KETOGLOU v Police - [2008] SASC 243

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
KETOGLOU v POLICE
[2008] SASC 243
Judgment of The Honourable Justice White
5 September 2008
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appellant sentenced to 12 months’ imprisonment, to be released after serving 4 months on entering into a recognizance, for four offences against s 135.2(1) of the Criminal Code (Cth) (the federal sentence) – two previous suspended sentence bonds imposed for offences against South Australian laws revoked and appellant ordered to serve the sentences of imprisonment imposed for those offences (the state offences) - magistrate structured the commencement of each sentence so as to provide partial concurrency - whether the federal sentence was manifestly excessive – whether the federal sentence should have been suspended - whether the magistrate erred in revoking the suspended sentence bonds – whether the magistrate erred in failing to find special circumstances existed to suspend or reduce the terms of imprisonment imposed for the state offences - whether the magistrate should have ordered all three sentences to be served concurrently - whether a breach of a bond operates by itself to terminate the bond – whether an application to enforce a bond operates to terminate the bond.
Held: appeal dismissed - the magistrate did not err when sentencing the appellant - a bond is not terminated by a breach of the bond or by an application for its enforcement - a bond may be terminated only by its expiration, by its own terms or by an order of the court.
Criminal Code (Cth) s 135.2; Crimes Act 1914 (Cth) s 4K, s 20; Criminal Law (Sentencing) Act 1988 (SA) s 3, s 38, s 57, s 58; Offenders Probation Act 1913 (SA) s 9, referred to.
Fischer v Chambers (1972) 4 SASR 105; Commonwealth Director of Public Prosecutions v Cole (2005) 91 SASR 480; R v Buckman (1988) 47 SASR 303; R v Marston (1993) 60 SASR 320; Marshall v Police [1999] SASC 379; R v Dorning (1981) 27 SASR 481; Kovacevic v Mills (2000) 76 SASR 404, applied.

KETOGLOU v POLICE
[2008] SASC 243
Magistrates Appeal

WHITE J: This is an appeal against three sentencing orders made by a magistrate. One aspect of the appeal was inaptly described as an appeal against conviction.
The appellant pleaded guilty to four offences of obtaining a financial advantage from Centrelink knowing that she was not eligible to receive that financial advantage, contrary to s 135.2(1) of the Criminal Code (Cth) (“the federal offences”). Those offences were committed on 20 February 2006, between 6 March 2006 and 26 June 2006, on 7 August 2006 and on 18 September 2006. In four separate applications for payment of the Newstart allowance, the appellant did not tell Centrelink of the income, or at least the whole of the income, which she had earned. As a result, the appellant obtained $4,379.33 in benefits to which she was not entitled.
After allowing for the appellant’s pleas of guilty, the magistrate imposed a single sentence of imprisonment for 12 months. Because of the orders which the magistrate made on two applications for the enforcement of a bond (to which reference will be made shortly) the magistrate ordered that the sentence of 12 months imprisonment commence on 1 September 2008. Acting under s 20(1)(b) of the Crimes Act 1914 (Cth), the magistrate ordered that the appellant be released after serving four months of the sentence of 12 months, upon her entering into a recognizance containing specified conditions.
At the same time, the magistrate dealt with two applications by the South Australian Police under s 57 of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA) arising from the failure of the appellant to comply with the terms of two bonds entered into on 21 September 2005. One of those bonds had been extended by an order of the Magistrates Court made on 17 August 2006. The circumstances of those bonds will be described shortly.
The magistrate made orders revoking these two bonds. That meant that the appellant then had to serve two sentences of imprisonment which had previously been imposed on her, one for three months and one for 13 months with a non‑parole period of six months. The magistrate ordered that the sentence of three months be taken to have commenced on 17 March 2008 (being the date upon which the appellant had been remanded in custody) and the sentence of 13 months commence as from the day of the magistrate’s order (2 April 2008). The effect of those orders was to provide for a substantial degree of concurrency of the two sentences. Further, as the sentence imposed for the federal offences was ordered to commence on 1 September 2008, it too will have some concurrency with the sentence of 13 months which commenced on 2 April 2008.
