Green v Police
[2013] SASC 119
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
GREEN v POLICE
[2013] SASC 119
Judgment of The Honourable Justice Nicholson
24 July 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW
Appeal from a Magistrate's decision to revoke a suspended sentence and to refuse to suspend a sentence of imprisonment imposed for the breaching offences.
Held: appeal allowed.
Criminal Law Consolidation Act 1935 (SA) s 134; Criminal Law (Sentencing) Act 1988 (SA) s 10, s 18A, s 19B, s 38, s 58; Magistrates Court Act 1991 (SA) s 42, referred to.
Griffiths v The Queen (1977) 137 CLR 293; R v O'Toole [2013] SASCFC 18; House v The King (1936) 55 CLR 499; Dinsdale v The Queen (2000) 202 CLR 321; Elliott v Harris (No 2) (1976) 13 SASR 516; R v Thomson [2009] SASC 237; Kovacevic v Mills (2000) 76 SASR 404; Duncan v The Queen (1983) 9 A Crim R 39; R v Bell [1982] Qd R 216; Stanitzki v Higgins (1994) 63 SASR 309; R v Suckling (1983) 33 SASR 133; R v Crawley (1981) 36 ALR 241; Kernich v DPP (Cth) (1997) 68 SASR 454; R v Lekaj (1997) 92 A Crim R 325, considered.
GREEN v POLICE
[2013] SASC 119NICHOLSON J.
Introduction
This is an appeal from a magistrate’s refusal to suspend a sentence of imprisonment. On the 5th of November 2010, the appellant pleaded guilty in the Adelaide Magistrates Court to 16 counts of theft contrary to s 134 of the Criminal Law Consolidation Act 1935 (SA). The Appellant also provided to the court a “letter of consideration” which identified a further 54 uncharged thefts from the same victim. The matter took some time to reach a substantive hearing. However, on 12 September 2011, the appellant was remanded by a magistrate who was not the Sentencing Magistrate, pursuant to s 19B of the Criminal Law (Sentencing) Act 1988 (SA) until 27 August 2012. The purpose of the lengthy remand (formerly known as a Griffiths[1] remand) was as stated by the Magistrate in his written reasons given at the time.
These are offences which clearly call for a term of imprisonment. Imprisonment is fully merited considering the nature and the extent of the offending behaviour and imprisonment will be measured by years and not by months. Indeed, counsel for the defendant has conceded that a substantial term of imprisonment is warranted. He has argued, however, that any term of imprisonment should be suspended and has given a number of reasons and factors for the Court to consider in making that determination. I am of the view, nevertheless, that final determination should be deferred and that the interests of justice would best be served in this case by allowing some further time to lapse before sentence in order to afford the defendant every opportunity to rehabilitate herself and in order to prove that she has the capacity and resolve to do so.[2]
[1] Griffiths v The Queen (1977) 137 CLR 293.
[2] Reasons for Decision, 13 September 2011, at [7].
The appellant had pleaded guilty to the offences at the first available opportunity and, on all accounts, was fully cooperative with the court and police. The theft offences to which the appellant pleaded guilty also caused her to breach a two month suspended sentence bond which the appellant had entered into on 25 November 2005 for the offence of driving whilst disqualified.
On 15 January 2013, a different magistrate sentenced the appellant to 15 months imprisonment, after allowing a 25 per cent discount for the pleas of guilty. Her Honour, in accordance with s 10(1)(b) of the Sentencing Act, took account of the other 54 offences and, in effect, sentenced the appellant for the 16 offences for which she was convicted but against a background of a course of conduct extending over more than three years. The Magistrate declined to suspend this sentence. Her Honour revoked the suspended sentence bond and ordered that both prison terms were to be served cumulatively, thus arriving at a total head sentence of 17 months. A non-parole period of 8 months was ordered. The appellant was granted bail in the Magistrates Court pending the outcome of a foreshadowed appeal against the refusal to suspend.
Background facts
The victim of the thefts is a small Adelaide software vendor, by whom the appellant was employed from between February 2006 and December 2009 as an Administration Manager. This position as Administration Manager gave the appellant access to the company bank accounts and accounting systems. Between 26 February 2006 and 6 December 2009, the appellant unlawfully took $118,978 from her employer in amounts ranging from $250 to $7000 on 70 different occasions.[3] The appellant took this money through various means including electronically transferring amounts from a number of her employer’s accounts to various bank accounts in her name and then marking the respective transactions in the accounting system as payments made to other corporations or superannuation funds. The appellant also made irregular payments to four separate bank accounts in her name which were recorded as miscellaneous payments to other employees of the company and adjustments (unauthorised) to her salary.
