Matulich v Police - [2007] SASC 440

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MATULICH v POLICE
[2007] SASC 440
Judgment of The Honourable Justice Gray
10 December 2007
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - MISCELLANEOUS MATTERS - REPARATION AND RESTITUTION BY OFFENDER
Appeal against sentence – appellant convicted of 206 counts of dishonesty offences (falsehoods, theft and falsifying documents) – Magistrate sentenced appellant to a head sentence of five years and fixed non-parole period of two and a half years – appellant ordered to make restitution in full to her employer in the order of $129,736.46 at time of sentence – appellant pleaded guilty to long-term offending spanning five years - whether sentence manifestly excessive - whether Magistrate erred in fixing a notional head sentence without disclosing basis of selection – whether Magistrate mischaracterised appellant’s conduct as a ‘gross breach of trust’ – whether Magistrate placed too much weight on the need for sentence to reflect personal deterrence – whether Magistrate had regard to the effect of restitution as a mitigatory factor in sentencing – whether Magistrate erred in failing to accept restitution as evidence of contrition and remorse – whether restitution in excess of defalcations can be ordered as ‘compensation’ under section 53 of the Criminal Law (Sentencing) Act 1988 (SA) - whether Magistrates Court recorded an inadequate amount to be paid by way of victim’s levy under section 32 of the Victims of Crime Act 2001 (SA).
Held: Appeal allowed, appellant re-sentenced: Head sentence of five years imposed by Magistrate set aside and reduced to three years and nine months on account of appellant’s guilty plea, personal sacrifice, contrition, remorse, psychological state and good prospects for rehabilitation - Magistrate failed to place appropriate weight on restitution effected - restitution an important mitigating factor when determining appropriate sentence - restitution demonstrative of remorse and contrition - restitution does not automatically entitle a defendant to a suspension of a sentence of imprisonment - necessary to look at nature of offending – Magistrate erred in placing too much weight on personal deterrence factor - appellant breached friendship and trust in terms of responsibilities given at workplace – cases of comparable offending not useful in arriving at appropriate sentence - Magistrate correct in identifying in his remarks the matters that gave rise to the imposition of the global penalty – victim’s levy imposed by operation of law - obligation is on the Court to record the victim’s levy to give effect to legislative requirements – Magistrate applied incorrect levy.
Criminal Law Consolidation Act 1935 (SA) s 134, s 140 and s 178; Criminal Law (Sentencing) Act 1988 (SA) s 10, s 52 and s 53; Victims of Crime Act 2001 (SA) s 32, referred to.
The Queen v Robertson (1984) 115 LSJS 51; O’Keefe (1992) 60 A Crim R 201; SA Police v John (1995) 181 LSJS 20; Radjevic v Police (1997) 67 SASR 478; Kovacevic v Mills (2000) 76 SASR 404; Brooks v Police [2000] SASC 66; R v Allen [2005] QCA 73; R v Waugh (2005) 93 SASR 274; R v Symonds [1999] SASC 217; R v Nylander (2003) 228 LSJS 24; R v Shannon (1979) 21 SASR 442; R v O'Donnell (1974) 7 SASR 114; R v Hitchens (1995) 184 LSJS 337; Marshall v Western Australia [2007] WASCA 96, considered.

MATULICH v POLICE
[2007] SASC 440
Magistrates Appeal
GRAY J.

This is an appeal against a sentence of imprisonment.
The determination of the appeal requires an analysis of the proper approach to sentencing for multiple offending. The appeal also raises for consideration the relevance of restitution to sentencing. Other questions arise concerning the statutory power to order restitution and compensation, and the calculation of, and issues concerning, the Victims of Crime Levy.
Background
The appellant, Christine Ann Matulich, was employed as a clerical assistant at family business located in Port Lincoln. Her duties included the preparation of cheques for her employer, a director of which would sign the cheques. On more than one hundred occasions, the appellant altered cheques and used them for her own purposes. This conduct benefited the appellant in the amount of $117,207.42.
The terms of the charges laid on the information were dependent on whether the offences occurred before or after 5 July 2003, the date on which new theft offence provisions were inserted in the Criminal Law Consolidation Act 1935 (SA). With respect to offences prior to 5 July 2003, the appellant was charged with falsification of accounts under section 178 of the Criminal Law Consolidation Act, being the falsification of cheques and the cheque butts. Thirty counts were laid in relation to falsehoods commencing from 15 April 2001 to 4 July 2003. With respect to offences that occurred after 5 July 2003, the appellant was charged with theft under section 134 of the Criminal Law Consolidation Act. There were 89 counts relating to the period from 5 July 2003 to 1 July 2006. The appellant was also charged with 87 counts of falsifying a document in that same period under section 140(4) of the Criminal Law Consolidation Act. Each of these counts arose out of the same transaction, giving rise to an offence against section 134 of the Criminal Law Consolidation Act.
The appellant pleaded guilty to all counts. The Magistrate identified a notional starting sentence of seven years imprisonment for all the appellant’s offending, then made a reduction of two years for the pleas of guilty and imposed a sentence of imprisonment of five years. The Magistrate fixed a non-parole period of two and a half years. The Magistrate declined to suspend the sentence. The Magistrate ordered that the appellant pay restitution in the sum of $129,736.46, being the total amount of the defalcations together with associated investigation expenses.
The Appeal
The appellant complained that the Magistrate made errors when sentencing. It was said that the Magistrate arrived at a notional starting sentence without disclosing any basis for that determination, mischaracterised the appellant’s conduct as a “grave breach of trust”, failed to have proper regard to the restitution made by the appellant, and placed too much weight on the suggested need for personal deterrence. It was further contended that when regard was had to comparable offending in other cases, the sentence imposed was manifestly excessive. It was further complained that the sentence was manifestly excessive, and that any term of imprisonment imposed should have been suspended.
