JOHINKE v Police - [2008] SASC 28

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
JOHINKE v POLICE
[2008] SASC 28
Judgment of The Honourable Justice Kelly
15 February 2008
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS
Appeal against sentence - appellant pleaded guilty to eight counts of dishonestly dealing with documents contrary to s 140 Criminal Law Consolidation Act 1935 - magistrate imposed sentence of 2 years and 10 months imprisonment and fixed a non-parole period of 10 months - magistrate declined to suspend sentence - whether sentence manifestly excessive - whether magistrate erred in declining to suspend sentence. Held: appeal dismissed - appellant made early guilty plea and full restitution - were mitigating circumstances however fraudulent offences were very serious, involved a large amount of money and continued over a lengthy period - magistrate took all relevant factors into account and correctly found no good reason to suspend sentence - sentence not manifestly excessive.
Magistrates Court Act 1991 s 42; Criminal Law Consolidation Act 1935 s 140, referred to.
Wittwer v Police [2004] SASC 226; Police v Curtis and Marshall (2004) 145 A Crim R 587; Eldridge v Bates (1989) 51 SASR 532, applied.
Hebberman v Police [2002] SASC 267; Police v Hatty [2007] SASC 180; Workcover v Musolino [2007] SASC 249; R v Cavanagh [1999] SASC 418; Radjevic v Police (1997) 67 SASR 478; R v Davies (1996) 187 LSJS 467; McNamara v Barrett [2001] SASC 354, considered.

JOHINKE v POLICE
[2008] SASC 28
Magistrates Appeal
KELLY J
Introduction

This is an appeal, under the provisions of s 42 of the Magistrates Court Act 1991, against sentence.
The notice of appeal contains two grounds alleging that the magistrate erred in two ways, first in imposing a manifestly excessive sentence and second, in failing to suspend the term of imprisonment. At the hearing of the appeal counsel for the appellant acknowledged that the appellant’s real complaint is the magistrate’s failure to suspend the sentence. It was contended that the magistrate made a number of errors in reaching the conclusion that he was unable to suspend the sentence.
Background
The appellant pleaded guilty to eight counts of dishonestly dealing with documents contrary to s 140 Criminal Law Consolidation Act 1935. In addition to those charges the appellant requested that a further 41 offences not charged but admitted by her be taken into consideration upon sentence. The offending admitted by the appellant occurred in the period from February 2005 to February 2006. The total amount of money involved was $118,020.
The victim of the appellant’s offending was Dr Richard Power who employed the appellant as a secretary in his practice in about 1992. The appellant’s mother was also employed in Dr Power’s practice and had been since the early 1980s. Early in 2006 Dr Power was advised by his bank that there was something amiss with his bank accounts. He ordered an audit. That audit showed that in the years 2005 and 2006 the appellant wrote cheques for various amounts by forging her employer’s signature. She spent the proceeds largely on gambling and some living expenses.
On 14 November 2007 the magistrate sentenced the appellant to a period of imprisonment of 2 years and 10 months. He fixed a non-parole period of 10 months. The magistrate declined to suspend the term of imprisonment.
The Nature of the Appeal
The approach of this court on an appeal against sentence imposed by a magistrate is well established. The imposition of a sentence involves an exercise of judicial discretion. This court interferes with the exercise of that discretion only when it is satisfied that the sentencing magistrate has acted upon some wrong principle, or has allowed irrelevant considerations to influence it, or has failed to have regard to a relevant consideration or alternatively, even though no precise error can be identified, the sentence is so obviously unreasonable or unjust that it can be said that there must have been a failure to exercise the discretion properly Wittwer v Police [2004] SASC 226 per White J at 16.
Evidence Received on this Appeal
At the hearing of this appeal I received affidavits from the police prosecutor, from the appellant’s solicitor and from the appellant’s mother. Some of the affidavit material dealt with events which have occurred subsequent to the date of the sentence which was imposed by the magistrate. I shall outline that material later in these reasons.
The Magistrate’s Reasons
The magistrate’s remarks on sentence were detailed and thorough. In the course of those remarks his Honour made reference to a number of authorities in this court including Hebberman v Police [2002] SASC 267, Police v Hatty [2007] SASC 180, Police v Curtis and Marshall (2004) 145 A Crim R 587, Workcover v Musolino [2007] SASC 249, Wittwer v Police [2004] SASC 226, Radjevic v Police (1997) 67 SASR 478, R v Cavanagh [1999] SASC 418, R v Davies (1996) 187 LSJS 467, McNamara v Barrett [2001] SASC 354.