[3] Of the 16 charged offences some were classified as minor indictable and others as summary offences. All of the other 54 offences, taken into account, were classified as summary.
The appellant is a 32 year-old mother of two children, P who was born on 12 December 2003 and S who was born on 26 July 2005.[4] She commenced a relationship with the father of the two children, SJ, when she was about 20 years old. However, the relationship ceased sometime in 2005 or 2006. SJ was incarcerated numerous times during his relationship with the appellant and after it ceased. He was last released from custody and ordered to serve home detention in August 2012. His periods of incarceration placed emotional and financial stress upon the appellant.[5] SJ now lives in country South Australia and the children have contact with him via telephone.
[4] The appellant was 31 at the time of sentencing. She was born 2 April 1984 and therefore 25 when she commenced the offending.
[5] Ms Morrell, Psychological Report (25 April 2011).
Both P and S have learning disabilities[6] and psychological issues as highlighted in the reports of a psychologist Ms Morrell.[7] These difficulties, coupled with, inter alia, the children’s natural attachment to their mother, have created a strong dependence on the appellant by the children.[8] The appellant’s mother and father have also relied considerably on her for financial support in the past.[9]
[6] Ms Morrell, Psychological Report (25 April 2011).
[7] Ms Morrell, Psychological Reports (28 September 2012, 20 August 2011, 28 August 2011, 7 March 2011).
[8] Ms Morrell, Psychological Report (28 September 2012).
[9] See Ms Morrell, Psychological Report (25 April 2011); Letter to Magistrate from Leanne Green dated 5 May 2011.
The appellant completed year 10 at high school, after which she commenced work in the hospitality industry before moving into administration roles in various public and private offices, including the victim’s, until December 2009. In February 2010 the appellant gained employment in Housing SA’s Customer Service Office. Soon after, she was offered a Social Work Traineeship with Families SA (Department of Education and Child Development) in the High Risk Infant Department. In mid-2012 or so, the appellant was successful in obtaining a position as a Financial Counsellor within the Families SA Financial Counselling and Support Program and currently remains in this role.[10] In 2012 the appellant completed a Certificate 5 in Child Protection and Community services[11]and gained approval to undertake a degree in social work at university. However, she has deferred these studies pending the outcome of this matter.[12]
[10] Letter from Jenan Kovacs (Senior Social Worker at Families SA) to Magistrate dated 2 October 2012.
[11] Ms Morrell, Psychological Report (28 September 2012).
[12] Ms Morrell, Psychological Report (28 September 2012).
As noted by the Magistrate,[13] the appellant does have a criminal history. In 2002 she was convicted twice for driving whilst disqualified and received a suspended prison sentence of 14 days on each occasion; in 2003 she was sentenced again for driving whilst disqualified and received a suspended six week prison sentence; and in 2005 the appellant was convicted for the fourth time of driving whilst disqualified and on this occasion she was sentenced to a two month term of imprisonment but placed on the suspended sentence bond the subject of the Crown’s application for breach in the present matter.
[13] Magistrate’s Remarks on Penalty, 15 January 2013, at [14].
As a result of the appellant’s offending, her employer suffered a loss of $118,978, not all of which was recovered through insurance. During the period of the offending approximately 20 fellow employees did not receive all of the superannuation contributions to which they were entitled. Each of these employees has now had their superannuation accounts put in order, although not by way of restitution by the appellant. In addition, considerable time and effort was expended by the victim in its attempts to determine the cause of the discrepancies in its accounts.
In a victim impact statement a director of the victim, Mr M, has described other non-financial effects that the appellant’s offending had on him personally. The offences were committed against a background of the victim company and Mr M, personally, having provided considerable support to the appellant, including: allowing her to work from home when her children were ill; adjusting her work hours and allowing her to work part time when needed; providing pay increases before she ordinarily would have been entitled to them; providing her parents with a loan; allowing her to purchase a car from the employer with a repayment plan favourable to her financial situation; and Mr M’s family offering her toys and clothing to assist with the care of the children. The appellant’s thefts, understandably, were very upsetting to Mr M who must have felt a keen sense of personal betrayal. Mr M also voluntarily transferred his duties as the director in charge of the financial management of the company to another director.
After the offending was discovered, the appellant attended financial counselling[14] and tried to put herself in a position where she could make restitution by selling her house and a number of personal items and by enrolling her children at less expensive schools.[15] However these efforts, ultimately, were unsuccessful and the appellant has been unable to repay her debt. A major difficulty for the appellant, in this respect, emerged when it transpired that she was only able to sell her house at a price that left her with no equity. Before the Magistrate, the appellant submitted that she had repaid $19,160 of the stolen money. However, the Magistrate was satisfied that the appellant had repaid only $8,618. There is no reason to disturb this finding.
