Hebberman v Police No. Scciv-02-178

HEBBERMAN v POLICE
[2002] SASC 267
Magistrates Appeal

WICKS J This is an appeal against sentence.
Background
On 18 December 2001, at Christies Beach Magistrates Court, the appellant pleaded guilty to a charge of larceny as a servant, contrary to s 176(1)(a) of the Criminal Law Consolidation Act 1935.
The appellant admitted that on 1 July 1998, at Woodcroft, being a clerk or servant to Riding for the Disabled Association of South Australia, Inc (“the Association”) she stole cash in the amount of $11,338.72 from the Association, contrary to s 176(1)(a) of the Criminal Law Consolidation Act. It was alleged that the money was stolen over a 28 month period, between 1 July 1998, and 31 October 2000. At all material times, the Association was a charitable institution.
On 15 January 2002 the learned Magistrate sentenced the appellant to a term of 16 months imprisonment, with a non-parole period of eight months, and declined to suspend the sentence.
The appellant appeals to this Court on the grounds that the sentence was manifestly excessive in the circumstances, and that the learned Magistrate erred by not suspending the term of imprisonment.
Facts
The facts of the matter were outlined by the learned Magistrate. Essentially, in June of 1998 the appellant commenced working as the volunteer treasurer with the Association. Her position required her to receive money by way of cash and by way of cheque donated to the Association by the public. Her duty was to issue a receipt for monies received by the Association and to bank the money. The appellant embarked upon a scheme whereby when cash was donated to the Association she issued a receipt for the money but did not bank that money. She kept the cash for her own purposes and to cover her action, when cheques were donated to the Association she failed to issue a receipt but banked them as if those monies were the cash which she had received and receipted.
In October 2000 concerns were expressed about the financial position of the Association. The appellant relinquished her voluntary position on 31 October 2000. An audit of the Association’s finances was undertaken and when the appellant was questioned in relation to missing money she admitted stealing money from the Association. When questioned by police the appellant told them she took the money for her living expenses, an explanation which was believed by the learned Magistrate.
Fresh Evidence
The appellant has sought to tender fresh evidence by way of affidavit. The appellant has deposed as to her medical history, and her belated willingness to, with the assistance of her family, repay $5,669.36 of the sum stolen immediately, and the remainder at the rate of $100 per month.
On the hearing of this appeal, I allowed this affidavit to be tendered.
Ill health of the appellant
Two exhibits were tendered along with the affidavit which related to the appellant’s health. The first exhibit was a letter from Dr Lovell dated 23 January 2002 outlining the appellant’s medical history and attaching a letter from Dr Tony Mylius. The second was a letter from Dr Lovell dated 21 February 2002 providing a more detailed summary of the appellant’s medical history and also commenting on the effect of 10 days imprisonment upon her health.
Ordinarily, I would not consider admitting into evidence the comments of Dr Lovell in relation to the appellant’s reaction to her incarceration. It is not open to an appeal court to receive evidence in relation to events which have occurred since the imposition of sentence: see R v O’Shea (1982) 31 SASR 481.
In R v Smith (1986-7) 44 SASR 587 King CJ dealt with a situation where evidence was sought to be adduced in relation to an appellant’s deterioration in health due to the stress associated with serving a period of imprisonment. He stated at p 588 that:
"A clear distinction is necessary between fresh evidence as to events occurring before sentence and evidence as to events occurring after sentence."
However, he continued:
" While the evidence sought to be admitted on this appeal in a sense establishes the occurrence of events occurring after the passing of sentence, it does so for the purpose of explaining the full extent and implications of the appellant’s condition of health which existed at the time of sentence. I think that the authorities show that it is permissible to have regard to events occurring after sentence for the purpose of showing the true significance of facts which were in existence at the time of sentence"
I have allowed the evidence in relation to events occurring after the passing of sentence for the purpose of showing the true significance of facts which were in existence at the time of sentence.
It was submitted to me by counsel for the appellant that had evidence been placed before the learned Magistrate in relation to the appellant’s health, the Magistrate would then have been in a position to consider s 38(2c) of the Criminal Law (Sentencing) Act 1988.
In R v Smith King CJ discussed the issue of the effect of ill health upon a term of imprisonment. He stated at p 589 that:
"The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health."
As the Court of Criminal Appeal stated in the recent case of R v Godwin [2001] 80 SASR 195 this statement of principle by King CJ is acknowledged and reflected in the language of s 38(2c) of the Criminal Law (Sentencing) Act. This section indicates that if, in a particular case, it would be unduly harsh for a defendant to serve any time in prison because of that person’s ill health, disability or frailty that is a ground for suspending a sentence of imprisonment.
