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 2010 (SA) (National Law) by holding herself out as being a registered nurse during the period when her registration had been suspended.[1] 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 in the amount of $500 and which required her to come up for sentence in the event she were to breach the bond. Section 97 of the Sentencing Act 2017 (SA) allows a court to discharge a defendant with or without recording a conviction and without imposing a penalty, upon entering into a bond of this nature.
[1] Subsection 116(1)(c) of Schedule 2 to the National Law.
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.
The respondent pleaded guilty on 11 October 2019 to the 66 charges.
The Magistrate’s reasons
The Magistrate sentenced the respondent on 23 December 2019. Convictions on all counts were entered by the Magistrate. The respondent was discharged upon entering into a bond to be of good behaviour for a period of three years. It was a condition of the bond that in the event of its breach the respondent was to come up for sentence. The Magistrate’s reasons included the following.
As I said, I would impose imprisonment if I could. However, jail is not an option which is available to me because there is no jail term attached to any offence. Jailing you would cause a severe impact upon your already precarious financial position and the care of your daughter. However, I say this so that you realise the grave seriousness with which I treat these matters.
The public needs to have confidence in the health system and the people who are employed to care for them. You have eroded that significantly, because in my view, there have been insufficient checks and balances in this system of ‘self-reporting’ and AHPRA notifications.
The question then remains of how I can adequately penalise you to reflect the seriousness of your offending by weighing up your personal circumstances and more particularly your financial circumstances.
A fine is the only option available to me, but cannot be imposed if it would cause you financial hardship. In my view, it would do so and you squarely fall within the hardship provisions of s 120 of the Sentencing Act 2017 (SA). A fine of any sum would cause you severe financial hardship in your already difficult circumstances.
I could impose community service work but you are working full-time, nine to five and you need to continue that work to support yourself, your daughter, and your financial obligations which will now be worsened by these matters. Community service work is inappropriate given your employment obligations which allow you to deal with your financial pressures.
I am then left with little choice but to resort to the imposition of a bond. There is nothing left in the sentencing armoury by which I can adequately deal with your matters otherwise.
I feel that my hands are tied as to the penalty which I must impose, which in my view is grossly inadequate and does not reflect the seriousness of your offending.
In my view, a bond barely satisfies any consideration of personal or general deterrence but I am left with little choice. The only real deterrent aspect is the threat of returning to court for the imposition of a significant fine if you breach the bond.
On the day the sentence was delivered, it was conveyed to the Magistrate that the respondent had been made redundant from the employment she had held at the time of submissions. The Magistrate later provided “addendum reasons”.[3] The Magistrate’s addendum reasons included the following.
My reasons for my sentence were predicated upon [the respondent] maintaining her employment to pay the costs associated with the offending and see her way clear of her financial struggles. These financial struggles, overlaid by the passing of her husband were the core reasons behind this serious offending.
My view in passing sentence was that community service was not an option due to that full-time work. The position changed on the day the sentence was published.
Whilst publishing the reasons, I then considered whether I should re-visit the concept of community service as part of the sentence as [the respondent] could now complete community service work given her lack of employment. I considered that matter carefully on the day and since. My view remains that community service work whilst an option, is inappropriate.
I do not want the considerable volume of community service work which could be ordered and should be ordered in these matters, cutting across the more pressing issue of [the respondent’s] mental health treatment for grief.
[3] Counsel on appeal agreed that the addendum reasons were not in fact published on the same day as the initial reasons, notwithstanding that the date on both sets of reasons is the same; 23 December 2019.
As earlier noted, the reference to the passing of the respondent’s husband being one of the “core reasons behind this serious offending” was incorrect.
Respondent’s personal circumstances
The Magistrate outlined the respondent’s personal circumstances in the following terms.
You are 54 years old and had been a registered nurse for 30 years. You have a 22-year old daughter. Unfortunately, your husband passed away on 1 March 2019 soon after being diagnosed with an illness.