[14] Ms Morrell, Psychological Report (28 September 2012).
[15] Ms Morrell, Psychologist Report (28 September 2012); letter from the appellant to the Sentencing Magistrate dated 29 April 2011.
The Magistrate’s reasons
The Magistrate exercised the discretion available under s 18A of the Sentencing Act to fix a single penalty for all 16 offences of theft for which the appellant was to be sentenced. When reaching her decision on the sentence to be imposed and on the question of suspension, the Magistrate had regard to a number of important factors, including: the appellant’s personal circumstances;[16] her contrition including her attempts at restitution;[17] the impact that her incarceration would likely have on her children;[18] the excellent progress towards rehabilitation that the appellant had made while on remand;[19] and the impact that her incarceration would likely have on her further employment and her capacity to provide for the children’s current schooling and the family accommodation.[20] Her Honour, in her careful and detailed reasons, weighed the many personal considerations favourable to the appellant against the undoubted seriousness of the offending and declined to suspend the sentence of imprisonment. Her Honour’s remarks included the following.[21]
The only penalty in my view that it is appropriate in this matter is that of imprisonment. Your defence counsel ask for that to be suspended and prosecution submit that the sentence must be served immediately. I must pursuant to s 10 of the Criminal Law Sentencing Act consider the impact of an immediate term of imprisonment on your children, [P and S]. Their learning disabilities and behavioural issues are in my view, not uncommon. The medical condition of [S] does not require immediate attention and, in any event, it is my view that it is not enough to amount to a basis of exceptional circumstances. Your children being separated from you naturally is going to be difficult and is going to cause them to suffer and for there to be hardship but, in my view, it is no more than might be ordinarily expected for a mother who is sentenced to a term of imprisonment. It is not going to be easy but your family are able to care for your children.
The offending is serious. The amount stolen is significant. It is prolonged offending over a period of three years. It was steady and regular. The total theft is a large sum of amount of money almost $119,000. The majority of the money is unlikely to be restituted. It was calculated offending. Five separate accounts were used to take the money and it was against a background of an employer who was at the time during the offending continued to offer you and exhibit great kindness and generosity to assist you, your children and your family. These were not momentary lapses of judgment. You had many opportunities to reflect upon your actions. You say there were countless times that you wanted to go into your employer and reveal your offending but you did not do so. The offending coupled with your previous criminal record, the fact that the court has given you the benefit of four suspended sentences, calls for the sentence, in my view, that I have to impose, to reflect what is called deterrence, personal and general deterrence, to convey the message to people who work with accounts in businesses, in government departments, that are trusted to be involved in the financial operations of a business, that their duties must be undertaken with the trust that has been placed upon them, the confidence that they are going to deal with those finances honestly otherwise they will be dealt with harshly by the courts. This applies to you also. Your lack of criminal record from the period of October 2006 until November 2009 must be seen against the background that of your offending during that period.
I have had regard pursuant to s 10(1)(b) of the Criminal Law Sentencing Act to the 54 counts of theft that are contained in the letter of consideration. For all of the reasons that I have set out I do not find there is a good reason to suspend any period of imprisonment. The fact that you have made progress with the psychologist Ms Morell [sic] and that you have achieved as you have in your employment during the time that you were subject to the s 19B remand forms a good basis for me to make a finding that your prospect[s] of rehabilitation are good and that supports the setting of a lower than usual non-parole period. The impact of imprisonment will have on your children is also a basis for setting a lower than usual non-parole period. A lower than usual non-parole period that will allow you to spend a greater amount of time on parole and will allow you to continue with the rehabilitation that you have started.
I recognise that upon this term of immediate imprisonment you will lose your employment, it will likely impact on the schooling of your children as they are in private schooling. Your accommodation is also likely to be lost. The fact that you have been at large for a long period is not a reason for the sentence to be suspended but it allows the rehabilitation process that you have started to ultimately continue. The Department of Correctional Services have advised in a written report I requested that if there are any concerns raised while in custody as a result of your employment with Families SA that protective status may be made [available] to you. There is also a compensation amount that has been requested. The maximum I can make in this court is $20,000. I have indicated a sentence of an immediate term of imprisonment. You will lose your employment. Pursuant to s 13 of the Criminal Law Sentencing Act you will have no means to pay any compensation amount. I decline to make an order for compensation.
[16] Magistrate’s Remarks on Penalty at, for example, [17].
[17] At, for example, [7] and [12].
[18] At [28].
[19] At [27].
[20] At [28].
[21] At [25]-[28].