In R v Godwin the appellant suffered from very serious injuries. She was seriously injured in a motor vehicle accident and was an incomplete quadriplegic who suffered chronic pain disorders, major depression and other psychological problems. Fresh evidence was put before the Court that her health problems were proving to be challenging to manage effectively within the environment of Correctional Services. In particular, she did not have access to particular health services which would have been available to her in the community. In this case the Court was not satisfied that it would be unduly harsh for the appellant to serve any in prison because of her ill health. It was not persuaded that a custodial sentence was inappropriate in the circumstances.
The appellant in the case before me has minor health problems when compared with those of the appellant in R v Godwin. The appellant in this case has produced evidence of depression, anxiety and panic disorder and a number of functional disorders including atypical chest pain. These health problems can adequately be dealt with under the control of Correctional Services. I do not consider that it would be unduly harsh for the appellant to serve time in prison because of her ill health.
Even if the appellant had provided evidence in relation to her ill health to the learned Magistrate, I do not believe that a different outcome would have followed. There is nothing in the further material put before this Court in relation to the appellant’s health which I believe would justify disturbing the sentence imposed by the learned Magistrate.
Various factors to be taken into account
The stealing took place over a period of time. Over the period in question, the appellant showed no remorse or contrition. The conduct in question did not cease at her own volition; it ceased when she was discovered by her employer. This is an aggravating factor to be taken into account when consideration is given to an appropriate sentence.
When discovered, the appellant co-operated with the authorities in making their enquiries. Also, she pleaded guilty at the earliest opportunity, a matter for which credit should be given.
The appellant has had no prior convictions.
The stealing cannot in itself be treated as though it were a first offence. On each occasion on which the appellant stole, she would have had the opportunity to contemplate her conduct and desist. She did not do so.
The Association is an organization established to provide an invaluable service to disabled children. Stealing from a charitable institution is in a class of its own. The appellant was in a position of trust.
A relatively large amount of money was stolen.
The learned Magistrate held that the appellant’s offending was serious and deserving of an order for imprisonment. I agree.
Was the sentence imposed by the Magistrate manifestly excessive?
Given the systematic and deliberate scheme of deception embarked upon by the appellant, I do not consider that the sentence imposed by the learned Magistrate was manifestly excessive. It was well within the range of penalties for this kind of offending. Indeed, the maximum penalty for this type of offence is imprisonment for eight years, so both the head sentence and the non-parole period imposed by the learned Magistrate were at the lower end of the scale.
In passing sentence in this matter the learned Magistrate started with a period of 24 months as a head sentence. He gave credit for a plea of guilty of four months. He concluded that the reduced head sentence was therefore 16 months imprisonment. I have some difficulty in seeing how that can be so. If I have misunderstood the situation, then so be it. As I see it the reduced head sentence should have been 20 months and not 16. However, I can do nothing about that matter, even though what I have to say might be correct. Any action on my part would be to increase the sentence, which I could not do.
Taking a head sentence of 16 months the learned Magistrate fixed an eight month non-parole period. That means that the appellant would be required to serve a period of eight months in prison after which she would be eligible for release on parole.
I agree with a head sentence of sixteen months. I will deal with the non-parole period later in these reasons. Both the remainder of the head sentence and the non-parole period determined later in these reasons are to continue on Friday 16 August 2002 upon the appellant’s surrender to the Magistrates Court pursuant to her bail agreement or such other date when taken into custody. Credit should be given for the ten days already served in prison.
Compensation
As far as I am aware, the question of compensation was not raised during the hearing before the learned Magistrate. In par 11 of the affidavit filed by the appellant in relation to this appeal, the appellant raised the question of compensation for the first time. In that paragraph the appellant said:
"At the time that I entered my plea of guilty, and when Ms Andrews made submissions on my behalf before Mr Johansen SM on 18 December 2001, I did not have the means to make restitution of any part of the moneys taken from the Riding for the Disabled Association of South Australia Inc. In his sentencing remarks Mr Johansen SM considered it an aggravating feature that I was unable to repay any of the moneys which I had taken. When my children learned of the offence, they informed me that they wished to assist me by repaying part of the debt to the Riding for the Disabled Association of South Australia Inc. With their assistance I am able to make repayment to the Association in the sum of $5,669.36. I am able to repay the remaining outstanding sum by instalments of $100 per month. I have agreed to work at my daughter’s caravan business to repay my debt to her. I never wanted to cause hardship to the children at the Riding for the Disabled Association of South Australia Inc."
In effect, the offer of compensation was to pay $5,669.36, being half the amount stolen forthwith and the balance at $100 per month. It would take almost five years for the outstanding amount to be paid off. In my opinion, such a period is too long. That is particularly so, as the appellant has no resources of her own and would be relying on the generosity of her relations to fund the monthly payments. I should point out that the appellant’s relations may have an intention to assist the appellant but they have no obligation to do so.