The context of this offending is that you were already struggling financially as a couple before you were suspended and before your husband’s unemployment and subsequent passing.
Money was very difficult and you sold a car that you owed money on, but you were and are still paying the loan off. You had a mortgage over your house and your husband had become unemployed. You have been supporting your two elderly parents who have medical conditions and are aged 86 and 88 consecutively. You do not support them financially but you assist them in their day-to-day living.
The reason behind this offending was a purely financial one and was a matter of need in your view and not greed. You were simply paying the bills and currently your financial situation has not been assisted by the passing of your husband. To your credit, you now work where you earn less money, but it is a full-time work on weekdays. You have maintained your mortgage but you are still suffering from severe financial hardship.
You are now seeking counselling and have a mental health plan in place which should assist you in dealing with your grief and the hurdles life has placed in front of you. You have some prospects of rehabilitation, but maintaining that employment is the key.
You currently earn $1,500 per fortnight. Your mortgage payments total $750 per fortnight and then you have your car loan, as well as supporting your daughter. The 66 counts of the victims of crime levy attract a total imposition of $10,560. Those levies are not part of the pecuniary sum of any fine, they are administrative levies. I cannot waive them, but I would if I could.
Grounds of appeal
The appellant’s four grounds of appeal are that:
(i)the sentence is manifestly inadequate;
(ii)the Magistrate misapplied s 120 of the Sentencing Act 2017 (SA);
(iii)the Magistrate erred in determining that community service was “inappropriate”; and
(iv)the Magistrate took into account an erroneous factual consideration, namely that the respondent’s “financial struggles, overlaid by the passing of her husband were the core reasons behind the serious offending”.
At the time the respondent committed the offences, the maximum penalty for each offence was a fine of $30,000.[4] Given the limited sentencing options then available to the Magistrate, it is difficult to see how ground 1 could succeed independently of either ground 2 or ground 3. In other words, if it was open to the Magistrate to decline to order a fine and to decline to order community service, it is difficult to see how it could be concluded that, in so declining, the resultant sentence was manifestly inadequate.
Misapplication of s 120 of the Sentencing Act 2017
[4] Subection 116(a) of the National Law in force as at early 2018. This was the maximum penalty in place for an individual at the time of the offending. The National Law has since been amended so that, currently, the maximum penalty for breach of this section is - in the case of an individual - a fine of $60,000 or 3 years imprisonment or both.
The appellant contends in appeal ground 2 that the Magistrate misapplied section 120 of the Sentencing Act 2017. This section provides:
120—Order for payment of pecuniary sum not to be made in certain circumstances
(1)The court must not make an order requiring a defendant to pay a pecuniary sum (other than a VIC levy) if the court is satisfied that the means of the defendant, so far as they are known to the court, are such that—
(a) the defendant would be unable to comply with the order; or
(b) compliance with the order would unduly prejudice the welfare of dependants of the defendant, (and in such a case the court may, if it thinks fit, order the payment of a lesser amount).
(2)Subject to subsection (3), the court is not obliged to inform itself as to the defendant's means, but it should consider any evidence on the subject that the defendant or the prosecutor has placed before it.
(3)In considering whether the defendant would be able to comply with the order, the court should have regard to any information available to the court as to other pecuniary sums that have been paid, or are payable, by the defendant.
The Magistrate found that, at the time of sentencing, the respondent fell “squarely within the hardship provisions of s 120 of the Sentencing Act 2017”. The respondent had earned just over $29,000 (gross) as a direct result of her charged offending. At the time of sentencing submissions on 11 October 2019, the respondent was employed casually and earning $1,500 per fortnight. She was liable for mortgage payments of over $750 per fortnight along with other cost of living requirements. Whilst the respondent had been able to obtain this subsequent employment, it had been terminated as a result of the media coverage of her court proceedings by the time she came to be sentenced on 23 December 2019.