The effect of the magistrate’s orders is that the appellant will not become eligible for release from custody until 1 January 2009. Although the appellant had acknowledged the breaches of the bonds before the magistrate, she now contends that that acknowledgement resulted from a mistaken belief that the two bonds were in force at the time she committed the federal offences. Accordingly, she seeks to have set aside the orders which the magistrate made revoking those bonds and the consequential orders.
The appellant submits that the sentence of imprisonment imposed by the magistrate for the federal offences was manifestly excessive and that she should not, in any event, have been ordered to serve the sentences which had previously been suspended. Alternatively, the appellant submits that any sentence imposed for the federal offences should have been fully suspended. In the further alternative, the appellant submits that the magistrate should have ordered all the sentences of imprisonment to be served concurrently.
Offending History
The appellant has a history of offences of dishonesty.
On 22 March 2003 the appellant committed the offence of larceny by a servant thereby obtaining $6,690. On 21 November 2003 a magistrate sentenced her to imprisonment for three months for that offence but suspended that sentence upon her entering into a bond to be of good behaviour for a period of 12 months.
On 21 September 2005 the appellant was sentenced in the Adelaide Magistrates Court for 17 offences of dishonesty. Three of those offences (two offences of false pretences and one of attempted false pretences) had been committed in 2003 before the appellant was sentenced for the offence of larceny by a servant on 21 November 2003. The remaining offences comprised 13 offences of theft and one of unlawful possession. Those offences were committed in the period from 7 February 2004 to 22 November 2004. All but one were committed whilst the appellant was subject to the bond to be of good behaviour into which she had entered on 21 November 2003.
Before being sentenced for these seventeen offences the appellant participated in the Magistrates Court Drug Diversion Program. This related to her heroin addiction. For the 17 offences the magistrate imposed a single sentence of 13 months imprisonment with a non-parole period of six months. The magistrate suspended that sentence upon the appellant entering into a bond to be of good behaviour for a period of 18 months and undertaking to perform 240 hours of community service.
At the same time, the magistrate dealt with the appellant’s breaches of the bond into which she had entered on 21 November 2003. It is not altogether clear but it seems that the prosecution relied upon at least some of the offences committed between 7 February 2004 and 22 November 2004 as constituting the breaches. The magistrate made an order under s 58(3)(b)(ii) of the CLSA requiring the appellant to enter into a further bond to be of good behaviour for a period of 12 months.
The appellant entered into both bonds. The effect therefore was that the appellant was then subject to two bonds to be of good behaviour, one for a period of 12 months to expire on 21 September 2006 and one for a period of 18 months to expire on 21 March 2007.
The appellant appeared in the Magistrates Court again on 17 August 2006 on a charge of theft. That offence had been committed on 30 July 2004 (ie, prior to the court appearance on 21 September 2005). The appellant was discharged without further penalty. In addition the magistrate (Mr Field SM) dealt with an application for the enforcement of the 18-month bond into which the appellant had entered on 21 September 2005. The appellant had breached that bond by not reporting to the Department of Correctional Services and by not completing the 240 hours of community service within the stipulated period. Having regard to the employment in which the appellant was engaged, Mr Field SM excused the breach, extended the period of the bond from 18 months to two years, and reduced the required hours of community service from 240 hours to 40. The records show that Mr Field SM ordered the two year bond to commence from 25 September 2005, and not 21 September 2005, but nothing turns presently on that discrepancy.
The effect then was that the appellant was still subject to two bonds: the 12 month bond which was to expire on 21 September 2006 and the two year bond which would expire on 21 September 2007.
The appellant admitted before the magistrate that her commission of the federal offences in the period from 20 February 2006 to 18 September 2006 constituted a breach of each of these bonds. It is noteworthy that the appellant commenced breaching both bonds by the commission of the offences five months after entering into them, and that the last of the federal offences was committed one month after her court appearance on 17 August 2006.
