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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] SASC 28
Decision Date: 15 February 2008

CaseChat Overview and Summary

In the matter of Johinke v Police, the appellant contested the sentence imposed by the magistrate, arguing that it was manifestly excessive and that the magistrate erred in declining to suspend the term of imprisonment. The appellant had pleaded guilty to eight counts of dishonestly dealing with documents under section 140 of the Criminal Law Consolidation Act 1935, with additional admitted offences amounting to a total of $118,020. The offending spanned from February 2005 to February 2006, involving forged cheques written to the appellant's employer, Dr Richard Power. The magistrate sentenced the appellant to 2 years and 10 months imprisonment, with a non-parole period of 10 months, and declined to suspend the sentence.

The appeal court reviewed the sentencing principles, noting that it interferes with the magistrate's discretion only if there is an error in principle, irrelevant considerations, or a failure to consider relevant factors, or if the sentence is manifestly excessive. The court received affidavits from the police prosecutor, the appellant’s solicitor, and the appellant’s mother, some of which pertained to events post-sentencing. The magistrate’s sentencing remarks were comprehensive, referencing various precedents to justify the sentence. Despite the appellant’s early guilty plea and full restitution, the magistrate found the offences very serious, involving a substantial amount of money and continuing over a significant period, leading to the decision not to suspend the sentence.

The appeal court found that the magistrate had carefully considered all relevant factors, including the appellant's early guilty plea, full restitution, and personal circumstances. The court held that the magistrate's decision not to suspend the sentence was justified given the seriousness and duration of the offending. The appeal was dismissed, affirming the magistrate's exercise of discretion and the sentence imposed.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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