The appellant submitted, correctly, that counsel for the respondent had not put to the Magistrate that the respondent could not pay a fine at all, simply that she could not pay a large fine. Nor did counsel for the respondent seek to invoke section 120 of the Sentencing Act 2017. The respondent owned property (subject to mortgage), was employed (at the time of submissions) and had a very small amount of money left over each fortnight. The appellant submitted that, in these circumstances, the Magistrate erred in his application of section 120.
The respondent submitted that the Magistrate, on the information before him, was able to make a broad assessment of the respondent’s financial circumstances and had reached a conclusion which was open to him. Whilst the respondent does own a home she should not be required to sell that house so as to free up such equity as may exist in order to pay the fine. Further, although the respondent did have a modest surplus of funds per fortnight, it is submitted that the Sentencing Act 2017 does not require a defendant to be in regular deficit before they might be assessed as falling within its terms. It was open to his Honour to conclude that section 120 applied.
Section 120 provides that an order to pay a pecuniary penalty must not be made if the court is satisfied that the “means” of the defendant, so far as known, are such that “the defendant would be unable to comply … or compliance … would unduly prejudice the welfare of dependents …”. It is true, as the appellant contends, that the Magistrate did not expressly refer to the language of section 120 and the precise nature of the criteria essential to its application.
The Magistrate made this finding.
A fine is the only option available to me, but cannot be imposed if it would cause you financial hardship. In my view, it would do so and you squarely fall within the hardship provisions of s 120 of the Sentencing Act 2017 (SA). A fine of any sum would cause you severe financial hardship in your already difficult circumstances.
In so doing, his Honour presumably took into account, as he was entitled to do, the $11,770 in victims of crime levies ($10,560) and prosecution costs ($1,210) that were to be ordered against the respondent. Nevertheless, his Honour erred when stating that a fine cannot be imposed if it would cause financial hardship; not even severe financial hardship will necessarily have this effect.
Section 120 requires satisfaction that the defendant would be unable to comply with the order; a quite different matter, although the former might lead to or cause the latter. Section 120 also will operate if compliance with the order would unduly prejudice the welfare of dependents.However, this did not form the basis of the Magistrate’s decision, although the respondent’s unchallenged submission was that the daughter only has a small income from her casual job and was being supported by her parents. I agree with the appellant’s submission that the Magistrate erred in finding, for the reasons he gave, that the defendant fell squarely within “the hardship provisions of s 120”.

However, the respondent’s difficult financial position is a personal circumstance relevant to the overarching sentencing discretion to be exercised. Section 120 prescribes when payment of a pecuniary penalty sum must not be ordered. It does not constrain the giving of consideration to a defendant’s financial circumstances more generally.
In my view, it was open to the Magistrate to find that a fine of any sum would cause the respondent severe financial hardship in her already difficult circumstances and, particularly, given that she was to be liable for the costs and victims of crime levies earlier referred to. This must be seen as a fortiori once the Magistrate became aware on the day of sentencing that the respondent had lost her livelihood. The failure to impose a fine in these circumstances was not unreasonable or plainly unjust in the House v The King[5] sense.
[5] (1936) 55 CLR 499.
Whilst, strictly, the Magistrate erred in that he misapplied the test necessary to the application of section 120, no miscarriage of justice was caused in this respect. I would have exercised the discretion not to impose a fine in the same circumstances particularly once put on notice that the respondent had lost her employment. I would dismiss this ground of appeal.
Appeal ground 3 - Community service
The Magistrate’s reasons for declining to order community service as expressed in his initial remarks were as follows.
I could impose community service work but you are working full-time, nine to five and you need to continue that work to support yourself, your daughter, and your financial obligations which will now be worsened by these matters. Community service work is inappropriate given your employment obligations which allow you to deal with your financial pressures.
Her Honour added to these reasons in his addendum remarks which have been set out earlier.
The appellant submitted that an order for community service should have been made by the Magistrate. Subsection 98(1)(d) of the Sentencing Act 2017 permitted the Magistrate to include, in the bond to be of good behaviour, a condition that the respondent perform a specified number of hours of community service. The appellant contended that the Magistrate erred when finding that an order for community service would be inappropriate due to the respondent’s full-time work obligations, given that an offender is able to perform community service on the weekend and any community service work can be completed over an extended period of time.