In summary, in the period from March 2003 to September 2006, the appellant committed 23 offences of dishonesty. Prior to the commission of the federal offences, she had been before the Magistrates Court on three separate occasions for those offences. The appellant has had, in effect, three suspended sentence bonds (but one is a further bond entered because of a breach of the first). The length of one bond has been extended because of a failure by the appellant to comply with its reporting and community service requirements. On two previous occasions, the appellant has faced applications for the enforcement of bonds which had been breached by the commission of offences.
Were the Two Bonds in Force in 2006?
As noted earlier, on 17 August 2006 Mr Field SM dealt with an application for the enforcement of the 18 month bond into which the appellant had entered on 21 September 2005. That application had been filed on 21 February 2006. When the appellant did not attend on the first return date of this application, a summons to compel her attendance was issued. Mr Field SM’s orders of 17 August 2006 were made on that summons.
When the present appeal was first listed for hearing, Ms O’Connor, who then appeared for the appellant, contended that a breach of a bond operates by itself to terminate the bond. Ms O’Connor submitted, in the alternative, that the application by the Police which was filed on 21 February 2006 had the effect of terminating the bond which was the subject of the application. That being so, the submission was that the 18 month bond entered into on 21 September 2005 was not in force and could not have been breached by the commission of the federal offences in 2006.
This aspect of the appeal was described in the Amended Notice of Appeal (inaptly in my opinion) as an appeal against “conviction”. The hearing of the appeal was adjourned, and its determination delayed, so that Ms O’Connor could develop further her submissions on this point.
When the hearing of the appeal resumed, Ms McCrohan appeared for the appellant. Ms McCrohan submitted that the effect of the filing of the application for enforcement of the bond on 21 February 2006 was to make the bond “voidable” so that compliance with it was no longer required, at least until the application had been determined by the Court.
Ms McCrohan referred to two matters in support of this submission. First she said that an application under s 57 of the CLSA for a defendant to be dealt with for the breach of a bond was analogous to an application to a court following a breach of a common law contract. Secondly, she submitted that, in practice, officers of the Department of Correctional Services cease to take steps to implement a bond, by supervision or otherwise, once an application for its enforcement has been made.
I note at the outset that even if the submission about the effect of an application to a court for enforcement of the bond were upheld, it would be of limited utility to the present appellant. It would not effect the continued operation of the 12 month bond into which the appellant had also entered on 21 September 2005 as no application for its enforcement was made in 2006. Further, the federal offences committed on 20 February 2006 and on 18 September 2006 would still constitute breaches of the 18 month bond because the first was committed before the application for enforcement was made, and the latter after the application had been dealt with on 17 August 2006.
But, in my opinion, the submission faces more fundamental difficulties than these. Section 38(1) of the CLSA provides that a court may, if it thinks that good reason exists for doing so, suspend a sentence of imprisonment on condition that the defendant enter into a bond to be of good behaviour and to comply with any other conditions stipulated in the bond. A suspended sentence bond is an agreement. The word “bond” is defined in s 3(1) of the CLSA to mean:
"bond" means an agreement (not being a bail agreement) entered into pursuant to the sentence of a court under which the defendant undertakes to the Crown to comply with the conditions of the agreement (Emphasis added)
Defendants who enter into a bond undertake to comply with the conditions of an agreement.[1] The status of a bond as an agreement has certain consequences. A bond entered into by a person who lacks capacity, or who is subject to duress, or the validity of which is affected in some other way, may be set aside by a court in a similar way to that by which a court may declare a common law contract to be void or of no effect.[2] However, a valid bond may be terminated only according to its own terms,[3] or in accordance with the applicable statutory provisions. In this respect ss 57 and 58 of the CLSA are relevant.
[1] Fischer v Chambers (1972) 4 SASR 105 at 110-11.
