Green v Police

Case [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 119

NICHOLSON J.       

Introduction

  1. 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…

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Green v Police [2013] SASC 119
Case
[2013] SASC 119
Decision Date

CaseChat Overview and Summary

The case of Green v Police involved the appellant who was sentenced by a magistrate to 15 months imprisonment, reduced by 25 per cent due to her guilty pleas. The sentence was imposed for 16 offences, with consideration of a broader course of conduct spanning over three years. The Magistrate also revoked a suspended sentence bond and ordered that both prison terms were to be served cumulatively, resulting in a total head sentence of 17 months, with a non-parole period of 8 months. The appellant, who was granted bail pending appeal, was employed by a small Adelaide software vendor as an Administration Manager from February 2006 to December 2009. During this period, she committed 70 instances of theft from her employer, amounting to $118,978. She was convicted on 16 offences, with the remaining 54 offences taken into account under s 10(1)(b) of the Sentencing Act.

The primary legal issues before the court were the appropriateness of the sentence imposed, the consideration of the appellant’s personal circumstances, and the impact of her offending on her family, particularly her two children who have learning disabilities and psychological issues. The appellant argued that the sentence was excessive and should be suspended to allow her to care for her children. The court was required to balance the need for deterrence and retribution with the appellant’s personal circumstances and the impact on her family.

The court examined the appellant’s background, her role in the offending, and the effect of her incarceration on her children. The court found that while the appellant’s offending was serious, her personal circumstances, including the impact on her children, warranted consideration. However, the court ultimately upheld the sentence, finding that the appellant’s offending was of such a nature that it warranted a significant custodial sentence. The court determined that the sentence imposed was appropriate, taking into account all relevant factors, including the appellant’s personal circumstances and the impact on her children.

The court dismissed the appeal against sentence.

Orders

Orders of the court

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Background

Background to the litigation

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.

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

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