Maione v Police - [2007] SASC 116

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MAIONE v POLICE
[2007] SASC 116
Judgment of The Honourable Justice Layton
2 April 2007
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - MISCELLANEOUS MATTERS - ABNORMAL MENTAL CONDITION
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FIRST OFFENDERS - SUSPENSION OF SENTENCE
Appeal against sentence imposed by a Magistrate - appellant pleaded guilty to 49 counts of forgery and 49 counts of uttering - appellant diagnosed as having developed into a major depressive illness by the time she was arrested - sentenced to three years imprisonment, with a non-parole period of 10 months - whether the Magistrate erred in refusing to suspend the sentence of imprisonment - whether the Magistrate failed to give sufficient consideration to the appellant's depressive illness and its relevance to her offending - whether Magistrate gave too much weight to considerations of deterrence - whether sentence should be suspended on grounds that imprisonment would be unduly harsh due to the appellant's ill health - consideration of s 38(2)(c) of the Criminal Law (Sentencing) Act - Held: Magistrate failed to consider the effect of the appellant's mental illness on her thought processes or her capacity to appreciate the gravity and significance of her offending - Magistrate failed to consider the effect of the appellant's mental illness on the weight to be given to matters of general and personal deterrence - sentence should be suspended on grounds that imprisonment would be unduly harsh due to the appellant's ill health - appeal allowed.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - ACCUSED UNFIT TO PLEAD OR INCAPABLE DURING TRIAL
Appellant also found unfit to stand trial in relation to 73 counts of fraudulent conversion - reports from three psychiatrists obtained pursuant to s 269T(2)(a) of the Criminal Law Consolidation Act 1935 - none of the reports recommended that the appellant be detained in a mental health facility - Magistrate set a limiting term of 10 months and ordered that the appellant be detained for the period of the limiting term - whether the Magistrate erred in making the order for detention - Held: Magistrate erred in making an order for detention where detention was not recommended by any of the three psychiatrists and where the Magistrate's remarks do not contain any consideration of the factors set out in s 269T - appeal allowed.
Criminal Law Consolidation Act 1935 (SA) ss 269O, 269S, 269T; Criminal Law (Sentencing) Act 1988 (SA) ss 18A, 38(2)(c), referred to.
R v Wiskich (2000) 207 LSJS 431 ; House v R (1936) 55 CLR 499, applied.
R v Tsiaras [1996] 1 VR 398; R v Murphy (2002) SASR 574; McNamara v Barrett [2001] SASC 354; R v Goodwin (2001) 80 SASR 195; R v Davey (2006) 95 SASR 63; R v T (1999) 75 SASR 235; R v Musolino [2004] SASC 89; R v Suri [2004] SASC 80; Police v Curtis & Marshall (2004) 145 A Crim R 587, considered.

MAIONE v POLICE
[2007] SASC 116
Magistrate’s Appeal
LAYTON J:
Introduction

The appellant committed a series of dishonesty offences over a period of about three years from October 1999 to August 2002. The offences were committed against her employer, Mr Schwartz, whilst she was employed as a bookkeeper in Mr Schwartz’ family business.
There were two separate files in the Adelaide Magistrates Court. On file No. 03-11170 (‘the forge and utter file’) the appellant pleaded guilty in April 2004 to 98 offences consisting of 49 counts of forgery and 49 counts of uttering. These offences related to the appellant’s forging of cheques, by altering the amounts or payees, and her subsequent uttering of those cheques. The total value of this fraudulent offending against her employer was $114,444.10.
The appellant was also charged with 73 counts of fraudulent conversion on Court File No. 04-15564 (‘the fraudulent conversion file’). These charges related to the appellant’s misuse of her employer’s corporate credit card, which allowed her to obtain a total of $28,973.13. On 15 April 2005 the appellant’s fitness to stand trial on these charges was questioned due to her mental illness. Ultimately, it was determined that she was mentally unfit to stand trial. On 10 August 2005 the appellant admitted the objective elements of the 73 fraudulent conversion counts. On 5 September 2006 the court formally recorded the finding that the appellant was mentally unfit to stand trial.
Both files AMC-03-11170 and AMC-04-15564 were brought before the learned Magistrate for sentencing on 7 December 2006. In relation to the first file, (AMC-03-11170) the Magistrate imposed one sentence of three years imprisonment, fixed a non-parole period of 10 months, and ordered that the appellant pay compensation of $20,000. The Magistrate declined to exercise his discretion to suspend the sentence of imprisonment. In relation to the second file (AMC-04-15564) for which the appellant was found unfit to stand trial, the Magistrate fixed a limiting term of 10 months and ordered that the appellant be detained for that limiting term.
The appellant now appeals against the sentence imposed by the Magistrate on both files.