The appellant conceded that the offending was serious and protracted, and that general deterrence must play a significant part in the fixing of a penalty. However, it was said that the offending was unsophisticated and naïve, and was effected in a way that would allow easy discovery.
The Crown submitted that the inherent seriousness of the offending meant that an immediate custodial sentence was appropriate. It was said that not only had there been a long running course of conduct over a period of five years, but one that involved systematic and repeated defalcations of small amounts at regular intervals. The taking of small amounts allowed the frauds to persist without detection. It was pointed out that the appellant did not stop the frauds of her own volition. Following the discovery of the frauds, the appellant was then dismissed from her employment.
In the course of the appeal, further evidence was placed before the Court, concerning restitution and rehabilitation. The Crown accepted that in the event that this Court allowed the appeal and re-sentenced the appellant, this information was relevant and admissible. There was no challenge to its accuracy. I will return to this topic later in these reasons.
Position of Trust
In relation to the issue of whether the appellant was in a position of trust, the Magistrate reasoned:
As a result of your conduct you wrongfully obtained $117,207.42 from your former employer. You deprived your employer of money and potentially put the livelihood of its owners and their five children at risk. Your conduct jeopardized the livelihood of those dependant upon the business including other employees. Your conduct was sustained. It took place over a period of five years and it stopped only when your conduct was discovered by your employer. Notwithstanding the matters put to me by [your counsel] it was a grave breach of trust.
On appeal it was submitted that the appellant did not occupy a position of trust comparable to a solicitor or accountant, but rather was a clerical assistant with no special or particular qualifications. However, it was accepted that the appellant was in a position of trust with her employer, as she was entrusted with the handling of negotiable instruments and the preparation of associated records.
The appellant contended that the Magistrate’s use of the phrase “grave breach of trust” elevated the nature of the offending to be comparable to that of a solicitor or accountant engaged in dishonest conduct.
The Crown submitted that the appellant was trusted by her employers to perform her duties honestly. It was pointed out that she was entrusted with negotiable instruments on a regular basis, and that her duties included attending to payments and the handling of associated banking and record-keeping activities. She was entrusted with these responsibilities over many years. It was said that the Magistrate’s characterisation of her role and conduct was appropriate.
In my view the appellant’s submission is misconceived. The appellant was involved in a breach of trust for a lengthy period, and involving substantial sums. She did engage in a gross breach of trust in the performance of her duties for her employer. However, the appellant’s position may be distinguished from that of a solicitor or other person in the position of a fiduciary.
Restitution – The Magistrate’s Remarks
On the issue of restitution, the Magistrate, when imposing the head sentence of imprisonment, remarked:
The harm you have caused to the Harvey family cannot be repaired by the repayment of the money you have taken. Mr and Mrs Harvey and their five children have all suffered because of your greed.
When considering the question of suspending the term of imprisonment, the Magistrate discussed the topic of restitution in more detail:
[Your counsel] referred me to the case of [Radjevic] which dealt with the importance of restitution in considering the possible suspension of a custodial sentence. I consider that your case is very different from the case of [Radjevic]. Firstly the amount involved in that case was only about $12,000. The offending took place over a period of less than two months. But more importantly, the repayment that was offered to the defendants’ victims could only be made if the defendants were not imprisoned. He asks me to consider the fact that you have offered to make restitution for the money you have taken and I take that into account. However in my view, given your circumstances, namely being the part registered owner of property in Port Lincoln your ability to resist repaying restitution or making restitution to the Harvey family is very limited. Nonetheless I accept what [your counsel] puts to me. You could have made it very difficult for the Harvey family to recover the money you took had you so chosen.
The appellant submitted that the Magistrate’s approach to restitution demonstrated a misunderstanding and misapplication of relevant legal principle.
The appellant submitted that the Magistrate did not give any consideration to restitution in arriving at a head sentence. It was contended that restitution is relevant to the length of sentence, as well as suspension.[1] It was said that the appellant’s action in selling what was her only asset in order to make restitution was significant, and it was irrelevant whether or not she was in a position to resist restitution. It was contended that restitution has a similar utilitarian value to a plea of guilty (even where such a plea amounts to acquiescence in the face of the inevitable)[2] and so for policy reasons should result in a significant sentence reduction or suspension in order to encourage offenders to take all steps to make restitution when ordered to.
[1] SA Police v John (1995) 181 LSJS 20 at 22; R v O’Keefe (1992) 60 A Crim R 201 at 205. See also Criminal Law (Sentencing) Act 1988 (SA), sections 10 and 52.
[2] See R v Shannon (1979) 21 SASR 442 at 451-453.
It was contended that the making of restitution is a matter relevant to the exercise of the sentencing discretion. It bears on the question of the extent of any “injury, loss or damage resulting from the offence”[3] and is also relevant to a demonstration of contrition.[4]
[3] Criminal Law (Sentencing) Act 1988 (SA), section 10(1)(e).
[4] Criminal Law (Sentencing) Act 1988 (SA), section 10(1)(f)(i).
The Crown submitted that there is an inherent problem that those defendants with assets, the capacity to earn income, or with access to credit, may have the benefit of a mitigating factor that those without such financial means cannot enjoy.[5] The Crown contended that restitution is not itself relevant, but is one means among others of demonstrating contrition. It was said that the weight to be attached to restitution will depend on the willingness and promptness with which it is made, and to its extent. For that reason, it was submitted that whether the appellant had no choice but to ultimately pay is a relevant factor in determining whether restitution demonstrates contrition.[6]
[5] See Brooks v Police (2000) 76 SASR 279 at [43] (Bleby J).