The authorities reviewed by the magistrate in the course of his sentencing remarks range from cases involving much larger sums of money and much more serious breaches of trust than involved in the appellant’s case, to cases involving smaller amounts of money and employees in a similar position to that of the appellant. In short his Honour’s review ranged over a broad spectrum of fraud related offending.
The magistrate gave careful consideration to the issue of suspension. He said:
I have considered all of the submissions Ms Hicks has made on your behalf – and I have considered carefully the medical evidence and the evidence from the counsellor and psychiatrist that is before this court. I find however that at the end of the day I cannot get over the fact that this offending was not only very serious but also continued over such a lengthy period. Each time those cheques were endorsed you did so in the knowledge you were committing a serious offence and you continued to do so until your offending was discovered.
I have taken into account the effect that a term of imprisonment is likely to have upon your children, upon your mother, upon your mother’s aunt. I have carefully considered all of these issues. It is my view you must serve the time in custody. It is a decision that I somewhat regret, but I believe I would not be in fact be giving appropriate general deterrence to the community to suspend the term – this is a very essential factor in offending of this nature and must be taken into account.
Issues on Appeal
In support of ground two of the appeal counsel for the appellant submitted that the magistrate placed too much weight on deterrence and failed to have due regard for the effect which the appellant’s incarceration would have on her two young children.
Second, it was submitted that the magistrate was wrong in taking into account the authorities which I have previously referred to which deal with serious abuses of trust by lawyers, accountants, financial advisors and the like. It was submitted that in relying on those particular authorities the magistrate failed to take into account the important distinction between those persons who occupy such powerful positions of trust like lawyers, accountants and financial advisors and offenders in the same or similar position as the appellant.
Third, it was contended that the magistrate’s remarks reveal that he believed he had no choice but to impose an immediate sentence of imprisonment. Counsel for the appellant argued that the fact that there was material which could have accounted for “good reason” to suspend was an indication in itself that the magistrate had erred in failing to suspend.
Fourth, it was contended that the magistrate had erred in failing to give proper weight to the appellant’s early plea and the fact that she had paid full restitution even before she was charged.
Analysis
At the time of sentencing the appellant was a 33 year old woman caring for two young children aged 3 and 5. There was material before the magistrate setting out in quite extensive detail the appellant’s life history and which provided some insight as to the cause of the appellant’s offending.
There was a report from a psychiatrist Dr Martha Kent dated 6 September 2007, a report from the appellant’s general medical practitioner dated 15 August 2007 and a clinical counsellor and psychotherapist Ms Noah dated 27 August 2007. It appears from that report that the appellant first sought counselling in relation to her marriage in early 2005. She did not disclose that she had a gambling addiction until May of 2006 after her offending came to light.
Nevertheless after the offending did come to light the appellant made a full confession to the police and thereafter cooperated fully with them in their investigations. The delay between the offending first coming to light and when the charges were laid appears to have been a result of the need to audit Dr Power’s accounts in order to discover the full extent of the loss.
Whilst that was occurring the appellant continued attending counselling sessions with Ms Noah. An elderly great aunt sold her property and moved into a nursing home thereby making available the sale proceeds in order for the appellant to make restitution. The appellant did make full restitution of the $118,020 defrauded from Dr Power. The appellant’s mother is the beneficiary of the elderly aunt’s estate. In that sense the appellant stands as an indirect beneficiary as both the appellant and her mother reside together and are jointly caring for the two children. All of these facts were noted by the magistrate in the course of his sentencing remarks.
In assessing the gravity of the appellant’s offending it was necessary for the magistrate to have regard to the nature of the breach of trust, the amount of money defrauded, the number of transactions, the length of time over which the offending took place and the important issue of restitution. On the topic of restitution his Honours’ remarks were detailed and thorough.
Counsel for the appellant submitted that by mentioning some of the authorities which deal with breaches of trust of a much more serious nature than in the case of the appellant the magistrate had failed to take into account the important distinction between persons who occupy powerful positions of trust and offenders like the appellant who are employees. As Gray J observed in Police v Curtis and Marshall (2004) 145 A Crim R 587 there is a significant difference in the criminal culpability of a professional advisor misusing his position of trust and an employee misusing his or her position to take advantage of an employer.