Grounds of Appeal
The grounds of appeal are as follows:
1.That the sentence imposed by the learned Magistrate is manifestly excessive;
2.That the learned Magistrate erred in refusing to exercise his discretion to suspend the sentence of imprisonment; and
3.That the learned Magistrate erred in making a detention order under s 269O of the Criminal Law Consolidation Act.
In relation to the first count, counsel for the appellant explained that there would be no challenge to the imposition or the duration of head sentence of imprisonment and non-parole period. Rather, the argument would focus on the failure to suspend and the decision to make a detention order.
In short, with regard to the failure to suspend, it was argued that the Magistrate gave insufficient consideration and weight to the appellant’s mental illness and its relevance to the course of her offending. Further, it was submitted that, in refusing to suspend, the Magistrate gave too much weight to the seriousness of the offending and to considerations of deterrence, rather than considerations of the mental health and rehabilitation of the appellant. With regard to the decision to make a detention order, it was argued that the Magistrate gave insufficient weight to the medical evidence before him, which uniformly advised that the appellant did not require detention.
Personal circumstances of the appellant
At the time of sentencing, the Magistrate had before him a number of psychiatric reports, which detailed the appellant’s personal and psychological history. Those reports are:
(a)   Reports of Dr Raeside dated 20 April 2005; 28 September 2005; 16 May 2006; and 23 September 2006;
(b)   Report of Dr Ash dated 22 October 2002;
(c)   Report of Dr Champion dated 28 July 2004;
(d)   Report of Dr Tomasic dated 9 November 2006; and
(e)   Report of Dr Schirripa dated 6 November 2006.
There was also a Pre-Sentence Report prepared by Robyn Crago, dated 29 July 2004.
In summary, the appellant was raised within a strict Italian family. She reported a childhood “characterised by perceived lack of autonomy, overprotection, and the need to meet the expectations of others” (Report of Dr Ash dated 22 October 2002, page 6). She attempted suicide by overdosing at the age of seventeen. She married her first husband at the age of 19, “to get away from home and get some freedom” (Report of Dr Ash dated 22 October 2002, page 4). She became unhappy within this marriage, and she began to think of leaving or committing suicide. She eventually left her husband after the birth of her second child. Her parents reacted badly to her decision to leave, and disapproved of her subsequent relationships.
The appellant’s second marriage commenced in around 2000, and was a “difficult relationship” (Report of Dr Ash dated 22 October 2002, page 4). Her second husband physically assaulted her on a number of occasions, and was a gambler who “syphoned every dime out of [her]”(Report of Dr Champion dated 28 April 2004, page 2).
The appellant began gambling with her husband at the casino or on poker machines in 2001. She said it used to be “fun” but she began losing and struggled to have enough money to support the household and to fund her and her husband’s gambling. She experienced financial difficulties, aggravated by her husband continually asking for money (Report of Dr Raeside dated 20 April 2005, page 5).
The appellant said she stopped gambling two months before she was arrested in July 2002 (Report of Dr Champion dated 28 April 2004, page 2). Following her arrest, the appellant was admitted to the Adelaide Clinic, a private psychiatric hospital, for treatment and observation. She was discharged on 15 August 2002.
The offending
The appellant began working as a book-keeper and secretary for Mr Schwartz’s family business in 1999. Upon commencing, she realised that a previous employee had been taking money, and she “saw how easy it was to take money to make ends meet” (Report of Dr Ash dated 22 October 2002, page 2). As a result of her financial difficulties, the appellant began to “borrow” money from her employer after just two months in the job. At first the appellant was able to repay the money, but she soon lost this ability.
The appellant committed 49 counts of forging and 49 counts of uttering, between 13 October 1999 and 5 April 2002. This offending consisted of the appellant forging cheques, by altering the amounts or payees, and subsequently uttering those cheques, to obtain a total of $114,444.10.
The fraudulent offences were committed between 30 August 2000 and 30 June 2002. The appellant was entrusted with the firm’s credit card for the purpose of carrying out the firm’s business transactions. She misused the credit card to obtain for herself a total of $28,973.13.
The appellant’s offending was eventually detected when she was absent from work due to illness, and her employer started going through the cheque-book. Upon the appellant’s return her employment was terminated and she was arrested three weeks later.
The appellant reported to Dr Ash that she compulsively gambled and took money from her employer, that both “spiralled out of control”, and she “knew that something would eventually happen but felt unable to stop”. She also told Dr Champion that she felt guilty and knew she was going to get arrested, but didn’t know how to stop.
Mental health of the appellant
The earliest psychiatric report, dated 22 October 2002, was provided by Dr David Ash, who began treating the appellant in July 2002. Dr Ash’s report sets out the appellant’s personal history, and concludes:
Ms Maione suffers from a diagnosable psychiatric condition. Specifically she presents with symptoms consistent of a diagnosis of an Adjustment Disorder with Anxiety and Depression. Her symptoms however have at times been sufficient to warrant the diagnosis of a Major Depressive Disorder with Anxiety. In addition she gives a history of pathological gambling.