[6] Kovacevic v Mills (2000) 76 SASR 404; Radjevic v Police (1997) 67 SASR 478; The Queen v Robertson (1984) 115 LSJS 51.
Finally, the Crown submitted that the notion of “full restitution” is apt to mislead. It was also contended that restitution does not compensate for the lost financial opportunity associated with the use of the funds. Nor does it address the emotional and physical effects of being the victim of crime. Restitution, while relevant to considering the extent of financial loss, does not mean that there is no injury, loss or damage.
Restitution – The Legal Principles
A convenient starting point for the discussion of the relevant principles to be applied on this topic is the decision in 1984 of the Court of Criminal Appeal in Robertson.[7] That decision pre-dated the enactment of the Criminal Law (Sentencing) Act 1988 (SA). In that case, the defendant was sentenced to 18 months imprisonment with respect to offences of dishonesty. On appeal, further evidence was placed before the Court concerning restitution. It is convenient to continue the factual summary by reference to the reasons of King CJ, with whom Zelling and White JJ agreed: [8]
There is, however, one factor which was not before the learned sentencing judge, at all events in the same way as it is before us. There is now evidence that the [defendant] will become entitled to a substantial sum of money, $3,490, by way of tax refund in the near future and he is prepared to apply that money to make restitution. He has accumulated some money as a result of his endeavours since he has been on bail and is able to borrow some money. As a result of all that, he is able to say that he can make full restitution by the end of August. This is a very important factor from more than one point of view. It means that the persons who have suffered loss as a result of the crimes will be restored to the position in which they were before they lost their money and will have suffered only to the extent of any inconvenience and emotional upset which was caused to them and any interest which they might lose as a result of not having the use of the money.
The new factor is important in another way because it shows that the [defendant] has made use of the time which he has had since he has been on bail to rehabilitate himself by working, and working hard, and making good use of the money which he has earned for the benefit of those whose money he had taken. This augurs well for his rehabilitation and gives this Court some ground for extending a leniency to him which was not available to the learned sentencing judge. I think that the combination of these two aspects of the new factor is sufficient to enable this Court to intervene, bearing in mind that the [defendant] was in gaol from the date upon which he was remanded for sentence, 13 March 1984, to the date on which he was released on bail, 9 May 1984, a period of two months.
[emphasis added]
[7] The Queen v Robertson (1984) 115 LSJS 51.
[8] The Queen v Robertson (1984) 115 LSJS 51 at 53.
In 1988, the Sentencing Act was enacted, and set out in section 10 a list of matters to which a court should have regard when sentencing. Of relevance to the present proceedings is section 10(1)(e), which provides:
A court, in determining sentence for an offence, should have regard to such of the following matters as are relevant and known to the court:
…
(e)     any injury, loss or damage resulting from the offence;
and section 10(1)(f)(i), which provides:
A court, in determining sentence for an offence, should have regard to such of the following matters as are relevant and known to the court:
…
(f)    the degree to which the defendant has shown contrition for the offence—
(i)    by taking action to make reparation for any injury, loss or damage resulting from the offence
It is relevant to observe that section 10(1)(e) puts into statutory form the first emboldened section in Robertson, and section 10(1)(f) the second. In this way, the Sentencing Act has adopted the Robertson principles.
In O’Keefe,[9] Lee AJ, with whom Gleeson CJ and Priestley JA agreed, made similar observations with regard to the significance of restitution:
[T]he really significant factor is that this is a case in which the applicant has done everything humanly possible to undo the wrong which she has done. She has, over a period of time, sought to obtain a loan for the full amount. She has obtained it and she has paid the money back. She has placed upon her shoulders a debt which will be with her for another 15 years. She herself, although she has clerical qualifications, can earn an income possibly of $20,000. Her husband is a truck driver who can contribute a modest $450 only and it is quite apparent that those two persons, even jointly, will have a very difficult time ahead in meeting the demands over the period in question.
She has in fact undertaken to sacrifice her own interests for the benefit of the person whom she has defrauded and that is the circumstance in my view which is really significant in this case. One often strikes cases involving this class of offence where promises are made that the money will be paid. Sometimes those promises are fulfilled. One strikes cases where the money is repaid but not by the sacrifice of the applicant, but by the intervention of a father or a relative or a close friend.
This case therefore does stand in a very exceptional light and in my view the sentence imposed, although a comparatively light sentence in the light of the money involved, is altogether too high in regard to this applicant. She has been in prison now for a period of four months and it seems to me that the appropriate punishment, bearing in mind her undoubted contrition and the fact that she has, by her own efforts, repaid the whole of the money, would be a sentence of six months imprisonment. That would mean that she would continue in prison for only another two months and then be released.
[9] O’Keefe (1992) 60 A Crim R 201 at 204-205.

In SA Police v John,[10] King CJ, with whom Duggan and Nyland JJ agreed, reiterated the importance of restitution when sentencing. The Court declined the Crown’s application to increase the head sentence and non-parole period given to a solicitor convicted of dishonesty offences. However, the Court allowed the Crown appeal in setting aside an order suspending the sentence. King CJ described the sentence as “extremely lenient”, but considered the full restitution that was made to be a significant mitigatory factor that warranted a lenient sentence. His Honour observed:[11]
In the end, after hesitation, I have been influenced by the matters in mitigation to come to the conclusion that this court should not interfere with the head sentence or the non-parole period. The matters which particularly influence me in that regard are the plea of guilty, the fact that the appellant was so candid when apprehended and that he made full restitution.
The fact that somebody has made the sacrifice necessary to enable full restitution to be made is an important consideration and, of course, this court encourages that course to be taken.
[10] SA Police v John (1995) 181 LSJS 20.
