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 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.
The Magistrate concluded that the gravity of the offending required a sentence of imprisonment. From a notional starting point of two years six months imprisonment, his Honour reduced this by 40 per cent to 18 months imprisonment to reflect the appellant’s plea of guilty.
The Magistrate fixed a low non-parole period of six months. In support of this, his Honour referred to the report from Dr Hamilton, a psychologist, in which he expressed the view that the appellant had insight into her offending, and was now better equipped to deal with stress and strain in the future such that she had good prospects for rehabilitation.
Finally, the Magistrate turned to the question of whether there was good reason to suspend the appellant’s sentence of imprisonment. His Honour remarked:
Your counsel has referred to a number of matters as providing a good reason. He has referred to the remorse that you have expressed, which I fully accept. … He has referred to the fact that you have repaid some money in restitution and plan to continue paying money and that plan, according to counsel, is an important part of your rehabilitation programme. The final matter that he referred to was the effect on your children of an immediate sentence of imprisonment.
After referring to some authorities from this Court that provided some general guidance on the issue of suspension in cases involving multiple counts of theft, the Magistrate added:
In considering [whether there is good reason to suspend] I accept that imprisonment will cause hardship and suffering for your family but I am not convinced that that hardship would be exceptional. I recognise that you have suffered depression and anxiety and that condition has improved through counselling and I accept your psychologist’s view that a sentence of imprisonment could cause your mental condition to regress.
I have had regard to the restitution that you made, which is significant in your circumstances, and your plan to continue to make restitution. It is important when it comes to sentencing to encourage restitution.
…
In conclusion I have formed the view that none of the matters raised comprise good reason to suspend that sentence having regard to the repeated offending over a lengthy period of time, involving a substantial sum of money in breach of trust which comprises the offending before the court.
The appeal
The appellant makes no complaint about the head sentence or the non-parole period imposed by the Magistrate. However, in her notice of appeal, the appellant contends that the Magistrate erred in not suspending the sentence of imprisonment, and in particular:
1. erred in not giving adequate weight to the evidence of Ms Davies (the spokesperson for the Centre) with respect to the Centre’s express desire, as victim of the appellant’s defalcations, that the appellant:
(a)receive a community based penalty to enable her to continue making financial restitution; and
(b)not receive an immediate custodial sentence due to the negative impact that such a sentence would have on the appellant’s children and family unit; and
2. erred in not giving sufficient weight to the negative impact that an immediate custodial sentence would have on the appellant’s family, and in particular, her two year old daughter.
The determination of whether there is good reason to suspend involves the exercise of a broad discretion on the part of the sentencing judge, having regard to the full range of sentencing considerations.[1] As such, this appeal from the Magistrate’s refusal to suspend the sentence of imprisonment that he imposed is governed by the principles in House v The King.[2] These principles require satisfaction that the sentencing judge made an error of principle; took account of an irrelevant consideration; failed to take account of a relevant consideration; made a material error of fact; or reached a decision that was plainly unjust or unreasonable.
[1] R v O’Toole [2013] SASCFC 18 at [50].
[2] House v The King (1936) 55 CLR 499 at 504-505.
To contend, or establish, merely that the sentencing judge gave inadequate or insufficient weight to a particular consideration is not sufficient for the purposes of House v The King. Read literally, the appellant’s appeal grounds do not therefore contend any relevant error on the part of the Magistrate. However, even on a broad reading of those grounds, for the reasons that follow, I do not accept that any error has been established. I am not persuaded that in exercising his discretion not to suspend the appellant’s sentence of imprisonment the Magistrate made any error of principle, overlooked any relevant consideration, or otherwise reached a conclusion that was plainly unjust or unreasonable. The decision not to suspend the appellant’s sentence of imprisonment was an appropriate exercise of his Honour’s discretion.
The victim’s views as to the appropriate penalty
As mentioned, the former Director of the Centre, Ms Davies, gave evidence at the sentencing hearing. In speaking on behalf of the Governing Council of the Centre, she in effect spoke on behalf of the victim of the appellant’s offending.
Ms Davies gave evidence that she and the other employees of the Centre were upset and in disbelief when they learned of the appellant’s thefts. However, she went on to explain that the appellant had previously been a good employee, and had also cooperated fully once the thefts were discovered. When asked the view of the Governing Council and staff of the Centre as to whether the appellant should be incarcerated, Ms Davies said:
… we prefer that the family unit wasn’t disrupted and that [the appellant] didn’t get a gaol sentence and that part of her rehabilitation was to keep funding and paying back the money to the centre which we feel, if she’s incarcerated, it probably won’t happen. It would be much more useful for the centre to receive the funds.
On the hearing of this appeal, the respondent sought to adduce fresh evidence in the form of a victim impact statement from Ms Davies that the prosecutor overlooked tendering at the sentencing hearing. That statement addressed the financial impact of the offending on the Centre, a matter upon which the Magistrate had expressely declined to speculate in the absence of any evidence. Given the availability of this document at the time of sentencing, I decline to receive it as fresh evidence on the issue of whether the Magistrate fell into error.