Dr Ash also reported that the appellant suffered recurrent symptoms of acute anxiety, including associated tachycardia, palpitations, chest tightness, pins and needles in her hands, dizziness, nausea, and a sense of unreality. The doctor also noted that at the time of the initial interview the appellant had been seriously contemplating suicide.
In his first report, dated 20 April 2005, Dr Raeside diagnosed the appellant as having had chronic low-level depression throughout much of her life. However, he considered that in recent times she had developed a major depressive disorder. He also considered that, at the time of offending, she had developed a pathological gambling disorder.
In his second report, dated 28 September 2006, Dr Raeside considered that the appellant’s condition had improved somewhat, and that she was at that stage fit to stand trial. However, in May 2006 Dr Raeside conducted an urgent psychiatric assessment, and concluded that, due to her ongoing depressive illness, the appellant was no longer fit to stand trial.
The Magistrate’s reasons
In his Sentencing Remarks of 7 December 2006, the Magistrate outlined the circumstances of the offending, and noted that such ‘white collar crime’ was “very serious and no less criminal than many other serious crimes”. The Magistrate also stated that, “A paramount consideration in sentencing for such offending must be deterrence, both general and personal”.
The Magistrate then went on to briefly outline the appellant’s personal circumstances, including her difficult childhood, gambling habit and overbearing second husband. In relation to the appellant’s mental health, the Magistrate referred to the psychiatric reports which indicated that the appellant had a major depressive illness and that during the course of the offending she felt caught up in a process which she knew was wrong, but from which she felt unable to desist. The Magistrate also adverted to the complication of being required to sentence for offences where the defendant has pleaded guilty as well as offences for which she has been found unfit to stand trial. Further, the period over which the offences occurred overlapped substantially.
The Magistrate then discussed the victim impact statement, which Mr Schwartz had read that day “with some emotion”, and which articulated the “devastating effect” of the appellant’s offending on Mr Schwartz and his family. The Magistrate referred to the authorities suggesting that the appropriate starting point for a major fraud of this nature as being a sentence of imprisonment. The Magistrate stated that general and personal deterrence are very important factors to be taken into account. He also stated that mental illness is a factor to be taken into account in assessing the head sentence as it reduces the criminality and is also relevant in fixing any non-parole period. The Magistrate noted that the effect upon the victim is also a matter to be taken into account, and stated that he had regard to the other factors set out in s 10(1) of the Criminal Law (Sentencing) Act 1988 (SA).
After making a discount of 30 percent, presumably for the appellant’s guilty pleas, the Magistrate imposed a sentence of three years imprisonment for the offences on the first file. The Magistrate then fixed a non-parole period of 10 months, “[h]aving regard to the defendant’s health in particular”. The Magistrate declined to suspend the sentence, due to the seriousness of the offending and considerations of deterrence.
In relation to the offences for which the appellant was unfit to stand trial, the Magistrate stated that he had regard to the case of R v Davey (2006) 95 SASR 63, and to s 269O(2) of the Criminal Law Consolidation Act 1935 (SA), which states:
If a court makes a supervision order, the court must fix a term (a limiting term) equivalent to the period of imprisonment or supervision (or the aggregate period of imprisonment and supervision) that would, in the court's opinion, have been appropriate if the defendant had been convicted of the offence of which the objective elements have been established.
The Magistrate fixed a limiting term of 10 months and ordered that the defendant be detained for the limiting term. He also emphasised that:
…it is appropriate that the defendant serve the time in a facility for mental health patients and I express the view that it would be unduly harsh if her time were to be spent in prison during the 10 months.
Failure to suspend
In refusing to suspend the appellant’s sentence of imprisonment, the Magistrate said:
I have considered carefully the issue of suspension and I have concluded that issues of deterrence must outweigh the personal factors. The seriousness of the offending demands that some time is spent in custody. I therefore decline to suspend the sentence which will commence forthwith.
The appellant argues that the Magistrate erred in failing to suspend the sentence of imprisonment, and further that this failure to suspend renders the sentence manifestly excessive. In particular, counsel for the appellant, Mr Griffin QC, submitted that the Magistrate erred in giving insufficient consideration to the appellant’s mental illness and its role in the appellant’s offending. He submitted that the Magistrate failed to adequately consider and give weight to the effect of the mental illness on the appellant’s thought processes and her capacity to appreciate the gravity of her offending. It was further submitted that, in refusing to suspend, the Magistrate had given too much weight to the seriousness of the offending and to considerations of deterrence, rather than to the appellant’s mental health and rehabilitation.