[11] SA Police v John (1995) 181 LSJS 20 at 22.
In Radjevic v Police,[12] the appellants pleaded guilty to dishonesty offending. They were sentenced by a magistrate to 18 months’ imprisonment. The sentences were not suspended. Restitution was ordered in the total amount of the defalcations. Both appellants appealed. Pending appeal, the appellants were able to obtain a loan through an employer, thereby ensuring that their victims might receive full restitution. The loans were dependent on the appellants not being required to serve a term of immediate imprisonment, so they could undertake employment with the lender. It was held that the appellants’ offer would restore the victims to the position they were in before they lost their money and goods, such that they would be left with little more than inconvenience and any interest incurred as a result of not having the use of their money. It was also recognised that there was a further benefit in that the restitution would be made promptly. Debelle J concluded that the offer to make full restitution was an important factor when determining an appropriate sentence. His Honour commented that restitution does not automatically entitle a defendant to a suspension of a sentence of imprisonment. He observed that in cases where substantial sums are involved, and where there has been a deliberate and serious scheme of dishonesty, it may not be desirable to suspend a sentence of imprisonment.
[12] Radjevic v Police (1997) 67 SASR 478.
Radjevic is an illustration of the application of the Robertson principles to unusual factual circumstances. In particular, it illustrates the importance of restitution in its operation of restoring the losses sustained by the victim. It is direct recognition of the relevance of restitution in considering the application of section 10(1)(e) of the Sentencing Act. The Magistrate’s reference to this authority, with its unusual circumstances rather than the broader discussions of principle in Robertson and the later Court of Criminal Appeal authorities, may provide an explanation for his approach to restitution.
In Kovacevic v Mills,[13] Doyle CJ and Mullighan, Bleby and Martin JJ addressed reparation when dealing with a Commonwealth offence,[14] observing:
Lastly, we mention reparation. Pursuant to s 16A(2)(f)(i) [of the Crimes Act 1914 (Cth)], the Court is obliged to take into account any action by the appellant to make reparation in the context of contrition. As has been mentioned, the total amount received has now been repaid. It may be said that in arranging for reparation to be made, the appellant was doing no more than meeting an obligation imposed by law and repaying what he had illegally received by his own conduct. It should also be said that offenders cannot buy their way out of severe punishment by repaying what they should never have received. However, the Courts are obliged to regard reparation as a positive matter so far as an offender is concerned. … There are cases where reparation has been the decisive factor in the exercise of the discretion to suspend a custodial sentence: see The Queen v Robertson (1984) 115 LSJS 51. … In Radjevic v Police (1997) 67 SASR 478 Debelle J regarded reparation favourably even though, as here, it was made from money borrowed.
In our view, the making of reparation is an important factor in the present circumstances and it should be acknowledged in a positive way in the sentencing process. Standing alone, it should not be regarded as decisive, but along with the other matters which have been mentioned, it justifies an order for immediate release.
[13] Kovacevic v Mills (2000) 76 SASR 404 at [81]-[82].
[14] The relevant Crimes Act 1914 (Cth) provisions are directly comparable to those of the Criminal Law (Sentencing) Act 1988 (SA).
In the present case, the Crown referred to the decision of Bleby J in Brooks v Police.[15] In the course of his reasons, Bleby J made reference to the decisions in Kovacevic and Robertson. His Honour’s reasons were directed to section 10(1)(f) of the Sentencing Act, and did not address section 10(1)(e). The Crown inferred from the observations of Bleby J that in considering restitution, it was not of particular moment that the effective restitution was to substantially reduce the losses of the victims. In my view the observations of Bleby J did not seek to downplay the significance of section 10(1)(e). His Honour’s reference to Robertson and Kovacevic makes this plain. A similar observation may be made about the recent decision in Musolino,[16] where the Court’s attention was focussed on the aspects of contrition and remorse. I do not consider that either decision erodes the principles set out in Robertson and Kovacevic.
[15] Brooks v Police (2000) 76 SASR 279.
[16] Workcover Corporation v Musolino [2007] SASC 249.
A similar approach to that identified in Robertson and Kovacevic has been adopted in Queensland. In Allen,[17] the Court of Criminal Appeal discussed the effect that full restitution should have on the sentence to be imposed. Jerrard JA observed:[18]
[T]he sentences imposed in [previous decisions] do demonstrate a consistent recognition by this Court of the significant benefit that restitution in full actually gives to victims of dishonest behaviour and to the community.
Restitution in full is a means of demonstrating that crime need not pay and sometimes does not pay and restitution can also be evidence of remorse quite independently from the benefit that it gives to the victim. That benefit is appropriately extended to the person being sentenced usually by significant reduction in any actual term of imprisonment imposed.
In this matter I consider that [the appellant’s] significant position of trust does make the head sentence of four years appropriate but the fact that restitution in full was made and made by the sale of his family’s home, means that the period of actual imprisonment to be served is manifestly excessive when compared to the other decisions of this Court and relatively recent ones too, to which I have referred.
McMurdo P, in agreeing with the orders proposed by Jerrard JA, observed:[19]
Whilst Courts would never allow wealthy offenders with the capacity to pay compensation to buy their way out of an appropriate custodial sentence, restitution is, as the respondent concedes, a relevant mitigating factor in that it compensates the victim and benefits society and is often, as here, a tangible demonstration of genuine remorse.
[17] R v Allen [2005] QCA 73.
[18] R v Allen [2005] QCA 73 at 11.
[19] R v Allen [2005] QCA 73 at 12.
This review of authority allows the following summary of the relevant principles:
-Statutory recognition has been given to the relevance of restitution in the sentencing process through sections 10(1)(e) and 10(1)(f) of the Sentencing Act.
