MS: I just had really big bills to pay and I wanted to pay them and, you know, I'm happy to do it but, I mean, if I don't get to work I'll live on the streets.
HIS HONOUR: Yes, well, I'm afraid you've run out of luck. You had every opportunity to do just a little bit to stay out of gaol and you've done absolutely nothing." (T 5 - 7)
18 The Magistrate then went on to impose terms totalling 18 months' immediate imprisonment. In doing so, his Honour did not expressly consider the question of whether or not those terms could be suspended.
(Page 12)
The merits of the appeal
19 The appellant's essential contention is that the Magistrate failed to consider the imposition of a suspended sentence, and in effect "jumped from an ISO to a term of immediate imprisonment, without considering the middle option, a suspended term when he is required to do so". In advancing this contention, the appellant relies upon a passage in the transcript on 14 July 2006 when his Honour stated:
"I'm just beginning to wonder whether it's worthwhile wasting time putting you on an intensive supervision order, or just sending you to gaol and let you do your time." (T 5)
20 However, after making that comment, his Honour did not immediately sentence the appellant but adjourned the proceedings for three months to enable her to comply with the Intensive Supervision Order. His Honour also made it clear that if she failed to take advantage of that opportunity, she could expect to receive sentences of immediate imprisonment.
21 It is true that his Honour did not refer to the possibility of suspended imprisonment at any time on either 14 July or 27 October 2006. However, his Honour is a very experienced sentencing Magistrate and would have been well aware of s 39(3) of the Sentencing Act 1995, which requires that a sentencing option in s 39(2) should not be used unless the court is satisfied "that it is not appropriate to use any of the options listed before that option". I have no doubt that his Honour did consider the option of suspended imprisonment but came to the view and was satisfied that that option was not appropriate.
22 Nevertheless, the appellant was entitled to know that the Magistrate had in fact gone through that process of reasoning. Justice must not only be done, but must be seen to be done, and in the absence of express reference to suspended imprisonment, the appellant had no way of knowing that that option had been considered.
23 It follows, in my view, that the appellant has established what might ordinarily have been a viable ground of appeal. However, in the particular circumstances of the present case, I consider that there has been no substantial miscarriage of justice.
24 In this regard, the appellant's history of offending and her failure to take advantage of the last opportunity offered to comply with the Intensive Supervision Order made it inevitable that she would receive terms of immediate imprisonment. In particular, her continuing and
(Page 13)
- seemingly contemptuous breach of the Intensive Supervision Order effectively jettisoned any prospects for serious consideration of the option of suspended imprisonment. It was probably for this reason that the Magistrate neglected to make express reference to having discarded the option of suspended imprisonment.
25 In my view, the sentence imposed fell well within the range of a sound discretion. It follows that the application for an extension of time in which to seek leave to appeal should be dismissed.
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