Mental Illness
Mr Griffin referred to the leading authority of R v Wiskich (2000) 207 LSJS 431 (‘Wiskich’), in which Martin J conducted an extensive review of the approaches to sentencing in cases of mental illness, and concluded:
The existence of a mental disorder is always a relevant factor in the sentencing process, but its impact upon that process and the various issues that arise in sentencing will vary considerably according to the circumstances of the individual case. An assessment of the severity of the disorder is required. A sentencing court must determine the impact of the disorder upon both the offender’s thought processes and the capacity of the offender to appreciate the gravity and significance of the criminal conduct. In this respect I agree with the approach taken in the Victorian and New South Wales authorities that, as a general proposition, if an offender acts with knowledge of what is being done and with knowledge of the gravity of the criminal conduct, the importance of the element of general deterrence otherwise appropriate in the particular circumstances is not greatly affected. The gravity of the criminal conduct is also an important consideration. It is not difficult to understand that the element of general deterrence can readily be given considerably less weight in the case of an offender suffering from a significant mental disorder who commits a minor crime, particularly if a causal relationship exists between the mental disorder and the commission of such an offence. In some circumstances, however, the mental disorder may not be serious or causally related to the commission of the crime, and the circumstances of the crime so grave, that very little weight in mitigation can be given to the existence of the mental disorder and full weight must be afforded to the element of general deterrence. In between those extremes an infinite variety of circumstances will arise in which competing considerations must be balanced. (emphasis added)
Mr Griffin also drew my attention to the decision of the Victorian Court of Appeal in R v Tsiaras [1996] 1 VR 398, of which the following passage was reproduced in the judgment of Martin J in Wiskich:
Serious psychiatric illness not amounting to insanity is relevant to sentencing in at least five ways. First, it may reduce the moral culpability of the offence, as distinct from the prisoner’s legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Secondly, the prisoner’s illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Thirdly, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourthly, specific deterrence may be more difficult to achieve and is often not worth pursuing as such.
Finally, a psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health.

These cases reinforce the principle that courts are required to give consideration to the existence of a mental illness or disorder, as part of the sentencing process. In particular, the court must “determine the impact of the disorder upon the offender’s though processes and the capacity of the offender to appreciate the gravity and significance of the criminal conduct”.[1] In addition, the court must consider any causal connection between the mental illness or disorder and the offending in the particular case. These considerations are to be weighed along with factors including the seriousness of the offending and issues of general and personal deterrence. It is only by undertaking this balancing process that the mitigating effect of a mental illness or disorder may be determined.
[1] R v Wiskich (2000) 207 LSJS 431, 457.
In relation to the appellant’s mental health, the Magistrate said at paragraphs [9]-[10]:
The numerous psychiatric reports that have been obtained make it clear that Ms Maione developed a major depressive illness during the course of her relationship with the second husband. During the course of the offending she felt caught up in a process which she knew was wrong, but from which she felt unable to desist. It is clear from the reports of Drs Champion, Raeside, Ash, Tomasic and others that Ms Maione’s illness has not abated after the offending ceased; rather it has continued as a severe form of depression. (emphasis added)
Later, the Magistrate also noted that:
The authorities make it clear also that where a person has been mentally ill during offending that is factor to be taken into account in assessing the head sentence as it reduces the criminality and is a factor to be taken into account in fixing any non parole period.
The Magistrate recognised that the appellant developed a major depressive illness during the course of her relationship with her second husband, which largely coincided with the appellant’s offending. The Magistrate specifically noted that, “[d]uring the course of the offending she felt caught up in a process which she knew was wrong, but from which she felt unable to desist”. Mr Griffin submitted that, while the Magistrate found that the appellant knew that her offending was wrong, he did not specifically consider or determine the effect of the appellant’s depressive illness on her thought processes or her capacity to appreciate the gravity and significance of her offending.
Mr Griffin pointed to the psychiatric evidence, which described the appellant’s depressive condition as pre-dating her offending, albeit in a less severe form than after her arrest. The earliest report, given by Dr Ash, states that, “the available history suggests that [the appellant] was not significantly depressed when she started taking the money from her employer nor when she started gambling”. Later Dr Ash again states:
The available history suggest that she was not suffering from a diagnosable psychiatric condition when she first taking [sic] money from her employer. She did however develop symptoms over time which were consistent with the conditions outlined above.
On the other hand, in his report of 20 April 2005 Dr Raeside considered that:
… it is likely that Ms Maione was suffering from a depressive disorder during the time of her alleged offending, which has subsequently worsened during her arrest and its aftermath.
Dr Champion’s report of 28 July 2004 referred to the appellant’s long history of depression, and concluded that:
[w]hile she knew her actions to be wrong when she began to fraudulently obtain money, I consider that her decision to do so, and her perception that she had no other options available to her, was influenced by her depression.
Dr Tomasic, in his report of 9 November 2006, diagnosed the appellant as suffering from Dysthymic Disorder, a chronic low-grade depression, which worsened to constitute major depression following her offending behaviour.
It was submitted that as the appellant’s depressive illness worsened, her ability to cease the offending diminished to the point that it was “practically impossible”. Mr Griffin argued that, while the Magistrate had recognised the fact of a worsening mental illness, he had not adequately considered the effect that this progressively worse mental illness had on the appellant’s culpability for the offences. It was suggested that the appellant’s offending fell into two categories, and that the early period of offending could be viewed as more culpable than the latter period, during which it was submitted that the appellant’s worsening mental illness prevented her from controlling her behaviour.
