Moorhead v Police No. Scgrg-99-516 Judgment No. S243

[1999] SASC 243

MOORHEAD  v  POLICE
[1999] SASC 243

Magistrates Appeals:  Criminal

1. DOYLE CJ.               This is an appeal against a sentence imposed by the Magistrates Court.

2. The appellant pleaded guilty to two charges. The first is a charge of obtaining a payment of $21,000 by fraud, contrary to s38 of the Summary Offences Act 1953. The second is a charge of attempting to obtain a payment of about $4,200 by fraud, contrary to s38 of the Summary Offences Act and s270A of the Criminal Law Consolidation Act.  The maximum penalty for the first offence is imprisonment for two years, or a fine of $8,000.  The maximum penalty for the second offence is imprisonment for 16 months or a fine of $5,333.  The magistrate imposed a single sentence of imprisonment for 12 months.  The magistrate fixed a non-parole period of six months.  He declined to suspend the sentence.  The appeal is against his decision not to suspend the sentence.

3. I will summarise the sentencing remarks of the magistrate to the extent that they disclose the circumstances of the offence.

4. The appellant was a police officer.  Despite being in financial difficulty he unwisely bought a motor car for about $27,000.  That amount may have included monies for which he was liable on an earlier vehicle.  In any event, he incurred an overall commitment of $27,000.  The full amount owing was financed by borrowing from a finance company.  The appellant insured the car with an insurance company.  He also insured his liability to pay the gap, between the value of the car and the amount owed.  The appellant’s financial circumstances worsened.  He arranged for the car to be stolen and burnt.  This was all done within about three days.  Although that is a short period of time, this cannot be called a spur of the moment matter.  The car was then stolen and burnt.  The appellant then claimed from the insurers.  One insurer paid out $21,000 to the finance company.  The other insurer was about to pay out the amount of about $4,000 when the fraud was discovered.

5. The magistrate noted that the appellant would be dismissed from the Police Force.  I am informed that that has happened.  The magistrate said, and I agree, that the appellant should have realized that the public expect high standards from a police officer and that he could not expect to remain a police officer if his offence were exposed.  The magistrate noted that an early plea of guilty had been entered, but also that the case against the appellant was apparently a strong one.

6. As I said, the magistrate considered suspending the sentence, but decided that he should not do so. The power to suspend a sentence is given by s38 of the Criminal Law (Sentencing) Act.  The court may suspend a sentence if there is good reason to do so.

7. In the present case there is nothing about the circumstances of the offence that calls for suspension of the sentence.  Consideration of the appeal turns upon consideration of the appellant’s personal circumstances.

8. It is not a question of what I would do if I were sentencing the appellant, it is a question of whether the magistrate has erred in failing to suspend the sentence.

9. But the consideration of whether the appellant’s personal circumstances amount to good reason to suspend the sentence, and require that decision, has to be approached bearing in mind the seriousness of the offence.  This is so because the interests of the community in suppressing and punishing an offence may outweigh considerations personal to the offender, and also may outweigh the community interest in rehabilitation of the individual.

10. The more serious an offence the more difficult it is likely to be to conclude that a sentence should be suspended.  But at the end of the day, the test remains the same, however serious the offence.  The question is whether there is good reason to do so.

11. The offences in the present case are very serious.  They are made more serious by the fact that the appellant was a police officer.  Had he succeeded, he was at risk of later being pressured to misuse his position in favour of those who knew of his crime.

12. A relevant and important issue is the likelihood of the offender responding to the decision to suspend the sentence and reforming himself.  In a sense, a suspended sentence is a last chance for someone whose offence warrants imprisonment.  However, one cannot simply give each offender a last chance, or even each first offender.  There has to be proper reason to do so.

13. In the light of those general remarks, I turn to the appellant’s personal circumstances.  He is still quite young, 21 years of age.  That is a factor which supports suspension.  He has no previous convictions and so has never been imprisoned before.  He pleaded guilty promptly and there is evidence to suggest genuine remorse.  I consider that there is a good chance that he will not offend again.  Each of those matters supports a decision to suspend.  As well, the appellant has suffered the penalty of a loss of the career for which he has trained and qualified.  This is a significant penalty.  In future he will find employment more difficult because of his record.  These matters are relevant considerations: see Hook v Ralphs (1987) 45 SASR 529 at 542-543. Against these matters that would support a decision to suspend has to be set the seriousness of the offence and the community interest in deterrence of such offending, and also the community interest in deterrence of criminal conduct by members of the Police Force.

14. I must say I have found the case a difficult one, but after much thought I have come to the conclusion that the magistrate was wrong.  I note, as Mr Kourakis QC pointed out, that the magistrate made no reference to the appellant’s age and previous good record, or to the fact this was a first offence.  I do not suggest for a moment that the magistrate overlooked these matters.  I am sure he did not.  But I do get the impression that the failure to refer to them indicates that the magistrate gave them inadequate weight, and may have given too much weight to the seriousness of the offence.  The matters that I have just referred to are of critical importance in this case.  The same applies to the prospects of the appellant’s rehabilitation.  There was no reference to that.  I also consider that the magistrate may have given too little weight to the appellant’s loss of career, although of course he did refer to that.  In this case I am particularly influenced by the matters to which I have referred.

15. A court will be slow to imprison a first offender, especially one who is young.  On the other hand, it is not often that a person who commits such a serious offence will receive a suspended sentence.  In the present case, I consider that the combination of these matters required the exercise of the discretion to suspend the sentence.  This will advance the community’s interest in the appellant’s rehabilitation, which will, I consider be enhanced by suspending the sentence, rather than requiring it to be served forthwith.  In that connection I refer to what was said by King CJ in Vartzokas v Zanker (1989) 51 SASR 277 at 280.

16. For those reasons I propose to allow the appeal.  I will vary the sentence by ordering that the sentence of imprisonment be suspended upon the appellant entering into a bond to be of good behaviour for a period of two years, upon his own recognisance in the sum of $750.  I do not propose to do that forthwith.  I will do that subject to the appellant entering into arrangements that are satisfactory to me for payment of restitution to the insurers.  I envisage arrangements for payment over a period of time.  Being realistic, and understanding that the appellant is in financial difficulty, there is no prospect of immediate payment and time must be allowed.  Nor is it necessarily a matter of simply what the insurance company will agree to, although if arrangements can be entered into to which the insurance company will agree, then you can expect that I would agree to them.