The question of compensation was raised in the hearing of the appeal before me. The offer set out in the affidavit was mentioned. I was informed that a sum of money had been placed in the trust account of the solicitors for the appellant. I indicated that I was not committing myself to any particular sentencing option. At a later stage, my Associate was informed by the solicitors acting for the appellant that a sum of $5,669.36 had been paid to the Association.
The payment of full compensation does not automatically entitle an offender to a suspension of sentence. However, in exceptional circumstances, offers of full restitution or of full compensation which were not before a magistrate can be an important factor when considering whether or not to interfere with a sentence. In R v Robertson (1984) 115 LSJS 51 King CJ considered that the fact that the appellant was in a position to make full restitution within a period of some months was important. He said at p 53:
"This is a very important factor from more than one point of view. It means that the persons who have suffered loss as a result of the crimes will be restored to the position in which they were before they lost their money and will have suffered only to the extent of any inconvenience and emotional upset which was caused to them and any interest which they might lose as a result of not having the use of the money."
In Radjevic v Police (1997) 67 SASR 478 full restitution was to be made within a period of approximately eight months after the loss was sustained. In this case Debelle J allowed the appeal for the purpose of suspending an 18 month term of imprisonment. He states at p 483:
"[T]he appeal will be allowed for the purpose only of varying the order of the magistrate to suspend the term of imprisonment. I emphasise, that the offer to make full restitution is an important factor which was not before the learned magistrate when he sentenced the appellants and but for that fact I would not have interfered with his sentence."
In addition to the cash sum of half of the amount stolen which has been paid to the Association, the appellant has offered through her counsel to pay the amount outstanding of $5,669.36 by instalments of $100 per month. At this rate, payment would take nearly five years.
The payment of compensation by instalments is fraught with difficulty under the Criminal Law (Sentencing) Act. Under s 14A of that Act, where a court makes an order requiring the defendant to pay a pecuniary sum, it is difficult to see how one could make an order without specifying the time or manner in which payment is to be made. An order that A will pay $X to B with nothing more would require A to pay the money to B forthwith. Such an order is one that relates to the time of payment. As I see it, any order that relates to a pecuniary sum, which is the case here, is unenforceable because the court is not empowered to make it.
Section 61 of the Criminal Law (Sentencing) Act provides that a pecuniary sum imposed by order of a court is payable within 28 days from (and including) the day on which the order was made. Section 62 of the Act provides that a pecuniary sum “is payable as follows (despite the fact that the order is in favour of some person)” to the Manager, Penalty Management, a public servant. On receipt of the money the Manager, Penalty Management is required to pay out the money according to a fixed order of priorities. Under s 64, the Manager, Penalty Management is authorised to make arrangements with any debtor as to the manner and time of payment of a pecuniary sum. Such arrangements can be varied in writing by agreement between the debtor and an officer of the Penalty Management Unit.
As I see it, any arrangement relating to a pecuniary sum is outside the hands of the Court. Such arrangements need to be made with the Manager, Penalty Management or a member of his staff. Any arrangements which the Court may make and which are set out in orders of the Court, can be varied or abrogated by the Penalty Management Unit in the public service. A court order for the payment of a pecuniary sum is limited to 28 days’ duration. This matter would require a number of court orders relating to pecuniary sums within which to implement any arrangements with the appellant.
I have come to the conclusion that a little under five years is too long a period for the payment of the remainder of the moneys outstanding to the Association.
Suspension of the sentence
The offence is a serious one and I have earlier in these reasons set out a list of matters which should be taken into account. The suggested arrangements for the payment of further compensation proved to be unworkable, although, even if those arrangements had been free of obstacles, the length of the period for the payment of instalments is too great and any arrangement for the payment of compensation should not be proceeded with on that account alone.
After giving the matter careful thought, I have decided that the sentence in this matter should not be suspended. However, in recognition of the fact that the appellant has paid partial but significant compensation I propose to reduce the non-parole period from eight to six months.
For these reasons:
(1) I allow the appeal.
(2) I confirm the head sentence of 16 months imprisonment.
(3)I reduce the non-parole period fixed by the learned Magistrate from eight months to six months.
(4)I order that the remainder of the head sentence and non-parole period each continue on Friday 16 August 2002 upon the appellant’s surrender to the Magistrates Court pursuant to her bail agreement or such other date when taken into custody.
(5)I order that credit of ten days be given in respect of the head sentence and non-parole period which the appellant has already served in custody.

[2002] SASC 267

14 August 2002