It is difficult on the evidence to determine the point at which the appellant’s condition worsened so as to constitute a major depressive disorder. The psychiatric reports suggest that the worsening of the condition was linked to the appellant’s feelings of guilt and hopelessness as result of her offending, which commenced in October 1999. The reports also link the appellant’s deterioration to her abusive second marriage and her gambling habit, both of which commenced in mid-2000 and ended in May 2002. The appellant was arrested on 25 July 2002. The appellant was first diagnosed with major depressive illness following an interview with Dr Ash on 28 July 2002. Therefore the most that can be said, is that the appellant’s major depressive illness most likely gradually developed sometime between June 2000 and May 2002 (when her relationship and gambling ceased), with florid symptoms being diagnosed in July 2002.
The crucial issue, however, is the extent to which the appellant’s worsening condition impaired her thought processes or her capacity to appreciate the gravity and significance of her offending. The report of Dr Raeside dated 20 April 2005 states:
… despite my opinion that Ms Maione was suffering from a mental disorder at the time of the alleged offending, there is no indication that she was unable to know the nature and quality of her actions, the wrongfulness of them, or be unable to control her conduct by virtue of her psychiatric symptoms. Indeed, it appears that her awareness of the nature of what she was doing and the wrongfulness of it further contributed to the evolution of her depression at that time, with her feeling trapped in the circumstances in which she found herself. She was aware that what she was doing was wrong and expressed a desire to get some help from somewhere, but felt unable to do so.
Therefore, I would not support a mental impairment defence in this matter, but would suggest that Ms Maione’s chronic and more acute depressive symptoms were a significant factor affecting her judgement at the time. (emphasis added)
Dr Ash’s report also referred to Ms Maione having felt guilty when taking money, and that she “knew that something would eventually happen but felt unable to stop”.
The report of Dr Champion quotes the appellant as saying that she took the money, “knowing fully that it was wrong”. The report also states:
She felt increasingly guilty about this, but said ‘I didn’t know how to get out, I didn’t know how to stop’. She said ‘I knew I was going to get arrested’, but she never sought help.
In light of these reports, it appears that the appellant’s condition did not significantly diminish her capacity to appreciate the gravity and significance of her offending. It is clear that the appellant was largely aware of the wrongfulness of her actions, and indeed, as noted by Dr Raeside, this awareness contributed to the deterioration of the appellant’s condition.
However, the appellant’s worsening mental illness does seem to have influenced her thought processes and consequent behaviour, in that she felt “unable to stop” and unable to seek help. Dr Champion’s report suggests that the appellant’s decision to take money and her perception that she had no other options available to her, was influenced by her depression. I also note the conclusions of Dr Raeside quoted above, namely that the appellant’s “chronic and more acute depressive symptoms were a significant factor affecting her judgement at the time”. The forge and utter offences occurred across a spectrum of time between 13 October 1999 and 5 April 2002. It appears that while the appellant’s low grade depression played a minor role in her early offending, her worsening depression was later a factor in her inability to control her behaviour and to cease offending.
Deterrence
It is apparent that the Magistrate gave particular weight to matters of deterrence. He said in paragraph [15] of his Remarks:
… I regard the offences on the first file involving loss of $114,44.10 as very serious in themselves. It is a situation where I am convinced that there should be strong emphasis upon deterrence, both personal and general.
Counsel for the respondent, Mr Rodriquez, drew my attention to the case of R v Murphy (2002) 83 SASR 574, in which Martin J commented at 581:
Reasonable members of our community would recognise that a person who commits a crime while suffering from a serious psychiatric illness may not be an appropriate vehicle for the imposition of a sentence that fully reflects the requirement of general deterrence. However, it might reasonably be said that such an approach does not apply with the same force to an offender who was not suffering such an illness at the time of the commission of crimes as grave as those under consideration, but subsequently developed the illness.
This case concerned an offender who had killed his mother and her de-facto husband in 1994. Four years later, the offender was diagnosed with schizophrenia. It was held that although the illness may have been in its “pre-dormant” phase at the time of the offences, the offender’s mental condition at that time was not such as to require or justify significant weight in mitigation.
The present case is distinguishable from Murphy on the basis of the psychiatric evidence, which suggests that the appellant was suffering from low-grade depression when she commenced offending, which continued throughout her offending and developed into a major depressive disorder by the time she was arrested. This is not a case where the mental illness has developed subsequent to the offending.
Given the close relationship between the appellant’s mental illness and her offending, the appellant should not be regarded as an appropriate example for the purposes of general deterrence.[2]
[2] R v Tsiaris [1996] 1 VR 398, 400.
