Matulich v Police

Case [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…

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Matulich v Police [2007] SASC 440
Case
[2007] SASC 440
Decision Date

CaseChat Overview and Summary

The case of Matulich v Police involves an appeal by Christine Ann Matulich against her sentence for multiple counts of dishonesty offences. Matulich, a former clerical assistant, was convicted of 206 counts of offences including false statements, theft, and falsifying documents, arising from her misuse of cheques at her workplace. The original sentencing by a Magistrate imposed a head sentence of five years imprisonment, with a non-parole period of two and a half years, and ordered Matulich to make full restitution to her employer amounting to $129,736.46. Matulich appealed against the sentence on several grounds, including the assertion that the sentence was manifestly excessive, the Magistrate had not properly considered the restitution made, and had mischaracterised her conduct. The appeal also questioned whether the Magistrate correctly applied the Victims of Crime Levy under the Victims of Crime Act 2001 (SA). The Court of Appeal found that the original sentence was set aside and reduced to three years and nine months. This reduction was based on several factors, including Matulich's guilty plea, personal sacrifice, contrition, remorse, psychological state, and prospects for rehabilitation. The Court emphasised the importance of the restitution made by Matulich as a mitigating factor, and that the Magistrate had erred in overemphasising the need for personal deterrence. Additionally, the Court ruled that the Magistrate had incorrectly calculated the Victims of Crime Levy, which needed to be recalculated to comply with legislative requirements. The Court thus re-sentenced Matulich, setting aside the original sentence and imposing a new sentence, while also directing the recalculation of the Victims of Crime Levy.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J
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].

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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