[2] Ibid at 110. See also Commonwealth Director of Public Prosecutions v Cole [2005] SASC 188 at [14]-[16]; (2005) 91 SASR 480 at 483-4.
[3] Fischer v Chambers (1972) 4 SASR 105 at 110.
Section 57(1) provides that a probative court (in this case the Magistrates Court) may, if satisfied that a probationer has breached a bond, summons that person to appear before it. The court may then hear any evidence adduced by the prosecution tending to establish that the probationer has breached the bond and any evidence or representations that the probationer puts forward in reply. Section 58 contains the powers and obligations of a court when satisfied that a probationer has breached a bond.
(1)Where the court is satisfied that the probationer has failed to comply with a condition of the bond, the court—
(a)     may, if the bond requires the probationer to pay a sum in the event of non-compliance with a condition of the bond, order that the probationer pay the whole or a part of that sum;
(b)     may order a guarantor to pay the whole or a part of the amount due under the guarantee;
(c)     may, if the probationer has not been sentenced for the original offence and the terms of the bond require the defendant to appear before the court for sentencing in the event of failure to comply with a condition of the bond—
(i)sentence the probationer for the offence, or convict and sentence the probationer for the offence, as the case may require; or
(ii)if the court is satisfied that the failure of the probationer to comply with the conditions of the bond was trivial or that there are proper grounds upon which the failure should be excused, refrain from taking any action in respect of the failure;
(d)     if the probationer has been sentenced to imprisonment for the original offence and that sentence has been suspended—must, subject to subsection (3), revoke the suspension and order that the sentence be carried into effect.
…
(3)Where a probationer is subject to a suspended sentence of imprisonment and the court is satisfied that the failure of the probationer to comply with the conditions of the bond was trivial or that there are proper grounds upon which the failure should be excused, the court—
(a)     may refrain from revoking the suspension; and
(b)     may—
(i) —
(A)extend the term of the bond by such period, not exceeding one year, as the court thinks fit; or
(B)in the case of a bond requiring performance of community service, extend, by not more than six months, the period within which any remaining hours of community service must be performed; or
(C)     cancel the whole or a number of any unperformed hours of community service; or
(D)     revoke or vary any other condition of the bond; or
(ii)if the bond has expired, require the probationer to enter into a further bond, the term of which must not exceed one year.
(4)     Where a court revokes the suspension of a sentence of imprisonment, the court—
(a)     may, if it considers that there are special circumstances justifying it in so doing, reduce the term of the suspended sentence;
(b)     may direct that time spent by the probationer in custody pending determination of the proceedings for breach of condition be counted as part of the term of the suspended sentence;
(ba)   may, in the case of a bond with a home detention condition, direct that the period of compliance by the probationer with that condition be counted as part of the term of the suspended sentence;
(c)     may direct that the suspended sentence be cumulative upon any other sentence, or sentences, of imprisonment then being served, or to be served, by the probationer.
It can be seen that s 58(1) vests the Court with a variety of powers, including that of requiring the probationer to pay the sum of money by which the bond was secured (s 58(1)(a)). If the bond is a suspended sentence bond, the Court must, subject to subs (3), revoke the suspension and order that the sentence be carried into effect. Subsection (3) grants the court a power, in specified circumstances, to refrain from revoking the suspension, and to make other orders. Importantly for present purposes, the Court may make orders which are contingent upon the original bond having a continued operation. So, for example, the Court may simply excuse the breach altogether and, apart from refraining from revoking the suspension, decline to make any other order (s 58(3)(a)). Alternatively, the Court may extend the term of the bond or cancel or vary a condition of the bond (s 58(3)(b)). The existence of these powers is quite inconsistent with an application by the prosecution for the probationer to be dealt with for a breach of the bond having the effect, by itself, of terminating the bond or of excusing the probationer from the need to comply with the bond.