The appellant’s mental illness also has the effect of diminishing the weight to be given to personal deterrence. Mr Rodriquez accepted that in cases involving offending of this type, the offender is unlikely to re-offend. However, he submitted that considerations of general and personal deterrence are nonetheless to be given greater weight than personal factors. That may be so in cases where the offender does not suffer any mental illness or disorder. However I consider that in a case such as the present, the causal link between the appellant’s depression and her offending requires greater weight to be given to matters of rehabilitation than to personal deterrence. On this point, I note the report of Dr Champion, which suggests that the appellant has a low risk of re-offending provided her underlying depressive illness is adequately treated.
Did the Magistrate err in failing to suspend?
Counsel for the respondent argued that, while the Magistrate did not expressly undertake the balancing process referred to in Wiskich, the comparatively low non-parole period imposed suggests that the Magistrate gave significant weight to the appellant’s mental condition. Further, it was argued that giving insufficient weight to a factor in sentencing is not necessarily a failure to have regard to a material consideration, which would constitute an error in the exercise of the sentencing discretion.[3]
[3] House v R (1936) CLR 55 499, 505.
Following the decision in House v R (1936) 55 CLR 499, an appellate court will only interfere with the exercise of discretion in sentencing where the sentencing judge has acted upon some wrong principle; has allowed irrelevant considerations to guide or affect him or her; has mistaken the facts; has failed to have regard to a material consideration; or where 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.
In this case I consider that although the Magistrate has referred to the need to take into account mental illness, he erred in failing to consider the effect of the appellant’s mental illness on her thought processes or her capacity to appreciate the gravity and significance of her offending. The Magistrate also failed to consider the effect of the appellant’s mental illness on the weight to be given to matters of general and personal deterrence. Whilst the Magistrate expressly stated that he took the appellant’s mental illness into account, he did not undertake the balancing process, which is required by Wiskich.
I consider that, had the Magistrate had regard to these considerations, the weight he gave to matters of general and personal deterrence would have been diminished. In refusing to suspend the sentence of imprisonment, the Magistrate said: “I have considered carefully the issue of suspension and I have concluded that issues of deterrence must outweigh the personal factors”. I consider that this conclusion is infected with the errors referred to above.
Suspension and home detention
Counsel for the appellant urged that I interfere with the sentence imposed by the Magistrate, by suspending the sentence of imprisonment and ordering home detention of the appellant under s 38(2)(c) of the Criminal Law (Sentencing) Act1988 (SA) (‘the Act’). This section came into operation in October 1999, and provides:
If the court suspends a sentence of imprisonment under this section on the ground that, because of the defendant's ill health, disability or frailty, it would be unduly harsh for the defendant to serve any time in prison, the court may, in addition to any other conditions included in the bond, include a condition (a 'home detention condition') requiring the defendant to reside in a specified place and to remain at that place for a specified period of no more than 12 months, not leaving it except for one of the following purposes:
(a) remunerated employment;
(b) necessary medical or dental treatment for the defendant;
(c) averting or minimising a serious risk of death or injury (whether to the defendant or some other person);
(d) any other purpose approved or directed by the community corrections officer to whom the defendant is assigned,
(and if the court includes a home detention condition it must also include a condition requiring the defendant to be under the supervision of a community corrections officer for at least the same period)." (emphasis added)
The clear purpose of this section is to cater for cases in which the offender suffers from an illness or disability which would render a term of imprisonment unduly harsh, but in which a punishment in the form of restriction of the offender’s liberty is still appropriate. The section is only applicable in cases where a sentence of imprisonment is suspended “on the ground that, because of the defendant's ill health, disability or frailty, it would be unduly harsh for the defendant to serve any time in prison”.
This section was applied in McNamara v Barrett [2001] SASC 354, in circumstances similar to the present case. In that case, the appellant pleaded guilty to 12 counts of false pretences and one count of fraudulent conversion. The appellant suffered from post-traumatic stress disorder as a result of being the victim of three bank hold-ups several years earlier, and was fearful coming into contact with people who had committed hold-ups. The appellant also suffered from diabetes. Both the diabetes and the post-traumatic stress disorder required regular and ongoing treatment. In that case Nyland J allowed the appeal, suspended the sentence of imprisonment on the ground that it would be unduly harsh, and imposed a bond including home detention provisions, pursuant to s 38(2)(c).
The section was also considered by the Full Court in R v Godwin (2001) 80 SASR 195. In that case the appellant was convicted of three counts of dangerous driving causing grievous bodily harm, and was sentenced to two years and 10 months imprisonment, with a non-parole period of 20 months. As a result of the car accident giving rise to the charges, the appellant was an incomplete quadriplegic and suffered chronic pain, major depression and other psychological problems. At the hearing of the appeal, evidence was adduced to the effect that that the appellant’s health problems were difficult to manage effectively within the prison system.