-These statutory provisions provide a recognition of the common law principles identified in Robertson.
-A sentencing court, as observed in Kovacevic, must treat restitution as mitigatory. This is because the making of restitution impacts directly on the extent of any loss suffered, and must be brought to account by reason of section 10(1)(e).
-The circumstances under which restitution is made may demonstrate contrition and remorse. These are matters of mitigation. As explained in Robertson, this is because contrition and remorse suggest that there are good prospects for rehabilitation.
-As observed in John, O’Keefe and Allen, restitution may be of particular significance if accompanied by circumstances of personal sacrifice. Such circumstances may lead to the suspension of a term of imprisonment, or alternatively may operate to substantially reduce the time to be spent in custody.
Restitution – The Present Case
As earlier observed, full and substantial restitution was made in the present case. An amount of $129,736.46 has been paid.
The Magistrate’s sentencing remarks suggest that he gave little weight to restitution as a mitigatory factor. Restitution played little or no part in the Magistrate’s determination of the head sentence of imprisonment. This approach overlooked the statutory provisions and the relevant authorities.
When addressing the question of suspension, the Magistrate discussed restitution in a little more detail. He placed emphasis on the appellant’s ability to make restitution, in circumstances where he inferred that the fact of restitution was of little significance. No reference appears in the sentencing remarks to remorse or contrition that may be inferred from the making of substantial restitution. The Magistrate did not appear to place weight on the making of restitution. Rather, he concentrated on the inconvenience and emotional upset of the victims and the loss of the use of the moneys.
The Crown accepted that the Magistrate’s observations in regard to restitution did not appear to address the principles to be applied as identified in Robertson. However, it was argued that it had not been established in the present case that the restitution demonstrated any significant element of contrition or remorse. It was suggested that the circumstances involved a defendant with assets meeting an obligation, and little more. Accordingly it was said that little weight should be attached to the restitution as a mitigatory factor.
Restitution occurred on 10 October 2007, when the appellant paid $129,736.46 to her former employer. It is clear that the making of restitution was not a belated attempt at avoiding imprisonment. There had been lengthy correspondence between the solicitor for the employer and the solicitor for the appellant, during the course of which the amount claimed increased. This was the result of an ongoing investigation. Before sentencing, the appellant had committed to make restitution in the amount claimed, and had commenced the process necessary to raise the required money.
It is relevant to record that the appellant had recourse to her interest in her matrimonial home to raise the moneys by way of mortgage. The appellant disposed of her half of the family home to her husband, with the money required for restitution being raised by way of mortgage over that property.
In my view, the Magistrate placed inadequate weight on the fact that the appellant had made substantial restitution, and on the steps taken with respect to the matrimonial home to allow the raising of the necessary moneys. The Magistrate appears to have overlooked the observations in Robertson, and their direct application to the present case. There was a misapplication of sentencing principle. For this reason alone, the appeal should be allowed and the appellant re-sentenced. However, there remain a number of further matters for consideration.
It is convenient to now discuss the evidence tendered before this Court. Following the initial detection of the appellant by her employer, with respect to one act of dishonesty, a full-scale investigation was undertaken. Solicitors for the employer were in correspondence with the appellant’s solicitor over the ensuing 12 months. The investigation by the employer’s accountants continued to reveal the extent of the appellant’s defalcations. It was not until July 2006 that the losses were finally totalled at $117,207.42. At this time there was still an outstanding claim with respect to the investigation expenses, full particulars of which were not provided until August 2006. The appellant’s solicitors responded in late August 2006, advising in open correspondence the appellant’s agreement to make restitution in the total amount claimed of $129,736.46. They advised that their client would need to raise money to make restitution, and that that process had commenced. The documents relating to the raising of the moneys required, from the appellant’s matrimonial home, were prepared and signed. The appellant was then dealt with by the Court on 13 September 2007, when restitution was ordered to be made in the amount claimed.
This history allows the conclusion that the appellant was intending to make restitution from the time of the detection of her dishonesty. However, it was necessary to wait on the investigation to ascertain the amount to be the subject of restitution. Once this was established, the appellant agreed to pay the full amount claimed. Immediate steps were taken to raise the required moneys. This history further reveals a desire by the appellant to face up to her wrongdoing and to address the losses of her victims. It provides evidence of her preparedness to dispose of her interest in her matrimonial home, and to raise money by mortgage on that property. There is no suggestion that apart from the matrimonial home, the appellant had any significant assets. All of this was clear evidence of contrition and remorse. Her conduct may be compared to the conduct of the defendants in John, O’Keefe and Allen.
Personal Deterrence
Counsel for the appellant further complained that the Magistrate placed too much weight on the need for the sentence to reflect the need for personal deterrence. In the course of his sentencing remarks, the Magistrate observed:
Your current position in the Port Lincoln community might well encourage you to leave in due course and go somewhere else to live and work. Those who might employ you in those circumstances would be justifiably resentful of the legal system if inadequate steps were taken to discourage you from offending again.
The Magistrate had regard to the possibility that the appellant would leave Port Lincoln, live and work elsewhere, and act dishonestly toward another employer. The observation suggests that the Magistrate took the view that there was a need to personally deter the appellant from further offending.
A psychological report placed before the Magistrate indicated that the appellant suffered from symptoms that satisfied the diagnostic criteria for “Adjustment Disorder with Mixed Anxiety and Depressed Mood, Post Traumatic Stress Disorder and Borderline Personality Disorder”. In the opinion of the psychologist, these features were “likely to [have been] evident throughout her offending”. Later in his report the psychologist expressed the opinion that “provided [the appellant’s] issues are addressed from a therapeutic perspective, her potential risk of recidivism is small”.