Further, it is only the Court, and not the prosecuting authorities or the Department of Correctional Services, which may exercise these powers. Neither a prosecuting authority nor the Department of Correctional Services is empowered, by either ss 57 or 58 to terminate a bond, to vary its terms or to waive the obligations to which the probationer agreed in the bond. Hence, the attitude of the Department of Correctional Services once a breach has occurred or once an application for the enforcement of the bond has been filed, to which Ms McCrohan referred, cannot have any effect at all upon the regime established by ss 57 and 58.

Neither Ms O’Connor nor Ms McCrohan pointed to any provision within ss 57 or 58 which indicated that the making of an application for the enforcement of a bond had the effect for which they submitted.
Accordingly, my conclusion is that neither the appellant’s breach of the bond nor the application of 21 February 2006 had any effect at all on the continuance of the bond (initially for 18 months but extended to two years) into which she had entered on 21 September 2005. That bond was in force on each of the dates on which the appellant committed the federal offences. The appellant should not be permitted to withdraw her admissions that each of the federal offences constituted a breach of the bond. The so-called appeal against “conviction” should be dismissed.
The Revocation of the Suspensions
The appellant submitted that the magistrate erred in revoking the suspension of the three month sentence of imprisonment imposed on 21 November 2003 and the 13 month sentence of imprisonment imposed on 21 September 2005. In particular, it was submitted that the magistrate had overlooked the significant steps made by the appellant towards her own rehabilitation. These included the participation by the appellant in the Magistrates Court Drug Diversion Program in the latter part of 2004 and early 2005, the steps taken by her to overcome a heroin addiction, the fact that she had ceased using heroin, and her participation as a member of the regular workforce. The appellant had the support of her partner and was, prior to going into custody, living in stable domestic circumstances. Further, she and her partner had established a small business to which she was committed. Further again, she and her partner had moved addresses so as to avoid contact with former associates in the drug world. There is no suggestion of any further offending since September 2006.
It was also submitted that the magistrate had misunderstood the circumstances which gave rise to the application for the enforcement of the bond made on 21 February 2006. I will return to this aspect later.
Section 58(3) and (4) of the CLSA repeat the language used in s 9(5) and (6) of the Offenders Probation Act 1913 (SA) (OPA). The authorities concerning those provisions are therefore pertinent to s 58.
In R v Buckman,[4] King CJ said that s 9 of the OPA evidenced a clear legislative policy that in general, a breach of a condition of a recognizance upon which a sentence has been suspended should result in the offender serving the sentence which was suspended. King CJ considered that a court ought not lightly interfere with that ordinary consequence.[5] Nevertheless, s 58(3) empowers the Court to excuse a breach if satisfied that the breach was trivial or that there are “proper grounds” upon which it should be excused. Even when a court does not consider that the breach may be excused, it may, in “special circumstances” reduce the term of a suspended sentence. Proper grounds for excusing the breach are to be found having regard to the nature of the breach and the circumstances in which it was committed.[6] On the other hand, “special circumstances” for the purpose of s 58(4)(a) must usually be found in the offender’s personal circumstances. Regard may be had, for example, to a significant change in the offender’s circumstances since the sentence of imprisonment was imposed.
[4] (1988) 47 SASR 303.
[5] Ibid at 304.
[6] R v Buckman (1988) 47 SASR 303 at [307] per Jacobs J.
A similar approach was taken in R v Marston[7] and in Marshall v Police.[8]
[7] (1993) 60 SASR 320.
[8] [1999] SASC 379
In the present case the federal offences committed by the appellant were offences of dishonesty. They were of the same general character as the offences for which the appellant had previously been sentenced. Further, they were offences of a serious kind. I do not think that it can reasonably be said that a revocation of the suspended sentences is disproportionate to the nature and severity of the offences comprising the breach of the bonds. Further again, the appellant’s conduct was both planned and persistent. It is troubling that the appellant committed the first of the federal offences so soon after entering into the bonds on 21 September 2005 and that she committed the last of the federal offences so soon after the extension of the 18 month bond which occurred on 17 August 2006.