The appellant also relied on the fact that, to the knowledge of the Magistrate, the respondent was no longer employed at the time sentence was delivered. As such, the primary justification for declining to order community service did not apply as at the date of sentencing. According to the Magistrate’s addendum remarks, his Honour recognised this but continued to rely on a secondary justification to the effect that such an order would interfere with the respondent’s mental health rehabilitation. It was contended that this was an inadequate justification in the circumstances.
The respondent submitted in response that the criticisms made by the appellant are based on a reading of the addendum remarks in isolation; they should be read in conjunction with the original remarks. The only matter considered in the addendum remarks was the change in the respondent’s financial circumstances and other sentencing considerations remained unchanged. The respondent added that the Court should be slow to assume that the Magistrate was unaware of the provisions of section 105 of the Sentencing Act 2017 that permit community service to be performed on weekends and over a period of up to 18 months.
I consider that the Magistrate erred by not imposing community service work once his Honour had extended leniency by not imposing a fine and certainly once it had become evident that the respondent no longer had full-time employment. The Magistrate justified the decision not to order community service work in the addendum reasons on the basis that it would unduly prejudice the more pressing issues of the respondent’s mental health treatment for grief. However, the material before the Magistrate did not support this conclusion.
Counsel for the respondent made these submissions relevant to this issue.
Unfortunately in March this year [the respondent’s] husband died after a short and unexpected illness. He had a sudden onset illness which resulted in him dying just four weeks after being diagnosed … [The respondent is] struggling to deal with his loss as is their daughter … [The respondent] is currently on a mental health care plan from her GP. That includes her being prescribed with Zoloft. And her GP has recommended that she engage with further counselling, in particular in relation to grief which she intends to do.
. . . .
[The respondent has] indicated that she is prepared to do community service if your Honour is minded to impose that. I note of course that she is currently employed between 9.00 to 5.00 during the week so [it] would have to be weekend time when she would do the community service.
There was no sound basis in the evidence or submissions to conclude that the respondent could not participate in community service work and also successfully pursue her mental health treatment for grief. Indeed, such community engagement may well assist in the rehabilitation of the respondent generally including as to mental disposition.
Whilst the Magistrate’s concerns here were relevant in a general sense, the Sentencing Act 2017 provides substantial protections for a person ordered to undertake community service.[6] The authorities who administer the community service scheme are best placed to ensure that a person’s rehabilitation, employment and employment prospects are not unduly imperilled.
[6] Sentencing Act 2017 (SA), sections 104-105, 110-112.
Subject to the potential for Everett v The Queen[7] considerations to apply, to be discussed later in these reasons, I would allow the appeal on this ground.
[7] (1994) 181 CLR 295.
Sentence manifestly inadequate
Given that I would allow the appeal on appeal ground 3 and resentence, it is unnecessary to consider the question of manifest inadequacy. Nevertheless, I will do so bearing in mind that this matter involves a national scheme.
One of the primary objectives, as highlighted by the appellant, of both the Sentencing Act 2017 and the National Law is the protection of the public.[8] The offending was egregious and the Magistrate acknowledged this. He was plainly frustrated with respect to the limited sentencing options available to him and indicated in the strongest terms that his preference would have been to impose a prison sentence. The fostering of both personal and general deterrence is an important consideration. The appellant submitted that this is even more so in this case because the respondent had contravened a regulatory system established to protect the general public. The need for personal deterrence in this case was emphasised by the appellant. It is submitted that the respondent’s conduct demonstrated a disregard for the requirements of the National Law, evident in the fact that the respondent’s offending occurred in defiance of a regulatory decision suspending the respondent’s registration to protect the public. In addition, a bond previously imposed for earlier offending has been breached by the respondent’s earlier offending. The appellant contended that in light of Piva v Brinkworth,[9] grounds for leniency in sentencing will be limited where the offending was deliberate and calculated.
