Fletcher v Heaft - [2020] SASC 75

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
FLETCHER v HEAFT
[2020] SASC 75
Judgment of The Honourable Justice Nicholson
11 May 2020
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - EXERCISE OF DISCRETION - DOUBLE JEOPARDY
An appeal by Martin Fletcher, Chief Executive Officer of the Australian Health Practitioner Regulation Agency (AHPRA), against a sentence imposed on the respondent by a Magistrate. The respondent, Helena Heaft, was convicted of 66 offences under section 116(1)(c) of Schedule 2 to the Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) by holding herself out as being a registered nurse during the period when her registration had been suspended. Convictions were entered but the respondent was discharged without a penalty being imposed on the condition that she enter into a bond to be of good behaviour for a period of three years.
The appellant complains on appeal that the Magistrate: (1) imposed a penalty which was manifestly inadequate; (2) misapplied section 120 of the Sentencing Act 2017 (SA); (3) erred in determining that community service was inappropriate; and (4) took into account an erroneous factual consideration. The appellant seeks orders that the Magistrate’s sentence be set aside and that the respondent be resentenced.
Held (allowing the appeal):
1. The appeal is allowed and the bond entered into by the respondent is set aside.
2. The respondent is to enter into a fresh bond in the terms ordered by the Magistrate together with a condition that the respondent perform 80 hours of community service within a period of 18 months commencing from today.
Health Practitioner Regulation National Law (South Australia) Act 2010 (SA) s 3, s 116; Sentencing Act 2017 (SA) s 3, s 97, s 98, s 105, s 120; Magistrates Court Act 1991 (SA) s 42, referred to.
Police v Cadd (1997) 69 SASR 150; Police v Watson (2016) 125 SASR 212, applied.
Everett v The Queen (1994) 181 CLR 295, discussed.
House v The King (1936) 55 CLR 499; Piva v Brinkworth (1992) 59 SASR 92; R v Morse (1979) 23 SASR 98; R v Harkin (2011) 109 SASR 334; R v Osenkowski (1982) 30 SASR 212; R v Nemer (2003) 87 SASR 168; Dudley & Ors v Department of Primary Industries and Regions South Australia (PIRSA) [2018] SASCFC 23, considered.

FLETCHER v HEAFT
[2020] SASC 75
Magistrates Appeal: Criminal
NICHOLSON J.
Introduction

This is an appeal by Martin Fletcher, Chief Executive Officer of the Australian Health Practitioner Regulation Agency (AHPRA), against a sentence imposed on the respondent by a Magistrate. The respondent, Helena Heaft, was convicted of 66 offences under subsection 116(1)(c) of Schedule 2 to the Health Practitioner Regulation National Law (South Australia) Act

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fletcher v Heaft

Details

AGLC: Fletcher v Heaft [2020] SASC 75
Case: [2020] SASC 75
Decision Date: 11 May 2020

CaseChat Overview and Summary

In the case of Fletcher v Heaft, the appellant, represented by the Crown Prosecutor, sought to appeal against the sentence imposed on the respondent by the Magistrates Court. The respondent, a registered nurse, had been found guilty of various counts of deception and other offences related to her professional conduct. The appellant argued that the penalty imposed was manifestly inadequate, that the Magistrate had misapplied statutory provisions, and that the Magistrate had erred in his assessment of community service and taken into account an erroneous factual consideration.

The primary legal issues revolved around the adequacy of the sentence, the proper application of the relevant statutory provisions, and whether the Magistrate had erred in his discretion concerning community service. The court also had to consider whether the principles of double jeopardy applied in the context of an appeal against a non-custodial sentence and how these principles might influence the exercise of the court's residual discretion.

The court found that while there was a factual error in the Magistrate's addendum reasons, it was not material to the sentencing decision. The court rejected the argument that the sentence was manifestly inadequate and noted that the Magistrate's clearly expressed intention was to sentence as he did. Regarding the double jeopardy considerations, the court held that these principles do not restrict the court's ability to review non-custodial sentences and that the residual discretion to intervene was appropriate in this case to maintain adequate sentencing standards. The court allowed the appeal and ordered that the respondent be resentenced.