The evidence of Ms Davies was relevant to the sentence to be imposed, including the decision whether to suspend the appellant’s sentence of imprisonment. It is well established that the victim’s evidence as to the impact of the offending upon them is relevant. While the victim’s attitude to the sentence to be imposed is also a relevant consideration, there is a limit to the weight that can be afforded to this matter, in particular insofar as it amounts merely to an opinion as to the appropriate sentence. It cannot be used to usurp the function of the sentencing judge. Nor, given the range of other matters that remain important in the sentencing exercise, can it govern the determination of the appropriate penalty.[3]
[3] R v Gannon (2009) 103 SASR 398 at [23]; R v M, G [2016] SASCFC 116 at [80] and [134]-[141].
I do not accept the submission that the Magistrate overlooked the relevance of the passage extracted above from Ms Davies’ evidence to the question of suspension of the appellant’s sentence of imprisonment. The Magistrate made express reference to the evidence of Ms Davies. While that reference mentioned only the appellant being a valued employee and the Centre remaining supportive of the appellant, I do not think it can be inferred that the Magistrate only had regard to certain aspects of Ms Davies’ evidence. It is important to bear in mind that sentencing remarks are not intended to be a comprehensive statement of all matters relied upon by a sentencing judge. In circumstances where the evidence of Ms Davies was short (extending over only four pages of transcript), I consider it appropriate to proceed on the basis that the Magistrate’s reference to this evidence was a compendious reference to the entirety of that evidence, including the passage extracted above and emphasised by the appellant. Indeed, I consider that the reference to the Centre being “supportive” of the appellant was likely a direct reference to the passage in question.
Further, I do not consider that it is of any significance that the Magistrate did not make any further express reference to the evidence of Ms Davies in the section of his remarks addressing the issue of suspension. The Magistrate’s reference to the “number of matters” referred to by the appellant’s counsel as relevant to suspension was most likely intended to include Ms Davies’ evidence. But even if that were not the case, there is no reason to think that the Magistrate did not bring to bear all of the sentencing considerations set out earlier in his remarks at this stage of his reasoning. It is not necessary for a sentencing court to recapitulate all relevant matters at the point of determining the issue of suspension.
Hardship to the appellant’s family
The incarceration of the appellant will no doubt cause hardship to her family. Again, the Magistrate made express reference to this consideration. His Honour did so prior to announcing the length of the sentence of imprisonment he intended to impose. He did so again in his remarks in relation to the issue of suspension.
As Nicholson J recently explained in R v M, G,[4] family hardship can be relevant in two ways. First, the effect of the hardship on the dependant or the dependants concerned, where the circumstances are extreme or exceptional, is a relevant consideration. Secondly, the effect on the offender can also be a relevant consideration.
[4] R v M, G [2016] SASCFC 116 at [40].
Here, the Magistrate made multiple references to the impact of the appellant’s incarceration upon her dependants. While the Magistrate applied a threshold requirement that the hardship be exceptional, this remains an accurate statement of the law.[5] As the appellant’s counsel conceded, the hardship in this case did not qualify as exceptional. In the circumstances there was no error in the Magistrate’s approach to the issue of hardship to the appellant’s dependants.
[5] R v M, G [2016] SASCFC 116 at [39]-[40].
Insofar as the appellant also relies on a contention that the Magistrate failed to have regard to the mitigatory significance of the hardship to the appellant as a result of being taken away from her family, I accept that the relevance of this hardship was not subject to a threshold requirement that it be exceptional. While the Magistrate did not make clear separate reference to the hardship experienced by the appellant as opposed to her dependants, I do not accept that the Magistrate overlooked this matter. The Magistrate made multiple references to the appellant’s family and the impact of the appellant’s imprisonment upon her family. In my view these references should be read as encompassing reference to the hardship to be experienced by the appellant herself and not just the hardship to be experienced by her dependants.
I am thus not satisfied that there was any error in the Magistrate’s consideration of the issue of hardship to the appellant or her dependants as a result of the disruption to her family that would result from her imprisonment.
Decision to suspend not plainly unjust or unreasonable
The appellant’s counsel did not directly contend that the Magistrate’s decision not to suspend the sentence of imprisonment imposed was a plainly unjust or unreasonable exercise of his discretion. However, to the extent that the appellant’s contentions in relation to the Magistrate’s approach to the issues of Ms Davies’ evidence and family hardship were intended to be advanced as particulars in support of a contention that the decision to suspend was plainly unjust or unreasonable, I am not satisfied that error has been established. True it is that there were factors to be weighed in favour of suspension in this case. They included the appellant’s admissions, cooperation and steps towards restitution. These considerations, together with the views of her psychologist, all supported a conclusion that the appellant has good prospects of rehabilitation. The attitude of the Centre (as expressed by Ms Davies) and the impact upon the appellant of being taken from her family were also of some, albeit limited, significance.
On the other hand, the number of offences, the lengthy period of time over which they occurred, and the fact that they involved an abuse by the appellant of her position of trust, meant that the offending in question was serious. The gravity of the offending and the importance of general deterrence in a case such as the present weighed heavily against a suspended sentence.
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.