The Magistrate then turned to the Crown’s application for breach of bond. Only three of the appellant’s theft offences fell within the time period of the bond to be of good behaviour. Her Honour, rightly, considered that these breaching offences were more serious than the original offence. In addition, her Honour again directed her attention to the personal circumstances of the appellant, her prior criminal history and the remarks of the Magistrate who imposed the bond.[22] Her Honour did not find proper grounds to excuse the breach nor did she find any special circumstances to justify a reduction of the length of the term of the suspended sentence.[23] The suspension was revoked and the appellant ordered to serve the two-month sentence. The two sentences of two months and 15 months were accumulated.
[22] Magistrate’s Remarks on Penalty at [30].
[23] See s 58(4) of the Sentencing Act.
The nature of the appeal
The power of a Court to suspend a prison sentence is governed by s 38(1) of the Sentencing) Act.
Where a court has imposed a sentence of imprisonment upon a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond—
(a) to be of good behaviour; and
(b) to comply with the other conditions (if any) of the bond.
Peek J (with whom Sulan J agreed) in R v O’Toole[24] recently provided the following explanation of s 38(1).
This provision has been held to require the Court to ask only one question: whether, having regard to all the relevant sentencing considerations in the particular circumstances of the case, there exists good reason to suspend the sentences.[25] The inquiry into “good reason” cannot be reduced to a set of comprehensive criteria, nor circumscribed by a precise formula to be applied in every case.[26] It is also erroneous to attempt to define “good reason” by reference to other cases in which a sentence of imprisonment has been suspended or by inferring that a particular class of offences must attract an immediate term of imprisonment.[27] The decision to suspend must be made solely on the facts and circumstances of the particular case at hand.
[24] [2013] SASCFC 18 at [50].
[25] Wessling v Police (2004) 88 SASR 57 at 63 (Besanko J).
[26] R v Kruger (1977) 17 SASR 214 at 221 (Bray CJ); R v Wacyk (1996) 66 SASR 530 at 535 (Perry J).
[27] R v Wacyk (1996) 66 SASR 530 at 535 (Perry J).
The appeal to this Court is pursuant to s 42 of the Magistrate’s Court Act 1991. The decision whether or not to suspend a prison sentence involves the exercise of a discretion. An appeal from such an exercise of discretion is of the nature described by Dixon, Evatt and McTiernan JJ in House v King.[28]
It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
[28] 1936) 55 CLR 499 at 505. See also: Dinsdale v The Queen (2000) 202 CLR 321 at 324-325; Naera v Police (1995) LSJS 328 at 329; Taylor v Hayes (1990) 53 SASR 252 at 291; Ware v Betts (1987) LSJS 212 at 216; Wessling v Police (2004) 88 SASR 47 at 60.
The parties’ submissions – in essence
The appellant’s ultimate submission is that the refusal to suspend the sentence was an error by the Magistrate in the exercise of her discretion in that when one looks at the circumstances of the case cumulatively, too much weight was placed on some factors and insufficient weight on others. The appellant submitted, inter alia, that the Magistrate erred:
(i)in that she under-estimated the effect of the appellant’s imprisonment on the appellant’s children;
(ii)in deciding that the appellant’s family could look after the children during the course of any sentence of imprisonment of the appellant;
(iii)by failing to give sufficient weight to the appellant’s demonstrated rehabilitation; and
(iv)in that she did not find or sufficiently rely on the fact that the appellant’s ultimate rehabilitation would be severely prejudiced by any sentence of imprisonment imposed.
In both written and oral submissions, counsel for the appellant emphasised the children’s learning disabilities and psychological needs as explained in the reports from Ms Morrell, the psychologist. It was submitted that this underscored their attachment to the appellant and would exacerbate the severe negative impact that imprisonment of the appellant would have on the children. It was submitted that the children’s grandparents would not be able to address the children’s needs as well as the appellant could and that they would be likely to have difficulty in monitoring and dealing with the undermining influence of their father, SJ. In addition, it would seem that one, at least, of the grandparents would have to alter their work schedules in order to care for the children whilst the appellant remained in custody. Counsel for the appellant also submitted that once the children were to learn the true reason for their mother’s absence this quite likely would be destructive of their trust in her which would have adverse consequences with respect to their long term future.
During submissions emphasis was also placed on the appellant’s demonstrated contrition and acts of rehabilitation, including her attempts at restitution, and her undoubted capacity for ongoing rehabilitation. Counsel also drew the Court’s attention to the appellant’s prior criminal record. Whilst she had committed a number of offences for driving whilst disqualified, she had no other prior offending and nothing in the nature of or as serious as that presently before the Court. It was also pointed out that the traffic offences with which she was convicted all occurred during the course of a disruptive and unstable relationship with SJ.