The appellant was born in Port Lincoln, married a Port Lincoln man and raised her family in Port Lincoln. Her widowed mother resides in Port Lincoln. The appellant has recently, while on bail, taken employment with a major retailer in Port Lincoln, who is well aware of her offending circumstances. A reference from that employer was tendered on the hearing of the appeal and spoke of the preparedness of that employer to continue the employment of the appellant should she be free to do so.
When all the circumstances are considered, there was a clear basis for concluding that the risk of further offending was minimal and that there was little need for personal deterrence.
In my view, the Magistrate placed too much weight on the suggested need for personal deterrence.
The Notional Starting Sentence
A submission was advanced by the appellant that the Magistrate erred in failing to identify the process by which the starting notional head sentence of seven years’ imprisonment was fixed. Counsel referred to the reasons of White J, with whom Doyle CJ and Sulan J agreed, in Waugh,[20] and in particular the following emboldened passage:
In the application of s 18A of the Sentencing Act, it is usually desirable to determine notional individual sentences for each offence, then to determine whether those sentences should be cumulative or concurrent and then to determine the aggregate sentence, but there are cases in which that approach is inappropriate or unnecessary. In relation to such circumstances, the Chief Justice in R v Symonds said:
The approach outlined in Major may be unnecessary because the case is so straightforward that the separate consideration of the individual sentences is an unnecessary elaboration. The approach outlined in Major may be unnecessary because the totality principle will so obviously operate to reduce the otherwise appropriate sentence that it becomes pointless to consider and to assemble the individual sentences that would otherwise be imposed. There may be other situations when it will be unnecessary to follow the approach outlined in Major. Subject to that, however, I adhere to what I said in Major and to the desirability, as a general rule, of relating a single sentence to be imposed to the individual sentences that would otherwise be imposed.
Whichever approach is adopted, it is necessary for the sentencing judge to provide an adequate explanation for the sentence imposed. Such an explanation is intrinsic in the approach identified in R v Major. That is one of the advantages of that approach. When a judge goes directly to a single sentence, some explanation of how that single sentence is derived is still necessary. That might be given, for example, by identifying appropriate individual sentences for the more serious offences for which the sentence is imposed, and by identifying whether the judge considers that they should be served cumulatively or concurrently. Alternatively, the explanation may be given by stating a sufficient number of individual sentences so as to indicate that the judge regards any further identification of individual sentences unnecessary. This may be because the imposition of such sentences would be crushing or might lead to a sentence which did not reflect the overall seriousness of the criminality involved.
[emphasis added]
[20] R v Waugh (2005) 93 SASR 274 at [42]-[43] (footnotes omitted).
This submission advanced by the appellant overlooks the approval in Waugh, and numerous other authorities, of the observations in Symonds,[21] where Doyle CJ, with whom Prior and Mullighan JJ agreed, observed:
In Major the Court was not stating a process that must be followed in the sense that failure to follow it is itself an error of law in the sentencing process. The Court did no more than remind sentencing judges of the need to relate a single sentence imposed under s 18A of the Criminal Law (Sentencing) Act 1988 (SA) to the sentence that would have been imposed if the power conferred by s 18A were not available. What was said in Major was intended to guide sentencing judges in the exercise of the power conferred by s 18A, but not to impose upon them a rigid formula that must be followed.
In some cases the only safe course to follow will be to approach the sentencing process initially as one would do so if the powers conferred by s 18A were not available. The power conferred by s 18A will then be used to express the sentence as a single sentence, rather than as a number of separate sentences with orders as to concurrence and accumulation as may be appropriate. But there will be other cases when this approach is not necessary, and it is appropriate and convenient to go directly to the single sentence to be imposed.
[21] R v Symonds [1999] SASC 217 at [21] – [22].

In Nylander,[22] Bleby J, with whom Prior and Sulan JJ agreed, having referred to the above observations in Symonds, then commented:
There comes a point where the addition of individual notional penalties to arrive at a starting point from which a discount for totality is then made creates an air of unreality about the sentencing process, especially when the notional total, as it sometimes does, exceeds the normal life expectancy of an average person. The total was not as high as that in this case, although it exceeded the life expectancy of an average male of his age by something of the order of 25 years: Australian Life Table (Males) 1997-99.
If the total notional sentence is way beyond the life expectancy of the defendant, the process of applying a discount from an unattainable starting point so lacks reality that the process ceases to have any relevance. In some cases, the discount will have to be far greater than the sentence, and the very notion of a discount is inappropriate. Indeed, it may lead to an injustice of the opposite kind to that which occurred in R v Major.
In my opinion, this is one of those cases where it was inappropriate to embark on the approach outlined in R v Major. The adherence to that approach seems to have induced a sentencing error.
The total notional sentence arrived at by the Judge was, in the circumstances of the appellant, particularly of his age, an unreal starting point, and demonstrated the inappropriateness of this approach taken in R v Major. The use of that starting point with the application of a discount of a proportion of that total resulted in a head sentence which was manifestly excessive in all the circumstances.
In determining an appropriate penalty in a case like this one can only do the best one can to make some overall assessment of the seriousness of the total offending and to strike a balance with the relevant personal circumstances of the defendant.
[22] R v Nylander (2003) 228 LSJS 24 at [81] – [85].
In my view there is no substance to this complaint. An accumulation of the maximum penalty that could be imposed by a magistrate in relation to each of the offences of which the appellant was convicted would lead to a maximum sentence of many hundreds of years. If one had regard to the maximum penalty that might be imposed by a judge, that total maximum sentence would be substantially more than a thousand years. As pointed out by Doyle CJ in Symonds, in these circumstances it becomes pointless to consider and assemble individual sentences. Further, as Bleby J pointed out in Nylander, all that one can do in these circumstances is to make an overall assessment of the seriousness of the total offending, and to strike a balance with the relevant personal circumstances of the defendant. I do not understand the observations in Waugh to in any way detract from these observations. The remarks in Waugh simply provide examples of other approaches that a sentencing judge might adopt.