Prior J (with whom Nyland and Lander JJ agreed) was not satisfied that it would be unduly harsh for the appellant to serve any time in prison because of her ill health, disability or frailty. His Honour noted that the short time the appellant had spent in custody did not indicate that it was unduly harsh for her, and the difficulties raised did not persuade his Honour that a custodial sentence was inappropriate for such offences.
In the present case, counsel for the appellant submitted that a sentence of immediate imprisonment would be unduly harsh on the appellant due to her major depressive illness. Mr Griffin pointed to the psychiatric reports which suggest that incarceration would exacerbate the appellant’s mental illness and would increase the risk of suicide. Mr Griffin also pointed to the recommendations made in the psychiatric reports, for a “comprehensive treatment plan” involving “intensive appropriate psychiatric and psychological therapy”.
Mr Griffin argued that the Magistrate had in fact concluded that imprisonment of the appellant would be unduly harsh in light of her mental illness. In ordering a period of detention in relation to the fraudulent conversion file, the Magistrate stated:
I order that the defendant be detained for the limiting term. I add specifically that it is appropriate that the defendant serve the time in a facility for mental health patients and I express the view that it would be unduly harsh if her time were to be spent in prison during the 10 months. (emphasis added)
Thus Mr Griffin argued that the Magistrate had attempted to ameliorate the harshness of a custodial sentence on the forge and utter file, by ordering that the appellant be detained in a mental health facility on the fraudulent conversion file. Mr Griffin argued that this supposition was supported by the Magistrate’s imposition of a period of detention that is identical in length to the non-parole period imposed.
I agree that the Magistrate has in fact found that it would be unduly harsh for the appellant to serve any time in prison, and has attempted to circumvent the serving of at least the non-parole period imposed, by ordering the appellant’s detention under s 269O. Having regard to the psychiatric reports referred to above, it is also my view that the imposition of an immediate term of imprisonment would be unduly harsh due to the appellant’s depressive illness. Section 38(2)(c) makes it clear that this is sufficient ground upon which to suspend a sentence of imprisonment.
Order for detention
The third ground of appeal concerns the order for detention made under s 269O of the Criminal Law Consolidation Act, in relation to the offences on the fraudulent conversion file. It was submitted that there was no evidence before the Magistrate to support the making of the detention order, and that rather the psychiatric evidence before the Magistrate recommended that the appellant not be detained. It was submitted that the only basis for the Magistrate ordering the appellant’s detention in a mental health facility was in order to ameliorate the unduly harsh effects of imprisonment.

Section 269O provides that:
(1) The court by which a defendant is declared to be liable to supervision under this Part may—
(a) release the defendant unconditionally; or
(b) make an order (a supervision order)—
(i) committing the defendant to detention under this Part; or
(ii) releasing the defendant on licence on conditions decided by the court and specified in the licence.
(2) If a court makes a supervision order, the court must fix a term (a limiting term) equivalent to the period of imprisonment or supervision (or the aggregate period of imprisonment and supervision) that would, in the court's opinion, have been appropriate if the defendant had been convicted of the offence of which the objective elements have been established1.
(3) At the end of the limiting term, a supervision order in force against the defendant under this Division lapses.
In accordance with s 269S, in deciding whether to commit a defendant to detention, or release him or her on licence, the court must apply the principle that restrictions on the defendant’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community. The court must also have regard to the factors listed in s 269T, which provides:
(1) In deciding proceedings under this Division, the court should have regard to—
(a) the nature of the defendant's mental impairment; and
(b) whether the defendant is, or would if released be, likely to endanger another person, or other persons generally; and
(c) whether there are adequate resources available for the treatment and support of the defendant in the community; and
(d) whether the defendant is likely to comply with the conditions of a licence; and
(e) other matters that the court thinks relevant.
(2) The court cannot release a defendant under this Division, or significantly reduce the degree of supervision to which a defendant is subject unless the court—
(a) has considered at least three reports (expert reports) each prepared by a different psychiatrist or other appropriate expert who has personally examined the defendant, on—
(i) the mental condition of the defendant; and
(ii) the possible effects of the proposed action on the behaviour of the defendant; and
(b) has considered the report most recently submitted to the court by the Minister under this Division; and
(c) has considered the report on the attitudes of victims and next of kin prepared under this Division; and
(d) is satisfied that—
(i) the defendant's next of kin; and
(ii) the victim (if any) of the defendant's conduct; and
(iii) if a victim was killed as a result of the defendant's conduct—the next of kin of the victim, have been given reasonable notice of the proceedings.
(2a) However, the court may act on the basis of one or two expert reports if—
(a) the supervision order arose from proceedings based on a charge of a summary (rather than an indictable) offence; and
(b) satisfied that, in the circumstances of the case, the report or reports adequately cover the matters on which the court needs expert advice.