The magistrate took an adverse view of the appellant’s non-compliance with previous bonds. In relation to the appellant’s failure to comply with the 18 month bond entered into on 21 September 2005, the magistrate said:
It seems to me that once you had signed the bond [on 21 September 2005] instead of reporting, as you were required and directed to do, you just left and made no contact with Correctional Services at all. This is an indication that your response to the Court giving you yet another opportunity to rehabilitate was very poorly handled by you.
On appeal, the appellant contended that this view of the matter by the magistrate was incorrect. She asked the Court to receive as fresh evidence her own affidavit in which she deposed to having been uncertain that she was bound by two bonds, and to some confusion as to which of two offices of the Department of Correctional Services was responsible for the supervision of her bonds. In the same affidavit, the appellant proffered a critique of other aspects of the magistrate’s reasons. I indicated that I would receive the appellant’s affidavit de bene esse and rule on its admissibility later.
In my opinion, the appellant’s affidavit should not be received. It does not satisfy the threefold test for admissibility of such evidence on appeal outlined in R v Dorning,[9] namely, it has not been shown that the evidence could not have been obtained with reasonable diligence for use before the magistrate; that the evidence is such that if given, it would probably have had an important influence on the result of the case and, thirdly, that the evidence is apparently credible. In the first place, the evidence was available to be put before the magistrate. It is not evidence which has only recently come into existence, or which has only just been discovered. No explanation for the material not having been put before the magistrate has been provided. There was an opportunity to do so, both during the original sentencing submissions and later, as the magistrate paused part way through his sentencing remarks (and after making the statement which is said to indicate error), to enquire whether his understanding of the appellant’s breaches of bonds was correct. It does not seem that any objection was taken then to the magistrate’s understanding of the matter.
[9] (1981) 27 SASR 481 at 485-486
Further, an affidavit from a Correctional Services Officer seems to confirm, rather than contradict, that there were inadequacies in the appellant’s compliance with the bond entered into on 21 September 2005. The affidavit indicates, for example, that the appellant failed to honour the reporting arrangements required of her on numerous occasions.
Following the completion of the hearing, I requested that a stenograph tape of Mr Field SM’s remarks of 17 August 2006 should be transcribed. A copy of the transcription was provided to the parties and they were invited to make written submissions concerning it.
Mr Field SM’s remarks of 17 August 2006 indicate that he excused the appellant’s breach of the condition that she perform 240 hours of community service because of the difficulties which the appellant had in carrying out such service while in paid employment of 30 hours per week and also because there had been no further offending. (Mr Field SM was obviously unaware that, at that time, the appellant had already committed three of the four federal offences, which are the subject of the present appeal). The sentencing remarks of Mr Field SM do not provide any support for the appellant’s present claim that she was unaware that she was subject to obligations under two bonds.
In all these circumstances, I am not satisfied that it has been shown that, even with reasonable diligence, the evidence could not have been obtained for presentation to the magistrate, and I am not satisfied that the proposed evidence is sufficiently cogent so that, if given, it would probably have had an important influence on the result of the case. For these reasons, I decline to receive the affidavit of the appellant and I also decline to admit the affidavit of the Correctional Services Officer upon which the State DPP relied in answer to that evidence.
I am not satisfied that it can reasonably be held that the magistrate erred in failing to find that there were proper grounds upon which the appellant’s breaches could be excused.
Absence of Special Circumstances
Ms McCrohan submitted that the magistrate had erred in failing to find that there were special circumstances for the purposes of s 58(4)(a) which would have justified a reduction in the term of the suspended sentence. Such “special circumstances” must usually be found in the offender’s personal circumstances.
Ms McCrohan emphasised the same matters to which inference has already been made. Almost all of these matters were discussed in a detailed pre-sentence report provided to the magistrate. In addition, Mr Fugler, the psychologist, provided a detailed report about the appellant’s circumstances. Both the pre‑sentence report and Dr Fugler’s report provide support for the appellant’s submission that she has, despite a difficult past, been making good progress towards a successful rehabilitation.
