King v Scott

[2010] WASC 126

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   KING -v- SCOTT [2010] WASC 126

CORAM:   McKECHNIE J

HEARD:   27 MAY 2010

DELIVERED          :   27 MAY 2010

FILE NO/S:   SJA 1013 of 2010

BETWEEN:   GLENN AVON KING

Appellant

AND

ERIC WILLIAM SCOTT
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE P M HEANEY

File No  :PE 60421 of 2009, PE 60422 of 2009, PE 60423 of 2009, PE 60424 of 2009, PE 60429 of 2009, PE 60430 of 2009, PE 60431 of 2009, PE 60432 of 2009, PE 60433 of 2009, PE 60434 of 2009, PE 60435 of 2009, PE 60436 of 2009, PE 60437 of 2009, PE 60438 of 2009, PE 60439 of 2009

Catchwords:

Criminal law and procedure - Sentence - Fraud offences committed to gain teaching appointment - Whether suspended imprisonment open

Legislation:

Sentencing Act 1995 (WA)

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Ms S H Linton

Respondent:     Mr A E Monisse

Solicitors:

Appellant:     Director of Public Prosecutions (WA)

Respondent:     Richard Warner

Case(s) referred to in judgment(s):

Nil

1. McKECHNIE J:  Mr Scott always wanted to be a teacher.  However, over the years he has been convicted of sexual matters involving children and dismissed from the Education Department.  Now there are strict controls to prevent people like Mr Scott working with children.  To overcome these controls he forged various documents, including tertiary qualifications and a statement of academic record.  He did so using his birth name, not the name he had used for years and under which the qualifications were awarded.  He hoped that if he used another name, he would be employed as a teacher.

2. In this he was successful for a short time.  But a detective from the sex offender management squad was soon onto him.  The result was that on 18 January 2010 he pleaded guilty to a series of forging, uttering and fraud offences.  The magistrate thought these were very serious offences, coupled with Mr Scott's previous convictions for attempting to defraud and perverting the course of justice.  The magistrate decided the only appropriate penalty was concurrent sentences of 12 months' imprisonment.

3. As he was required to do, the magistrate considered whether the sentence should be suspended, concluding that suspension of the sentence for the longest possible period - 2 years - was appropriate.  The prosecution believes that the sentence was too light.  Immediate imprisonment should have been imposed.  It says that the magistrate's overly favourable assessment of Mr Scott's criminality, together with an over emphasis on his personal circumstances, led him to the erroneous conclusion that a suspended term of imprisonment was appropriate, when clearly it was not. 

4. It is not so clear to me.  Sentencing is an exercise of judicial discretion and there is a presumption in favour of the correctness of the sentence.  Of course that presumption can be displaced if there is an obvious error.  The obvious error might on occasion include the result if it is manifestly inadequate or excessive.  Even though there are a number of offences, here they are all offences with one essential aim; that is, to regain employment as a teacher.  The frauds reflect the essential criminality and the forging and utterings were means to that end.  The magistrate did not substantially misunderstand the seriousness of the offences.  He said they were very serious.  He reflected this view with a substantial prison term.

5. But there were also other matters to be taken into account.  These were raised by Mr Scott's counsel.  The magistrate had a report from a clinical psychologist.  Mr Scott's life has been marked by the tragic deaths of those close to him from his early years through to the loss of friends in the Victorian bushfires. He has been treated for severe depression.  There is no possibility that he will ever work in teaching again.  He pleaded guilty.  These were all matters which the magistrate was obliged to take into account.

6. Of course some offences are so serious that only an immediate term of imprisonment is appropriate.  The background of some offenders is so serious that only an immediate term of imprisonment is appropriate.  However, there are many offences, and offenders, where a choice must be made between immediate imprisonment and suspension of that term.

7. A term of imprisonment, albeit suspended, is a real and substantial punishment provided under the Sentencing Act 1995 (WA). Either choice may not be wrong. This is one of those cases. The prosecution has not established any error in the exercise of the discretion to suspend the term of imprisonment and the appeal must be dismissed.