As I observed earlier in these reasons his Honour referred to a number of authorities dealing with markedly differing factual circumstances. There is no suggestion in his observations of any of those authorities that he was doing anything other than acknowledging that considerations of deterrence are very important when sentencing offenders for fraud related offending. In my view those observations were apt.
The complaint that the magistrate here failed to take into account the distinction cannot be sustained when his reasons are closely examined. His Honour noted the ease with which the appellant’s offending could be discovered and the fact that she had not employed a particularly sophisticated method. He referred to the quite compelling circumstances of mitigation in the appellant’s case.
I have mentioned the fact of the early plea and the appellant’s cooperation with the authorities, the payment of full restitution, the fact that the appellant is the carer of her two young children and the fact that she has continued to undergo counselling and treatment in relation to her gambling addiction. All of these matters were explicitly dealt with by the magistrate and there is no reason to suppose that he did not take them all into account, as he said he did.
The fact that he imposed a merciful head sentence and non-parole period is itself an indication that the magistrate took all relevant mitigating factors into account. I do not regard the fact that in the course of his remarks the magistrate acknowledged that there are a number of Supreme Court authorities binding on him which demonstrate the seriousness with which the court regards fraud related offending, particularly where it involves an element of breach of trust, as any indication that the magistrate failed to properly exercise the discretion reposed in him.
On the contrary, I conclude that the magistrate’s remarks demonstrate that he was concerned to weigh up all relevant factors before arriving at the decision that it was not appropriate to suspend the term of imprisonment. That decision was open to him.
There was material in some of the affidavits filed and received at the hearing of this appeal which referred to events which have occurred since the date of the magistrate’s sentence on 14 November 2007. On 11 January 2008 the appellant’s elderly aunt died.
In addition, the appellant’s former husband and the father of the two children has filed an application in the Family Court of Australia seeking custody of the two children. That application was obviously prompted by the appellant’s impending incarceration.
The appellant’s counsellor Ms Noah filed a further report in which she has expressed significant concerns as to the appellant’s capacity to manage a prison sentence. In Ms Noah’s view incarceration will be extremely detrimental to the appellant’s emotional and physical health and separation from her mother and children will result in even deeper depression.
Counsel for the appellant submitted that all of these matters reinforce the appellant’s submission that the magistrate simply disregarded the effect of the appellant’s incarceration on her two young children, or in the alternative simply placed insufficient weight upon that factor. It was further submitted that if the father’s application for custody of the children is successful that will result in further trauma to the children who have been in the care of their mother for the whole of their lives.
While to some extent all of these matters may well be true I cannot accept the submission that the magistrate disregarded these consequences. Indeed it might be accepted that any sentencing judicial officer is well aware that the prospect of an immediate term of imprisonment is likely to have a deleterious effect on a person’s psychological health.
The father’s application for custody of the two children was not a matter about which the magistrate could have been aware at the date of sentence. Nevertheless, I consider it unlikely that this fact would have had any effect on the magistrate’s discretion. This is particularly so in the light of the fact that the new material reveals that the father and his extended family are all capable and willing to share in the care of the two children.
So while it may be accepted that separation from their mother for the period of her incarceration is not ideal, the material points to the fact that the two children will be well cared for by their father and his family.
It is for these reasons that I do not believe that any of the material which could be described as fresh material, would have resulted in the magistrate reaching a different conclusion on the issue of suspension.
Conclusion
While it is unfortunate that a mother of two young children developed a gambling addiction which led her to commit serious offences I have reached the conclusion that this appeal should be dismissed. The magistrate imposed a merciful head sentence and non-parole period, no doubt, in light of the quite compelling circumstances of mitigation.
Although I acknowledge that the words of King CJ in Eldridge v Bates (1989) 51 SASR 532 were made in a different context, his words have particular force in the context of this case and I respectfully adopt them:
It is evident from a perusal of the learned magistrate’s reasons that he conscientiously and carefully weighed up all considerations which were relevant in arriving at his decision. There is no indication of any error of law or fact. The learned magistrate recognised his responsibility and discharged his duty with wisdom and firmness, painful though the performance of that duty undoubtedly was. It is necessary in the interests of the community that other magistrates perform this painful duty in like cases and it is the duty of this court to stand firmly behind them in the discharge of that duty.
For these reasons the appeal is dismissed.