The magistrate did not overlook these matters. He said expressly that he had regard to the contents of both reports and that he had read them several times. There are numerous indications of the magistrate’s detailed consideration of these matters. The magistrate also took into account other features such as the duration of the offending, the systematic nature of the offending, the fact that the appellant was not a first offender and the fact that she had had suspended sentences in the past. These formed part of the overall circumstances which had to be considered by him.
When one considers all these matters, it cannot be said in my opinion that the magistrate should have found the existence of special circumstances warranting a reduction of the sentences previously imposed on the appellant. In my opinion, that part of the appeal which concerns the breaches of the bonds should be dismissed.
The Sentence for the Federal Offences
The maximum penalty for each of the federal offences was imprisonment for 12 months.[10]
[10] Criminal Code (Cth) s 135.2(1)
The magistrate imposed a single sentence for the four federal offences.[11] He said that, but for the appellant’s pleas of guilty and expressions of contrition, he would have imposed a sentence of imprisonment of 16 months. However, on account of her pleas of guilty and contrition, he reduced that starting point to 12 months. As noted earlier, the magistrate ordered that the appellant be released on a recognisance after she had served four months of that 12 month sentence and, further, ordered that the appellant commence service of the sentence on 1 September 2008.
[11] Crimes Act 1914 (Cth) s 4K(4).
The appellant submitted that this sentence was manifestly excessive. In addition to relying on the matters already mentioned, the appellant referred to difficulties in her upbringing, a sexual assault on her as a child, and psychological difficulties which she had experienced in the past for which further treatment has been recommended.
Deterrence of the appellant and of others was an important consideration in the magistrate’s sentencing discretion. It was not, of course, the only consideration, but it was important. So much is plain from the decision of the Full Court in Kovacevic v Mills[12]
In our opinion King CJ was right to emphasise in Cameron the responsibility of the courts to protect the integrity of the social security system, and the need for a firm approach to offences involving sustained and deliberate fraud. In particular, the Court must do what it can to deter such offending. Offences of the type in question are common. The fact that such offending occurs over a longish period of time demonstrates that the offending is calculated, or at least not committed on the spur of the moment. And it is true that sustained fraud against the social security system tends to undermine it, and because of its widespread and insidious nature, to impose substantial costs upon the community.
…
We agree that in cases of deliberate and sustained fraud, deterrence must loom large in determining the appropriate sentence. But other matters, especially rehabilitation, must still be considered.[13]
[12] [2000] SASC 106; (2000) 76 SASR 404.
[13] Ibid at [37] – [39]; 411.
The appellant’s offending was of a kind commonly seen. It was committed over a long period and did involve a fraud on the social security system. The fact that the offending occurred while the appellant was subject to bonds is particularly aggravating. There is the further consideration that some of the offending occurred shortly before the appellant was to appear before Mr Field SM, to be dealt with for the breach of the 18-month bond, and that the last of the offending was only one month after her appearance before Mr Field SM. In addition, the appellant’s history of offences of dishonesty in the recent past was a significant factor.
When regard is had to these matters, I do not consider that it can be said that the magistrate’s starting point of 16 months was unduly severe. The reduction to 12 months on account of the appellant’s pleas of guilty was appropriate. I am not persuaded that the magistrate erred in directing that the appellant serve four months in custody for the federal offences before becoming eligible for release under the recognisance release order. In particular, I do not consider that it can be said that the magistrate erred in not suspending the whole of the sentence. Even if the period of four months could be regarded as high, its effect has been mitigated by the magistrate’s direction that service of the 12 month sentence commence on 1 September 2008. That provided in effect concurrency of one month between the sentence of six months imprisonment and the magistrate’s sentence for the federal offences. The appellant will therefore serve only three additional months in custody before becoming eligible for release under the recognisance release order.
In summary, I am not satisfied that the sentence imposed by the magistrate for the federal offences is so severe that this court should intervene.
Conclusion
For the reasons given above, all aspects of the appeal are dismissed.