Orders

Orders of the court

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Background

Background to the litigation

In summary, the appellant complains that: the penalty imposed by the Magistrate was manifestly inadequate; the Magistrate misapplied section 120 of the Sentencing Act 2017 (SA); the Magistrate erred in determining that community service was inappropriate; and the Magistrate took into account an erroneous factual consideration. The appellant seeks orders that the Magistrate’s sentence be set aside and that the respondent be resentenced. Background The respondent was 54 years old at the time of sentence. She had been a registered nurse for about 30 years and has a 22 year old daughter. Her husband died in March 2019 after being diagnosed with an illness.[2] The respondent was already struggling financially before her suspension and before her husband’s unemployment and subsequent death.[2] The Magistrate erroneously stated in his addendum reasons that the respondent’s husband died prior to the respondent’s offending which took place between February to June 2018. This statement is the subject of appeal ground 4. The respondent has a prior criminal record involving dishonesty. In 2013, she deceived a co-worker on four occasions when she claimed that she needed surgery which was untrue. The co-worker lent the respondent $8,500 for this purpose. On 27 January 2016, the respondent was convicted of four counts of deception and was sentenced to imprisonment for six months, suspended upon her entry into a bond to be of good behaviour for two years. The respondent was also ordered to pay about $8,500 in compensation. In December 2017, the respondent was convicted of two counts of supplying prescription tablets to a person without authority, whilst acting in the course of her duties as a nurse. This offending breached the earlier suspended sentence bond. The respondent was fined $720 with respect to the two counts. Whilst the breach of bond was found proved, the breach was excused. On 29 January 2018, as a result of the respondent’s criminal offending in December 2017, AHPRA immediately suspended the respondent’s registration as a registered nurse. AHPRA considered that the respondent posed a serious risk to people and that it was necessary to take immediate action for the protection of public health and safety. AHPRA required the respondent to provide it with the details of all her employers. On 30 January 2018, the respondent wrote to APHRA stating that she had not practised since her dismissal from SA Health as of January 2018. The respondent did not advise of any other employment. However, she thereafter worked 65 residential care facility shifts organised through a nursing employment agency between 23 February 2018 and when her deception was detected on 19 June 2018 (counts 1-65). The respondent’s last work shift was on 17 June 2018. Count 66 relates to an enquiry made by the respondent’s employer as to whether the respondent was registered, in response to which the respondent lied and stated that she was registered. The respondent offered to send her employer a receipt for the payment of her registration and she provided to her employer a falsified certificate of registration. On 19 June 2018, when the respondent realised that her deception had been discovered, she told her employer that she would no longer work as a registered nurse and would resign. She asked that the incident not be reported to AHPRA. Nevertheless, the respondent’s employer immediately contacted AHPRA.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

NICHOLSON J

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Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

The Magistrate made a factual error in his addendum reasons.[12] However, when consideration is given to both sets of reasons, the error was not material to his Honour’s decision not to impose community service nor, for that matter, a fine. In my view, the Magistrate’s clearly expressed intention was to sentence as he did in any event. I reject this ground of appeal.[12] Although the correct date of death was identified in his Honour’s initial reasons of the same date.Double jeopardy considerations An appeal against a sentence passed in the Magistrates Court pursuant to section 42 of the Magistrates Court Act 1991 (SA) lies, for both parties, as of right. Permission to appeal is not required and therefore there is no role for double jeopardy considerations as explained in Everett v The Queen[13] at this stage of the proceedings. However, such considerations still apply as part of the Court’s residual discretion when considering the appeal itself.[14] [13] (1994) 181 CLR 295.[14] Police v Cadd (1997) 69 SASR 150 at 156-159 (Doyle CJ, Duggan and Mulligan JJ concurring). According to the High Court in Everett,[15] prosecution appeals against sentence should only be allowed in rare and exceptional cases. A prosecution appeal should only be allowed in order to determine a matter of principle, to correct an error of principle, to establish or maintain adequate standards of sentence, to enable idiosyncratic views of judges to be corrected or to correct a sentence which is so manifestly inadequate as to amount to an error of principle.[16][15] (1994) 181 CLR 295 at 299-300.[16] R v Harkin [2011] SASCFC 24; (2011) SASR 334 at [19], R v Osenkowski (1982) 30 SASR 212 at 212-213, R v Nemer (2003) 87 SASR 168 at [22]-[24]. However, I respectfully agree with the further observation of Doyle CJ in Police v Cadd[17] and Stanley J in Police v Watson[18] that the Everett restrictions on prosecution appeals do not apply in relation to an appeal against a non-custodial sentence.[19] [17] (1997) 69 SASR 150 at 159.[18] [2016] SASC 92; (2016) 125 SASR 212 at [5]-[12].[19] Cf, the indecision of the CCA in Dudley & Ors v Department of Primary Industries and Regions South Australia (PIRSA) [2018] SASCFC 23 at [158]. In any event, if Everett principles do still apply where non-custodial penalties are concerned, the double jeopardy considerations said to favour non-intervention should carry far less weight than ordinarily would be the case. I am satisfied that this Court’s intervention is required in the circumstances of this case in order to maintain an adequate standard of sentencing within this national scheme. As such, even if the residual discretion were to apply, I would allow the appeal on the two bases earlier explained.Resentencing As it happens, the respondent’s financial circumstances now are essentially the same as they were at the time of sentencing submissions and prior to sentencing by the Magistrate in December of last year. At the time of the appeal, the respondent had just secured full-time work in a call centre with an annual salary of $50,000 per annum plus superannuation.[20] The respondent’s counsel confirmed on appeal that the respondent’s circumstances otherwise disclosed during sentencing submissions before the Magistrate had not changed. The respondent is still paying off the loan for a car which she had sold, she continues to pay at least $750 per fortnight towards the mortgage on her house, and the respondent’s daughter still lives with her whilst attending university. [20] This information was provided by the respondent during the appeal. Its receipt was not opposed by the appellant. It was not received as fresh evidence on the appeal but as evidence concerning the respondent’s personal circumstances relevant to any resentencing if the appeal otherwise were to be allowed.