The appellant committed the thefts in order to provide for her children and also to assist her mother who was in particularly difficult financial circumstances. It was also submitted that the appellant committed the offences whilst in a state of emotional turmoil which arose in the context of problems she was experiencing with her former partner, her children’s health and learning difficulties and her parents’ financial difficulties. Counsel submitted that substantial weight should be placed on her achievements since being placed on the Griffiths remand. The period of offending came to an end in December 2009. Since then, over a period of approximately three and half years, not only had the appellant not reoffended in any way but she had obtained what appears to be secure employment with Families SA and is well advanced along a career path that will enable her to contribute significantly and positively not just to her own family but to the community in general. Counsel submitted that there was every reason to believe that if given the opportunity to further her rehabilitation in these respects the appellant would not reoffend in the future.
The respondent also provided comprehensive written and oral submissions. In short, it was submitted that the Magistrate paid proper regard to all relevant factors arising on the evidence and bearing on the exercise of the discretion. Counsel also emphasised the objective seriousness of the offending. Counsel submitted that no error was shown in the Magistrate’s exercise of the discretion open to her and that the personal circumstances of the appellant had been reflected in a lower than usual non‑parole period.
Disposition of the appeal
I am satisfied, in the circumstances of this case and given the appellant’s history in general, but particularly since being charged and convicted of the present offending, that personal deterrence has become of limited concern and was so before the Magistrate. In other words, I am satisfied that a suspended term of imprisonment here would be a proper response to the need to fashion a sentence which pays due regard to the principle of personal deterrence. In this case, the remarks of Bray CJ in Elliott v Harris (No 2)[29] have real force.
So far from being no punishment at all, a suspended sentence is a sentence to imprisonment with all the consequences such a sentence involves on the defendant’s record and his future, and it is one which can be called automatically into effect on the slightest breach of the terms of the bond during its currency. A liability over a period of years to serve an automatic term of imprisonment as a consequence of any proved misbehaviour in the legal sense, no matter how slight, can hardly be described as no punishment.
A suspended sentence is primarily directed to an offender whom it is not appropriate to send to prison for the first time and who is most likely to benefit from an exercise of the Court’s leniency in this respect.[30]
[29] (1976) 13 SASR 516 at 527.
[30] R v Kruger (1977) 17 SASR 214 at 221.
However, the requirement to provide for general deterrence is also a very important matter when considering whether or not to suspend as is, of course, the inherent seriousness of this type of offending and its objective seriousness according to the facts before the Court.
Counsel for the appellant submitted that the Magistrate must be taken to have placed too much weight on the need for deterrence and on the seriousness of the offending in this case and too little on the accumulation of the many considerations personal to the appellant which strongly supported the suspension of the sentence imposed.
In order to succeed with the appeal the appellant must confront a number of difficulties. First, the offending was undoubtedly serious for all of the reasons identified by the Magistrate: it involved a substantial amount of money, it occurred over a very long period of time during which the appellant had numerous opportunities to repent, reflect on her behaviour and to desist, and it involved a very substantial breach of trust with significant consequences for a number of people and, ultimately, irremediable harm caused to her employer. Furthermore, the authorities in this Court emphasise that notwithstanding that factors such as these are often present in this type of offending, there remains a need for condign punishment which, typically, will involve an immediate term of imprisonment.[31]
[31] See for example R v Thomson [2009] SASC 237 particularly at [17]-[27] (Kelly J with whom Bleby and David JJ agreed).
Nevertheless, the following observations taken from the joint judgment in Kovacevic v Mills[32] remain of assistance.
[32] (2000) 76 SASR 404 at 411-12 (Doyle CJ, Mullighan, Williams, Bleby and Martin JJ).
[We] cannot fully subscribe to one aspect of what King CJ said in Cameron, encapsulated in the following passage (at 307):
Nevertheless, in cases of this kind, that is to say of sustained and deliberate fraud over a period of time, the deterrent purpose of punishment must be paramount. The necessity of protecting the integrity of the social security system by deterrent penalties must take priority over other considerations.
We agree that in cases of deliberate and sustained fraud, deterrence must loom large in determining the appropriate sentence. But other matters, especially rehabilitation, must still be considered. We do not agree that deterrence must take priority over all other considerations, at least if that statement means that there is no scope for the Court to be influenced by considerations of rehabilitation in finally arriving at the sentence to be imposed. It may well be that King CJ did not mean to exclude considerations of rehabilitation, or mean to say that a sentence of imprisonment, with at least some of it to be served, must be imposed in every case of sustained and deliberate fraud. But his remarks are capable of being read as requiring an order for imprisonment, with at least some of it to be served, in virtually every case, and absent truly exceptional circumstances.
