JENKINS v POLICE - [2004] SASC 256

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
JENKINS v POLICE
Judgment of The Honourable Justice Gray
27 August 2004
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - FALSE PRETENCES AND OTHER FRAUDS AND IMPOSITIONS
Appellant convicted of obtaining by false pretences pursuant to section 195(1)(a) Criminal Law Consolidation Act 1935 (SA) - 9 month sentence of imprisonment suspended upon entry into good behaviour bond imposed by magistrate - Appeal against sentence on grounds it was manifestly excessive - Consideration given to appellant's personal circumstances including antecedents, psychiatric issues and contrition - Consideration of further psychiatric evidence - Appeal allowed - Three year good behaviour bond imposed with conditions.
Criminal Law Consolidation Act 1935 (SA) 195(1)(a), referred to.

JENKINS v POLICE
[2004] SASC 256

GRAY J
The appellant was charged with the offence of obtaining by false pretences pursuant to section 195(1)(a) of the Criminal Law Consolidation Act 1935 (SA). It was said that he obtained a cheque with intent to defraud his employer.
The offending conduct occurred on 6 January 2003. The appellant’s employment had been terminated. He received his final wages cheque for $761.14. He went to a local hotel, cashed the cheque, spent the money on alcohol and gambling. The appellant then contacted his employer and pretended that he had lost the cheque. His employer cancelled the cheque and issued another in the same amount. The appellant then cashed the second cheque at the hotel and continued with his drinking and gambling.
Following his detection and arrest the appellant acknowledged his guilt. Reparation has been made. The magistrate imposed a nine month sentence of imprisonment. He exercised his discretion to suspend the sentence on the appellant’s entry into a good behaviour bond. The magistrate remarked:
I am very concerned about your personal particulars, your past history and the present offending. You have escaped gaol by a whisker in the past and you are on the doorstep of going to gaol again. I am concerned that someone with your problems is working in the position you are in, but that is not something that I need to deal with other than to caution you about further offending.
Noting Dr Raeside’s report, your parents’ letter and counsel’s submissions I feel the offence does not call for an immediate term of imprisonment. You should be monitored for a couple of years. I understand you have been on medication and your treatment needs further monitoring.
You are convicted and imprisoned for a period of 9 months. That imprisonment is suspended upon you entering into a bond in the sum of $200 to be of good behaviour for a period of two years. You are to be under the supervision of the Department of Correctional Services and obey directions. You are to report to the Department of Correctional Services, 8 Gaelic Avenue, Holden Hill by 5 pm today. You are to undertake such programmes and projects as directed by the Community Corrections Officer, especially as relates to drug and/or alcohol addiction, gambling addiction and anger management. You are to undertake such medical, psychiatric and psychological assessment and treatment as directed by the Community Corrections Officer.
The appellant has a history of mental health problems. He has experienced psychiatric symptoms and behavioural disturbances since the age of 12 years. He has been diagnosed with a borderline personality disorder and bipolar disorder. His medical history discloses particular problems linked to times of stress and crisis. Alcohol has proved to be an exacerbating factor. A psychiatric report was placed before the magistrate. Unfortunately the report did not address the appellant’s offending or his mental condition at the time of sentencing.
The appellant had a history of offending. Most offending related to incidents of assault and disorderly behaviour. In June 2002 he received a suspended sentence of 26 months imprisonment with respect to an offence for threatening to cause harm and using a motor vehicle without consent. In November 2002 the appellant received a further suspended sentence with respect to disorderly and offensive behaviour. In August 2003 he was convicted of the offence of carrying an offensive weapon.
Counsel for the appellant submitted that the present offending was of a different character to his prior offending. It was said that the appellant was upset and depressed at having lost his employment. In that state he had gone to the hotel, gambled and become drunk. He spent his final wages. It was in these circumstances that the offending occurred. It was inevitable that his offending would be detected. The appellant has acknowledged his guilt at the earliest opportunity. Full reparation has been made. It was said that the appellant’s mental health problems explain his conduct. In the circumstances it was said that the imposition of a term of imprisonment was inappropriate and a manifestly excessive punishment.
During the course of the appeal hearing it became apparent that closer attention was needed to the appellant’s psychiatric problems. An up to date report was required. The appeal was adjourned to allow this to occur. With the consent of counsel for the Crown a further report from a psychiatrist was obtained.
The further report confirms that the appellant’s behaviour was linked to his mental health problems and in particular his state of depression at the time. The psychiatrist has recommended ongoing supervision and continuing psychiatric treatment. In times of crisis or stress it is likely that the appellant will need direct support. The appellant’s offending has generally been associated with the consumption of alcohol and it is important that the use of alcohol be avoided in the future.
The further psychiatric evidence tendered to this court allows the conclusion that the appellant has good prospects for rehabilitation. His rehabilitation will be assisted by close supervision, ongoing psychiatric treatment and abstinence from alcohol. The appellant is able to abstain from the use of alcohol and is prepared to do so.
In the circumstances good reason exists to proceed without imposing a sentence of imprisonment with respect of this offending having regard to the appellant’s personal antecedents, his mental health problems, his parental support, his pleas of guilty, his contrition and remorse and the fact that full reparation has been made. The sentence of imprisonment imposed by the magistrate should be set aside.
The appellant is released on a three year good behaviour bond to be under the supervision of a correctional services officer, to follow recommended psychiatric treatment and to abstain from the consumption of alcohol and any form of drug with the exception of prescribed drugs.