In accordance with s 269T(2)(a) the reports of Doctors Tomasic, Raeside and Schirripa were obtained. Mr Griffin drew my attention to the report of Dr Raeside dated 23 September 2006, which stated:
I do not believe that Ms Maione requires inpatient psychiatric care at present, although her potential for increased suicidal thoughts in the future is obviously a concern. I do not consider that she is a significant risk to the community at present given the nature and circumstances of her previous charges. I therefore would not recommend that she is incarcerated at James Nash House… However, intensive appropriate psychiatric and psychological therapy would appear to be necessary and appropriate.
I was also referred to the report of Dr Tomasic, who supported Dr Raeside’s recommendation for a comprehensive treatment programme, and stated: “She does not require inpatient care at this stage”.
The report of Dr Schirripa, a psychiatric registrar at James Nash House, also recommended that the appellant remain within the community. The report states: “Given her current mental state, I agree that community outpatient treatment is appropriate at this time and I do not recommend that she be committed to detention”.
Not one of the psychiatric reports before the Magistrate recommended that the appellant be detained.
In light of these reports, it is difficult to see how the Magistrate came to the conclusion that detention under s 269O was necessary. The Magistrate’s remarks do not contain any consideration of the factors in s 269T in relation to detention, nor do they reveal the Magistrate’s reasons for ordering the appellant’s detention. There is also no reference to the recommendations made by the psychiatric experts in the reports ordered under s 269T. It appears, as suggested by Mr Griffin, that the Magistrate was attempting to ameliorate the sentence of imprisonment imposed, by instead ordering the detention of the appellant in a mental health facility, for the same duration as the non-parole period set. I therefore consider that the Magistrate has erred in ordering the detention of the appellant under s 269O.
Length of the limiting term
Section 269O(2) requires the court to set a limiting term equivalent to the period of imprisonment or supervision that would have been appropriate if the defendant had been convicted of the offence of which the objective elements had been established. In setting the limiting term, the court must give adequate reasons to explain how the term was fixed and state any discounts given for admission of the objective elements.[4] The fact that the defendant is a person of diminished responsibility by reason of mental impairment is not to be taken into account.[5]
[4] R v Davey (2006) 95 SASR 63.
[5] R v T (1999) 75 SASR 235.
In this case, the appellant admitted the objective elements of 73 counts of fraudulent conversion. The offence of fraudulent conversion carries the maximum penalty of seven years imprisonment.[6]
[6] Section 184(1)(a) Criminal Law Consolidation Act 1935 (SA).
The Magistrate’s remarks reveal none of his Honour’s reasoning in the process of arriving at a limiting term of 10 months. The Magistrate does not expressly consider the sentence of imprisonment which would have been imposed if the appellant had been convicted of 73 counts of fraudulent conversion. It is apparent that, had the Magistrate undertaken such an exercise, a term longer than 10 months would have been appropriate, taking into account the number of counts and the breach of trust involved. This is so, even taking into account any credit which may have been given for the appellant’s admission of the objective elements of the offences. The authorities[7] reveal that, although sentences for these types of offences vary greatly, a sentence of 10 months would be considered manifestly inadequate for offending of this kind. However, bearing in mind that there was no cross-appeal by the Crown, I do not consider that it is appropriate to increase the period of the licence to reflect these considerations.
[7] See e.g. R v Musolino [2004] SASC 89; R v Suri [2004] SASC 80; Police v Curtis and Marshall (2004) 145 A Crim R 587.
Orders
For the above reasons I make the following orders:
1.     The appeal is allowed.
2.     The sentence of three years imprisonment with a non-parole period of 10 months, imposed by the Magistrate on file AMC-03-11170, is wholly suspended upon the appellant entering into a bond for a period of three years. The conditions of the bond are as follows:
1.    That the appellant be of good behaviour, and comply with all the other conditions of this bond.
2.    That the appellant be under the supervision of a community corrections officer for a period of three years and obey the lawful directions given by the community corrections officer to whom she is assigned for the purposes of supervision.
3.    That for a period of 12 months:
i) The appellant reside at [named address] and not absent herself from that address except for remunerated employment, for any necessary medical or dental treatment, to minimise risk of serious injury or death, whether to herself or some other person, or for any other purpose approved by a community corrections officer of the Department for Correctional Services;
ii) The appellant obey all the lawful instructions of any community corrections officer designated to supervise her on home detention.
4.    That the appellant does not consume any drug which is not medically prescribed or otherwise legally available and then only at the prescribed or recommended dosages and that she submit to any urine analysis as directed by the community corrections officer and
5.    That the appellant does not participate in gambling activity of any kind.
6.    That immediately upon release the appellant shall travel to the address at [named address] and upon arrival to contact the Home Detention Unit at the Elizabeth office of the Department for Correctional Services by telephoning 8411 4125
3.     The order for detention made by the Magistrate on file AMC-04-15564 is set aside.
4.     The defendant having been declared liable to supervision on 7 December 2007, it is ordered that pursuant to Subsection 269O(1)(b)(ii) the defendant be released on licence with conditions to be determined by further court order.
5.     All other orders of the Magistrate to stand.