[8] See section 3 of the Sentencing Act 2017 (SA) and subsection 3(2)(a), Schedule 2 of the National Law.
[9] (1992) 59 SASR 92 (Duggan J).
The appellant submitted that the sentencing standard customarily observed for offences of this kind is the imposition of a substantial fine and provided a lengthy and detailed chart summarising the sentencing outcomes for similar offending in support of this submission. Whilst such comparative sentencing exercises are to be treated with substantial circumspection, I accept the submission in broad terms, although, fines are not always imposed. The appellant also submitted that the respondent’s offending fell within the mid to upper range of objective seriousness for offences of this type. This contention is based on a number of considerations: the respondent held herself out to be a registered nurse and continued to practise in contravention of an immediate suspension imposed by AHPRA designed to protect public health and safety; the respondent worked as a registered nurse in aged care facilities and was responsible for the care of elderly and vulnerable aged care residents; and, the respondent administered and checked the administration of drugs of dependence, despite that fact that her suspension was intended to prevent her from working in a clinical environment and having access to scheduled medications. The appellant also submitted that, whilst the personal circumstances of the respondent at the time of sentence were to be taken into account, they should not be allowed to overwhelm the other sentencing considerations.
A key contention put by the respondent in opposition to appeal ground 1 was that the offending fell within the less serious category of offending because no patients were harmed. The objective seriousness of the offending was not such that the Magistrate was precluded from finding good reason to utilise section 97 of the Sentencing Act 2017 in light of the respondent’s compelling personal circumstances. Further, when regard is also had to the substantial victims of crime levies payable, the overall penalty was sufficiently severe.
I generally accept the appellant’s submissions. Bearing in mind the considerations relevant to the question of manifest inadequacy identified by King CJ in R v Morse[10] and given that the Magistrate erred in failing to make an order for community service work, the sentence imposed was manifestly inadequate. Subject to the potential for Everett considerations to intrude, I would allow the appeal on this ground as well.
[10] (1979) 23 SASR 98.
Process error made by the Magistrate
In appeal ground 4, the appellant complains that the Magistrate sentenced on the basis of an error of fact. The respondent’s husband did not pass away until March 2019, some eight months after the offending. The Magistrate’s statement in the addendum remarks that the passing of the respondent’s husband formed part of the core reasoning behind the serious offending was incorrect. The appellant contended that because of this process error[11] the sentence should be set aside and the respondent resentenced. The respondent conceded that the Magistrate erred, but submitted that the error did not involve a material error of fact.
[11] House v The King (1936) 55 CLR 499.
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.
The appellant submitted that if the Court were to allow the appeal and resentence the respondent, the respondent has the capacity to pay a fine. Her counsel did not submit to the contrary. It was also submitted that, as at the hearing of the appeal and the time for any resentencing, given that the respondent had obtained replacement employment she had an ability to comply with such an order. Ordinarily, these submissions would carry significant weight and a substantial fine would be ordered. However, in this case I do have to take into account (as did the Magistrate) that the respondent is liable for $11,770 for victims of crime levies and prosecution costs. Even with the respondent’s new-found employment, given her overall financial circumstances, I am satisfied that the respondent would be unable to comply with an order for a fine other than a really quite modest one, or if she were to comply, such compliance would unduly prejudice the welfare of her still dependent daughter. A modest fine would not be proportionate to the gravity of the offending.
In these circumstances, I take the view that a more proportionate punishment and one of appropriate severity would be an order for community service. In my view, an order for community service, the requirement to pay $11,770 and the risk that any breach of the bond will lead to the respondent being called up for sentence and facing, again, the potential for the imposition of a substantial fine, properly reflects the seriousness with which this type of offending is to be treated and will serve appropriately the purposes of personal and general deterrence.
I allow the appeal. I set aside the bond entered into by the respondent as ordered by the Magistrate and order that the respondent enter into a fresh bond. The terms of the new bond will be as 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.