Lombard v Police - [2016] SASC 179

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
LOMBARD v POLICE
[2016] SASC 179
Judgment of The Honourable Justice Doyle
18 November 2016
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS
The appellant pleaded guilty to 30 counts of theft and was sentenced to 18 months imprisonment, with a non-parole period of six months. The Magistrate declined to suspend the sentence.
The appellant appealed against the Magistrate’s decision to not suspend the sentence of imprisonment on the grounds that the Magistrate did not give adequate weight to the victim’s attitude to the sentence and did not give sufficient weight to the negative impact that an immediate custodial sentence would have on the appellant’s family.
Held per Doyle J, dismissing the appeal:
1. No error in the exercise of the Magistrate’s discretion has been established.
R v O’Toole [2013] SASCFC 18; House v The King (1936) 55 CLR 499; R v Gannon (2009) 103 SASR 398; R v M, G [2016] SASCFC 116, considered.

LOMBARD v POLICE
[2016] SASC 179
Magistrates Appeal
DOYLE J:

The appellant pleaded guilty to 30 counts of theft. After taking into account a further 155 similar offences, the Magistrate sentenced the appellant to 18 months imprisonment (after a 40 per cent discount to reflect the appellant’s plea of guilty), and fixed a non-parole period of six months. The Magistrate declined to suspend the sentence of imprisonment imposed.
In this appeal against sentence, the appellant contends that the Magistrate erred in failing to suspend the appellant’s sentence of imprisonment.
Background
Between 28 January 2010 and 11 December 2014, while employed as the financial officer at Ocean View Children’s Centre in Taperoo (the Centre), and having sole access to the Centre’s accounting records, the appellant transferred $132,743.26 of its funds to her own bank account in 185 separate transactions. The transfers were falsely represented by the appellant as purchases in the Centre’s accounts.
The offending was detected in December 2014, whilst the appellant was on leave, by a person who was relieving in the appellant’s position and was unable to reconcile a purchase recorded in the accounts. The money obtained was spent on lifestyle expenses. The offending was precipitated by the strain of debt resulting from the appellant’s husband’s wish to maintain a current model vehicle and the trading up of vehicles regularly over preceding years.
The Magistrate’s sentencing remarks
In his sentencing remarks, the Magistrate commenced by noting the appellant’s plea of guilty to 30 charges of theft, each of which carried a maximum penalty of 10 years imprisonment. The appellant admitted a further 155 similar offences, which the Magistrate took into account under s 10(1)(b) of the Criminal Law (Sentencing) Act 1988 (SA).
The Magistrate thereafter gave relatively detailed reasons for the sentence he imposed. He summarised the circumstances of, and reasons for, the offending in terms similar to my…

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.

Continue reading Lombard v Police

Details

AGLC: Lombard v Police [2016] SASC 179
Case: [2016] SASC 179
Decision Date: 18 November 2016

CaseChat Overview and Summary

Lombard appealed against the sentence imposed by the Magistrates Court of South Australia, arguing that the Magistrate had erred in not suspending the appellant's sentence of imprisonment. The appellant had pleaded guilty to 30 counts of theft and admitted a further 155 similar offences, which the Magistrate took into account under the Criminal Law (Sentencing) Act 1988 (SA). The appellant had been the financial officer at Ocean View Children’s Centre in Taperoo and had stolen a total of $132,743.26 over a period of nearly five years. The offending was detected when a temporary employee was unable to reconcile a purchase recorded in the accounts.

The court was required to decide whether the Magistrate had erred in not suspending the appellant's sentence of imprisonment. The court had to consider the appellant's plea of guilty and admissions, her position of trust, the impact of the offending on the appellant’s family, and the appellant's good character prior to the offending. The court also had to consider the appellant's efforts to make restitution and the impact of the offending on the Centre.

The court found that the Magistrate had given detailed reasons for the sentence he imposed, taking into account all of the relevant matters. The court found that the appellant's offending was serious, involving an abuse of a position of trust. However, the court also found that the appellant had made full admissions, was cooperative with the police, and had made efforts to make restitution. The court also found that imprisonment would have an adverse effect upon the appellant's family, with her son reliant upon her for emotional support and her daughter highly reliant upon her. The court concluded that the decision not to suspend the appellant's sentence of imprisonment was not plainly unjust or unreasonable.

The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

In this appeal against sentence, the appellant contends that the Magistrate erred in failing to suspend the appellant’s sentence of imprisonment.Background Between 28 January 2010 and 11 December 2014, while employed as the financial officer at Ocean View Children’s Centre in Taperoo (the Centre), and having sole access to the Centre’s accounting records, the appellant transferred $132,743.26 of its funds to her own bank account in 185 separate transactions. The transfers were falsely represented by the appellant as purchases in the Centre’s accounts. The offending was detected in December 2014, whilst the appellant was on leave, by a person who was relieving in the appellant’s position and was unable to reconcile a purchase recorded in the accounts. The money obtained was spent on lifestyle expenses. The offending was precipitated by the strain of debt resulting from the appellant’s husband’s wish to maintain a current model vehicle and the trading up of vehicles regularly over preceding years.The Magistrate’s sentencing remarks In his sentencing remarks, the Magistrate commenced by noting the appellant’s plea of guilty to 30 charges of theft, each of which carried a maximum penalty of 10 years imprisonment. The appellant admitted a further 155 similar offences, which the Magistrate took into account under s 10(1)(b) of the Criminal Law (Sentencing) Act 1988 (SA). The Magistrate thereafter gave relatively detailed reasons for the sentence he imposed. He summarised the circumstances of, and reasons for, the offending in terms similar to my summary above. His Honour then took into account the following matters:· The appellant was 47 years of age and married, with a 16 year old son and two year old daughter.· She had no previous convictions and was previously of good character. However, the benefit of that previously good character was substantially diminished given the repeated acts of dishonesty over a long period comprised by the present offending.· The offending involved an abuse of a position of trust. This was relevant not only to the seriousness of the offending but also the importance of general deterrence.· When confronted with the discrepancies in the accounts, the appellant made full admissions, and was thereafter fully cooperative with the police.· The appellant’s employment at the Centre was terminated. However, she had managed to find further employment and was paying restitution to the Centre at the rate of $500 per month.· In addition to the stress and strain that led to the offending, the appellant had become anxious and depressed.· The previous Director of the Centre, Ms Davies, gave evidence at the sentencing hearing to the effect that the appellant had been a valued employee of the Centre, and that the current Governing Council of the Centre were supportive of her. However, there was no evidence as to the particular impact of the appellant’s thefts on the Centre, and so the Magistrate expressly declined to speculate about that.· Imprisonment would have an adverse effect upon the appellant’s family, with her son reliant upon her for emotional support and her daughter highly reliant upon her.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Taking all of the above into account, I am not satisfied that the decision not to suspend the appellant’s sentence of imprisonment was plainly unjust or unreasonable.Conclusion For the reasons set out above, I do not consider that the appellant has established any error on the part of the Magistrate. I dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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