In our opinion the proper approach to sentencing is better reflected by saying that in a case of the type referred to by King CJ, an order for imprisonment, with at least some of the imprisonment actually to be served, is ordinarily likely to be required. This is because the commission of a number of offences of fraud over a period of time makes imprisonment appropriate even for a first offender, because of the seriousness of the offending. The same matters may require that at least part of that term of imprisonment actually be served, even in the case of a person with no previous convictions. But there is still a need to consider all aspects of the matter, and to consider the interests of society and of the offender in the rehabilitation of the offender. Also, in an appropriate case, there may be room for the exercise of mercy and leniency: see Webb v O'Sullivan [1952] SASR 65 per Napier CJ at 66 and R v Osenkowski (1982) 30 SASR 212 at 212-213.
In some cases the length of the period during which the offending occurs, or the amount involved, or the devices used to effect the fraud, is likely to lead a court to conclude that a sentence of imprisonment actually to be served is required. As is always the case in sentencing, and as Cox J said in R v King, a sentencing standard is a general guide to those who have to sentence in the future, with certain tolerances built into it.
We agree with what Mullighan J said in Keeley v Department of Social Security (unreported, Supreme Court, SA, Mullighan J, No 1093 of 1993, 30 July 1993):
I do not think the Full Court in R v Cameron, in saying that the deterrent purpose of punishment must be paramount, was laying down a principle of sentencing that in all cases of fraud against the welfare system mitigating features of the circumstances of the offence and the offender can never assume prominence. The Court was speaking of the type of serious fraudulent conduct which it there had to consider. In the more serious types of cases, the need to deter others who are minded to deliberately and systematically defraud the system must prevail over matters of mitigation. However, in less serious cases the need for deterrence will not be paramount.
In our view in the more serious cases of sustained and deliberate fraud, deterrence is very important, imprisonment is likely to be required, but all mitigating circumstances and the rehabilitation of the offender must still be considered. Substantial mitigating circumstances, and in some cases considerations of mercy and leniency may lead to the conclusion that a sentence of imprisonment is inappropriate or that such a sentence is appropriate, but that the imprisonment need not be served.
The course of offending in Kovacevic was, arguably, less serious than that now under consideration. Furthermore, these observations were made with reference to such a course of offending, involving the defrauding of the Social Security system. However, in terms of statement of general principle, they remain pertinent to a course of offending which involves systematic defrauding of a private employer, as occurred in the present case.
Another difficulty for the appellant is that the Magistrate in her comprehensive reasons appears to have taken account of the many personal considerations in favour of the appellant but found them, in the exercise of her discretion, to have been outweighed by the need for deterrence and the seriousness of the offending. It is not appropriate for an appellate court simply to prefer its own exercise of the discretion over that of the sentencing court in this situation. As it happens, but apart from the qualifications dealt with below, I agree with the Magistrate that none of the key personal considerations before the Magistrate, either taken alone or in combination with each other, would necessarily lead to what is already a merciful head sentence and non‑parole period being suspended. In this respect, the key considerations can be summarised as:
(i)the impact of an immediate term of imprisonment on the appellant’s children and on their grandparents;
(ii)the progress made by the appellant towards her rehabilitation over the last few years;
(iii)the efforts made by the appellant, albeit largely unsuccessful, towards making restitution;
(iv)the appellant’s prospects for continued future rehabilitation; and
(v)the special needs of the children.
Subject to what follows, I am satisfied that the Magistrate had regard to all of these matters and weighed them against the need for deterrence and the seriousness of the offending. However, there are features of the appellant’s circumstances that do not appear to have been given sufficient weight by the Magistrate. These features, are, in my view, of real significance to the question of suspension.
The Magistrate, in her reasons, appears to have focussed, quite properly, on the appellant’s positive history of rehabilitation both with respect to her employment with Families SA and generally,[33] the fact that she is likely to lose her employment following any term of imprisonment being imposed,[34] the regular financial and psychological counselling that the appellant has been receiving since October 2010,[35] the appellant’s lack of offending since November 2009 as demonstrating good prospects for rehabilitation, and the appellant’s own commitment to rehabilitation[36] including the fact that the appellant has shown that she wants to contribute as an honest hardworking member of the community.[37]
[33] Magistrate’s Remarks on Penalty, for example, at [21].
[34] At [21].
[35] At [22].
[36] At [23].
[37] At [23].
Nevertheless, whilst the Magistrate placed significant weight on these positive features which demonstrate both a successful level of rehabilitation to‑date and good potential for continued rehabilitation in the future, her Honour, with respect, placed insufficient weight on an important consequence that would likely follow from an immediate term of imprisonment.