Two Further Matters
Before coming to discuss the appropriate sentence, two further matters need to be discussed.
The appellant submitted that the Magistrate did not have power to order restitution of $129,736.46 pursuant to section 52 of the Sentencing Act. It was submitted that restitution could only be ordered with respect to an amount of $117,207.42, being the amount of the defalcations. It was said that the expenses of the investigation could be ordered as “compensation” pursuant to section 53 of the Sentencing Act. The Crown accepted that this was correct, and submitted that this Court has power to amend the form of the order on appeal. The appellant took no objection to an appropriate order being made under section 53.
Section 52(1) of the Sentencing Act provides:
Where the offence of which the defendant has been found guilty, or any other offence that is to be taken into account by the court in determining sentence, involves the misappropriation of property, the court may order the defendant, or any other person in possession of the property, to restore the property to any person who appears to be entitled to possession of the property.
That part of $129,736.46 related to investigation expenses could not be the subject of an order pursuant to section 52. However, there is a statutory power to make an order with respect to those expenses. Section 53 of the Sentencing Act relevantly provides:
(1)Subject to this section, a court may make an order requiring a defendant to pay compensation for injury, loss or damage resulting from the offence of which the defendant has been found guilty or for any offence taken into account by the court in determining sentence for that offence.
…
(3)Compensation under this section will be of such amount as the court considers appropriate having regard to any evidence before the court and to any representations made by or on behalf of the prosecutor or the defendant.
…
(5)The power of a court to award compensation under this section is subject to the following qualifications:
…
(c) the Magistrates Court may not award more than $20 000 (or if a greater amount is prescribed—the prescribed amount) by way of compensation.
(7)Compensation may be ordered under this section in relation to an offence despite the fact that compensation may be ordered under some other statutory provision that relates more specifically to the offence or proceedings in respect of the offence.
…
It may well have been within power to make the entire order for repayment, pursuant to section 53 of the Sentencing Act. However, both parties agreed that it was appropriate to make the order for restitution under section 52 and for compensation in respect of investigation expenses under section 53.
Counsel for the Crown raised a further issue. It was said that the Magistrates Court had recorded an inadequate amount to be paid by way of victims of crime levy. It was pointed out that the correct amount was $120 per offence. Counsel for the appellant accepted that the Crown’s submission was correct.
A levy is provided for by section 32 of the Victims of Crime Act 2001 (SA). That section provides:
(1)     A levy is imposed for the purpose of providing a source of revenue for the Fund.
(2)Subject to subsection (3) and any exceptions prescribed by the regulations, the levy is imposed on—
(a)     all persons convicted of offences after the commencement of this section (whether the offence was committed before or after the commencement of this section); and
(b)     all persons who expiate offences under expiation notices issued after the commencement of this section.
(3)A levy is not imposed on a person convicted of an offence if the person has paid the levy under an expiation notice issued for the same offence.
(4)     The amount of the levy is to be fixed by regulation.
(5)The amount of the levy may vary according to any one or more of the following factors:
(a)     the nature of the offence;
(b)     whether the offence is a summary or an indictable offence;
(c)     whether or not the offence is expiated;
(d)     whether or not the offender is an adult;
(e)     variations in the consumer price index.
(6)     If a levy is payable under this section by a person who expiates an offence—
(a)     the amount of the levy must be shown on the expiation notice; and
(b)     despite any other law, the offence will not be regarded as expiated, and no immunity from prosecution will arise, unless the levy has been paid.
(7)     If a levy is payable under this section by a person who is convicted of an offence—
(a)     the amount of the levy must be shown in—
(i)     any formal record of the conviction and sentence; and
(ii)    any notice of the conviction and sentence given to the defendant; and
(iii)any warrant of commitment issued for the imprisonment of the defendant for the offence; and
(b)     the court may not, at the time of convicting or sentencing the defendant for the offence, reduce the levy or exonerate the defendant from liability to pay it; and
(c) the levy is recoverable under the Criminal Law (Sentencing) Act 1988 .
(8)Despite any other provision of this section, the Governor may remit a levy, or a part of a levy, payable by a person under this section.
It is to be observed that there is an obligation on the Court to record the levy. This is an administrative duty. In the ordinary course, this is a task to be undertaken by those preparing the record of the Court, a document later signed by the presiding judicial officer. It is not a judicial act.
As there is an apparent error in the record in this case, these reasons will be drawn to the attention of the criminal registry so that the appropriate record can be prepared. Both counsel agreed that this was the appropriate course to be followed.
Conclusion On These Two Matters
As earlier observed, the Magistrate failed to recognise and apply provisions of the Sentencing Act and failed to have regard to principles set out in the relevant authorities when considering the significance of the restitution to be made by the appellant. The Magistrate also gave undue weight to the need for personal deterrence. For these reasons it is necessary to re-sentence the appellant.
A challenge was made to the Magistrate’s decision not to suspend the sentence of imprisonment, but as the appellant is to be re-sentenced it is unnecessary to further consider that challenge. The discretion to suspend will need to be considered afresh.
The appellant also submitted that the sentence imposed by the Magistrate, when compared to other cases, was demonstrably excessive. In the course of submissions the Court was taken to a number of other sentences in respect of dishonesty offending. Unsurprisingly, the circumstances of the offending and the personal circumstances of the offenders were materially different. This Court has pointed out on many occasions the lack of utility in these comparisons. In O’Donnell,[23] Hogarth, Zelling and Wells JJ observed:
This is the position in practically every case where this type of argument is put forward, that the facts of the cases cited are different, the circumstances in which the offence was committed are different, the offender is different, and the matters which have to be taken into consideration by the Judge are different. It is but rarely that lists of previous sentences, with short notes of the facts appended, are of use to a Court of Criminal Appeal.