It is true that the Magistrate recognised that an immediate term of imprisonment would likely cause the appellant to lose her job with Families SA and that, as a result, the appellant also would likely lose the opportunity to maintain the family’s present accommodation and the present schooling arrangements for her children. However, these matters should be accorded more than the usual amount of weight in this case for the following reason. Given the time that has elapsed since the offending (to be discussed further below) the appellant has had the opportunity and has taken advantage of the opportunity to rehabilitate herself. The Court now knows a lot about this appellant. It is not in the position of having to predict what her future rehabilitation prospects are likely to be. It is one thing to impose an immediate term of imprisonment with the knowledge that it will interrupt or even prevent an ongoing process of rehabilitation. However, it is another thing, to my mind, to impose a term of imprisonment which is likely to undo, perhaps irreparably, the successful rehabilitation that has been achieved particularly with respect to the positive lifestyle that has been generated both for the appellant and for her special needs children.
The delay in this case is not of the order of that which has often confronted courts where, for one reason or another, sentencing takes place many, many years after the criminal conduct. In these cases, the court typically is confronted with the problem of weighing years of law abiding behaviour, such as to demonstrate perhaps complete rehabilitation, against the punitive and deterrent aspects of the sentencing process. Often, the court is placed in the invidious position, should it give decisive weight to the former, of being seen to reward the behaviour of the accused in either avoiding detection or avoiding capture and arrest. It is not this particular problem that confronts the Court in this case. Nevertheless, there is support in the authorities for the proposition that where prior to sentence there has been a lengthy process of rehabilitation and the evidence does not indicate a need to protect society from the applicant, the punitive and deterrent aspects of the sentencing process should not be allowed to prevail so as to possibly destroy the results of that rehabilitation.[38] I recognise that the period of time during which the appellant in this case has been undergoing rehabilitation may not be characterised as “lengthy” in the sense employed in the authorities that have dealt with absconding prisoners and the like. Nevertheless, the principle remains apposite to the facts of this case.
[38] The proposition in the text has been taken from Duncan v The Queen (1983) 9 A Crim R 354, but see also R v Bell [1982] Qd R 216 at 220-21 and Stanitzki v Higgins (1994) 63 SASR 309 at 313-14.
On the information that was before the Magistrate together with the additional information placed before the Court on appeal[39] there is every likelihood that the appellant will retain her career opportunities with Families SA should a suspended prison sentence be ordered. However, it would seem clear that an immediate term would cause her to lose her job and her career with Families SA (with the obvious financial consequences for the family). Furthermore it is highly likely that she would, thereby, be deprived of any real prospects of obtaining similar employment on her release from custody. It would seem that, given her history (which is known to her employer) the appellant has been extremely fortunate in being able to secure this particular career path with Families SA and the educational opportunities that are now available to her that will serve to promote that career path. As such, the present case is one where an immediate term of imprisonment is likely to cause irreparable harm to the quite exceptional level of rehabilitation already achieved. There may be no recovery for the appellant and her family from that harm. As such, the appellant, upon release from prison, will be back where she started and with an enhanced risk of reoffending. As such I do not share the confidence of the Magistrate that “the fact that the appellant has been at large for a long period ... allows the rehabilitation process that [she has] started to ultimately continue”.[40]
[39] During the hearing of the appeal the following affidavits were filed and read with the consent of the Crown: affidavits of the appellant sworn 14 June and 28 June 2013; affidavits of the appellant’s solicitor, Damon Creagh Ind, sworn 27 May, 21 June and 5 July 2013. To the extent that any of these affidavits contained what might be regarded as fresh evidence on appeal the Crown took no objection. In addition, the Court has before it an affidavit of James Aaron Slocombe sworn 4 March 2013 filed on behalf of the Crown.
[40] Magistrate’s Remarks on Penalty at [28].
There is another, partly related, feature of importance. There has been a significant delay (more than two years and eight months) between the pleas of guilty on 5 November 2010 and the final resolution of this appeal. The period of time between conviction and sentencing (15 January 2013) was more than two years. Since her arrest sometime prior to 5 November 2010, the appellant has been in the community working at her rehabilitation but with the very real possibility or likelihood of an immediate term of imprisonment hanging over her head.
There were a number of adjournments in the Magistrates Court during 2011, apparently for the purposes of obtaining pre‑sentence and psychological reports and to allow the appellant time to attempt restitution. Ultimately, as earlier mentioned, a Griffiths remand for a little less than 12 months was ordered on 12 September 2011. It was then some four months later that the appellant was finally sentenced. There have also been delays in this Court. The appeal was filed in January this year. A number of adjournments were allowed to enable the appellant to secure funding and legal representation on the appeal. Legal representation was obtained and submissions heard on 28 May and 9 July 2013.
Whether or not these lengthy delays are to be characterised as the fault of the appellant, they arose largely at her instigation and in order to assist the appellant either to take steps towards rehabilitation or to better prepare her case at initial sentencing and on the appeal. The delay is certainly not to be placed at the foot of the prosecution. Nevertheless, a delay of this nature remains a material consideration. Furthermore, the Griffiths remand was granted with the express intention of giving the appellant time to demonstrate a capacity for rehabilitation before a final decision as to suspension was reached.[41] In such circumstances fairness to an accused may require that leniency be exercised.[42]
[41] I recognise that the appellant’s attempt to make restitution was not successful. However, it was not without genuine effort on the part of and at some cost to the appellant.
[42] For example, R v Suckling (1983) 33 SASR 133; R v Crawley (1981) 36 ALR 241; Kernich v DPP (Cth) (1997) 68 SASR 454; R v Lekaj (1997) 92 A Crim R 325.
In this case, the uncertainty for the appellant during the period of delay, the rehabilitation efforts in fact undertaken and the lack of further offending, taken together, suggest that leniency might be exercised. The Magistrate was, in part, alive to the issue of delay. Her Honour noted:[43]
The fact that you have been at large for a long period is not a reason for the sentence to be suspended but it allows the rehabilitation process that you have started to ultimately continue.
In my view, this statement does not properly reflect the potential relevance of delay where the features I have identified, as present in this case, exist. The delay in this case is important at, at least, two levels. First, the ongoing anxiety and uncertainty experienced during the delay by the appellant do, in my view, call for leniency, particularly given the Griffiths remand and the expectation engendered in the appellant. Second, the delay has allowed the appellant to demonstrate actual rehabilitation which, as I have endeavoured to explain, would be lost to the appellant, her family and the community if a prison term were now to be imposed.
[43] Magistrate’s Remarks on Penalty at [28].
These features were not sufficiently attended to by the Magistrate. In my view, this has caused the discretion concerning suspension to miscarry. These aspects of the appellant’s present circumstances substantially strengthen the case for suspension, particularly bearing in mind the remarks of the Full Court in Kovacevic referred to earlier.
I am satisfied, that the appellant’s personal circumstances as put before the Magistrate, when viewed in the light of the additional considerations I have canvassed, are such as to demonstrate good reason to suspend any prison sentence imposed and notwithstanding the undoubted need to provide for general deterrence in this area of offending and notwithstanding the undoubted seriousness of the offending itself. In any view, the prison term ordered, if suspended, should still have a significant general deterrent affect, particularly given the quite unusual circumstances in this case that have contributed to the decision to suspend.
I also must review the Magistrate’s exercise of discretion when she revoked the suspension of the two month prison sentence imposed for the driving whilst disqualified offence. There is no doubt that that also was serious offending and all the more so in that it was the fourth such occasion on which the appellant had committed this particular type of offence. However, those circumstances were taken into account by the Sentencing Magistrate at the time a suspended term of imprisonment of two months was imposed. This driving whilst disqualified offence occurred in 2005. There has been no repeat by the appellant of that offence in the eight years since then. The suspended prison sentence would appear to have achieved a very significant and desired outcome. The appellant has learned her lesson about driving whilst disqualified. Furthermore, the offences giving rise to the breach of bond occurred more than three years ago and, in that time, the appellant has, as indicated, achieved much by way of rehabilitation.
It is for these reasons that the fact that the offending which has given rise to the breach of the bond, whilst more serious, was of an entirely different character carries real weight. In the circumstances, I am satisfied that the Magistrate’s discretion also miscarried here and that there were proper grounds to refrain from revoking the suspension.
The appeal on the grounds of failure to suspend and against the revocation of the earlier suspended sentence is allowed. The two month drive disqualified term of imprisonment brought into effect by the Magistrate and the sentence for the theft offences are set aside.
In resentencing, I take the view that the head sentence ordered by the Magistrate of 15 months imprisonment for the theft offences and with respect to which there has been no appeal, should remain in place. I excuse the breach of bond and take no further action. It follows that I need to set a new non‑parole period. I set a non‑parole period of seven months. However, the head sentence of 15 months and the non‑parole period of seven months will be suspended upon the appellant entering into a bond to be of good behaviour for a term of two years. It will be a condition of the bond that the appellant is to be under the supervision of a Community Corrections Officer for the period of two years. It will be a condition that the appellant is to continue with such psychological and financial counselling as the supervising Community Corrections Officer requires.
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