[23] R v O’Donnell (1974) 7 SASR 114 at 115; cited with approval by Mullighan J in R v Hitchens (1995) 184 LSJS 337.
More recently, the Court of Appeal of Western Australia confirmed this approach in Marshall v Western Australia,[24] where Miller AJA observed:
It has been said on many occasions that there is little value in comparing sentences imposed in other cases without ensuring that one is comparing “like with like”. I said as much in Watt … at [12]. Rowland J (with whom Ipp J agreed) said much the same in Bellissimo (1996) 84 A Crim R 465, at 468-469:
It is generally impossible to make sensible comparisons when dealing with the antecedents of persons who have been before the courts.
…
In the end, one simply considers all of the facts and circumstances to ascertain whether it can be shown in this case that the learned sentencing judge’s discretion has miscarried to the extent that it can be said that the sentence is manifestly excessive.
As the Court pointed out to counsel for the appellant during the hearing of the appeal, this is not a case in which a comprehensive analysis of comparable sentences in like cases was put before the Court. Counsel for the appellant disavowed any assurance that he had incorporated all the known cases, and, in the absence of such an analysis, it is difficult to deal with a ground of appeal which contends that the sentence imposed upon the appellant “was manifestly excessive having regard to … sentencing patterns in comparable cases”.
As the appellant is to be re-sentenced, it is unnecessary to further address this issue.
[24] Marshall v Western Australia [2007] WASCA 96 at [100].
The restitution ordered by the Magistrate has been made. Although, as observed above, the order of the Magistrate in part was made pursuant to the wrong section, the appellant does not seek any relief. In these circumstances it is sufficient to note the irregularity that occurred, but otherwise make no order.
Re-sentence
I have had regard to the personal antecedents of the appellant. Those antecedents include the appellant’s personal history, the opinion of the psychologist, the restitution effected, the circumstances under which the moneys for restitution were raised, the fact of substantial restitution, including the circumstances under which it was made, and the appellant’s prospects for rehabilitation.
The appellant’s only criminal antecedent is an offence of dishonesty more than ten years ago. In 1995, the appellant pleaded guilty to dishonesty offending relating to a dealing with the one negotiable instrument. The Court exercised its discretion not to record a conviction and the appellant was released on a good behaviour bond. She complied with the terms of the bond. Notwithstanding the apparent minor nature of the offence and it having occurred well into the past, it does remain a relevant consideration. The appellant had been treated mercifully and given a warning, to which full heed was not paid.
The appellant’s offending in the present case was grave. She dealt dishonestly with her employer, with whom she had an apparently friendly relationship. She breached the trust they put in her. She breached the trust that she was given in regard to negotiable instruments in the course of her employment. These are serious matters.
This is a case in which it is appropriate to make an overall assessment of the criminal culpability of the appellant as a result of her extensive offending over a lengthy period, and to reach a conclusion as to the seriousness of that total offending. Having done so, there is a need to strike a balance with the relevant personal circumstances of the appellant. In this process regard must be had to the appellant’s pleas of guilty and the principle of totality.
In making the above assessment, I have had regard to the circumstances of the offending, and in particular to the grave breaches of trust involved over a very lengthy period. This was serious offending that called for the imposition of a term of imprisonment. The antecedents of the appellant must be considered. Her prior offending has the relevance earlier identified. Her personal circumstances, in particular as summarised in the report of the psychologist, are relevant considerations, as too are the opinions of the psychologist. It is relevant to have regard to his opinion about the appellant’s psychological state at the time of the offending, and about her prospects of rehabilitation. It is also relevant to have regard to the substantial restitution made, which in my view involved a considerable degree of personal sacrifice and does evidence genuine contrition and remorse. It is also relevant that by making restitution the appellant has restored the financial losses directly flowing from her defalcations, as well as meeting the expenses of the investigative process. However, as earlier discussed, it must be recognised that there are other losses of the victims that have not been addressed by the payment of these moneys.
In these circumstances, leaving aside the reduction to be made for the appellant’s pleas of guilty, I would fix a notional head sentence of five years’ imprisonment. However, that head sentence should be reduced by one year and three months, having regard to the pleas of guilty. The head sentence to be imposed is a term of imprisonment of three years and nine months.
This is a case where matters personal to the appellant, and in particular the fact that restitution has been made, allow the fixing of a shorter than usual non-parole period. I consider that the appellant has excellent prospects of rehabilitation and is unlikely to re-offend. The opinion of the psychologist is relevant in this regard. I propose fixing a non-parole period of 12 months.
The remaining question is whether, as a matter of discretion, this sentence should be suspended. I have reached the conclusion that, notwithstanding the appellant’s personal circumstances, and the making of restitution, the gravity of the offending was such that it is inappropriate to exercise the discretion to suspend. In particular, I do not consider that good reason exists to suspend the sentence of imprisonment to be imposed.
Conclusion
The restitution ordered by the Magistrate has been paid. In these circumstances it is unnecessary to make any order in that respect. However, as earlier observed in these reasons, it should be recognised that the Magistrate’s order, in part, proceeded by reference to an inappropriate statutory power.
The appeal is allowed. The sentence imposed by the Magistrate is set aside. The appellant is sentenced, pursuant to section 18A of the Sentencing Act, to the one penalty in respect of all the offences – a term of imprisonment of three years and nine months. I fix a non-parole period of 12 months.