Morgan v Police - [2009] SASC 337

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MORGAN v POLICE
[2009] SASC 337
Judgment of The Honourable Justice Duggan
5 November 2009
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - RELEVANT FACTORS
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES
Appeal against sentence – appellant pleaded guilty in Magistrates Court to five counts of obtaining a benefit by deception and one count of creating a document to obtain a benefit by deception – Magistrate sentenced appellant to 10 months' imprisonment with respect to all counts to be suspended upon the appellant entering into a 18-month good behaviour bond – whether sentence manifestly excessive – whether Magistrate had adequate regard to appellant's pleas of guilty, psychological condition and prospects of rehabilitation – whether Magistrate erred in application of principle of totality.
Held: Appeal dismissed – circumstances of appellant’s offending warranted a term of imprisonment – appropriate to suspend the term of imprisonment – inappropriate to apply totality principle to suspended sentences imposed by different courts – relevance of appellant's psychological condition discussed.
R v Wiskich (2000) 207 LSJS 431; R v Bennett [2005] SASC 55; Mill v The Queen (1998) 166 CLR 59, considered.

MORGAN v POLICE
[2009] SASC 337
Magistrates Appeal: Criminal

DUGGAN J: The appellant pleaded guilty in the Magistrates Court to five charges of obtaining a benefit by deception and one charge of creating a document to obtain a benefit by deception.
According to the prosecution, the appellant falsified five withdrawal slips in order to obtain money from his brother’s bank account. On the first occasion on which he visited the bank he was in possession of a withdrawal slip signed by his brother so as to enable funds to be withdrawn for a specific purpose. Counsel for the appellant counsel stated that he presented this withdrawal slip to the bank pretending to be his brother. He then used the amount which he withdrew for his own purposes. He went on to present five further withdrawal slips over a period from 30 January 2009 to 10 February 2009. He forged his brother’s name on each of these withdrawal slips. He also inserted the amount to be withdrawn. On the last occasion the bank staff became suspicious and the police were called.
The total amount obtained as a result of the deceptions was $3,269. The bank has reimbursed the appellant’s brother in this amount and there is a restitution order in place requiring the appellant to repay the amount obtained to the bank.
The Magistrate sentenced the appellant to imprisonment for 10 months on all counts. He suspended the term of imprisonment upon the appellant entering into a bond in the sum of $200 to be of good behaviour for 18 months. During that period the appellant is to be under the supervision of a community corrections officer and is to obey all lawful directions including directions to attend psychological counselling and therapy.
The Magistrate referred to the fact that on 7 July 2009 the appellant was sentenced by the Chief Judge of the District Court to imprisonment for two years and five months with a non-parole period of one year and six months on an admitted charge of taking part in the manufacture of methylamphetamines. This offence took place between mid April and late May 2007. The sentence was suspended upon the appellant entering into a bond to be of good behaviour for a period of two years and 18 months. It was ordered that during that time he is to be under the supervision of a community corrections officer and is required to attend such psychological counselling and therapy as directed.
It is claimed in the notice of appeal that the sentence imposed by the Magistrate is manifestly excessive. Other grounds of appeal are that the sentencing Magistrate erred in failing to have regard or adequate regard to –
1the appellant’s pleas of guilty;
2the appellant’s psychological condition;
3the circumstances of the offending;
4the appellant’s prospects of rehabilitation; and,
5the principle of totality.
The appellant was 27 years of age at the time of sentencing by the Magistrate. These offences were committed while the appellant was on bail in relation to the drug offence which was before the District Court. During the sentencing submissions before that Court counsel for the appellant tendered a report by a psychologist, Mr Broomhall. In the report Mr Broomhall stated that the appellant presented with prominent symptoms of anxiety, depression and very low self-esteem. He said these were associated with the appellant’s very difficult upbringing in a dysfunctional home environment.
Mr Broomhall said that the appellant obtained work at a service station when he turned 20 years of age. There was a robbery at the service station when the appellant was on duty. He was threatened with violence. Mr Broomhall expressed the following opinion:
At the time of the offending behaviour which led to the current charges, Mr Morgan was suffering from symptomatology consistent with Post-Traumatic Stress Disorder (309.81) related to the armed robbery. It was noted that he had never received treatment for these symptoms and it was likely that many of the symptoms (e.g. hypervigilance, disturbed sleep, increased startle response) were still active at the date of assessment. Further, it was quite likely that at the time of the offending behaviour Mr Morgan was suffering from long standing symptoms consistent with Major Depressive Disorder, Recurrent with Moderate Functional Impairment. This was indicated by depressed mood, social withdrawal, hopelessness, low self-esteem, feelings of worthlessness and diminished concentration. In my opinion Mr Morgan continued to meet the criteria for this diagnosis at the date of assessment.
(Footnotes omitted, emphasis in original)
Mr Broomhall then referred to the circumstances of the drug offence which took place between mid April and late May 2007:
It was around the time that symptoms of both PTSD and Major Depression were active that Mr Morgan met the co-accused. He admitted that he was lonely, depressed and ‘glad for company’ despite that he was aware of the co-accused background with drugs. It appeared that the co-accused took advantage of a vulnerable, lonely young man who was eager to please. He showed poor judgment in allowing the co-accused to use a room in his flat. His emotional state was such that when offered amphetamines by the co-accused he accepted and found that not only did his immediate emotional state improve, but there were other perceived benefits including improved confidence and weight loss. These were powerful incentives to Mr Morgan and he lacked the emotional experience and intelligence to effectively remove himself from the situation. At assessment Mr Morgan expressed shame and guilt associated with his actions related to the current charges. He acknowledged his poor choices, had no further contact with the co-accused and had not by his report used illicit substances since the time of his arrest.
The report which Mr Broomhall gave in relation to the drug offences was tendered at the sentencing hearing before the Magistrate in relation to the present offences. It would appear that Mr Broomhall was unaware of these offences at the time of writing his report and the Magistrate was not provided with any report on the significance of Mr Broomhall’s diagnosis to the present circumstances. Nevertheless, Mr Clarke, for the appellant, submitted that it could be inferred from the report that the disorders referred to by Mr Broomhall were relevant to the appellant’s fraudulent dealings with his brother’s bank account.
In R v Wiskich[1] Martin J said:
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.
[1] (2000) 207 LSJS 431 at 457.
The Magistrate was not provided with an opinion which was specifically related to the present offending. In his report on the relevance of the appellant’s condition to the earlier offence, Mr Broomhall referred to the significance of the co-accused taking advantage of the appellant’s vulnerability. Contact with the co-accused gave the appellant access to drugs and, according to Mr Broomhall, he lacked the emotional experience to reject the incentives which the co-accused offered to him.
The circumstances of the present case were quite different. The appellant acted alone. He systematically embarked on a series of offences to obtain money from his brother’s bank account for his own purposes. He went to two branches of the bank and he told various lies to assist his deception. It is a matter of significance that he appeared before the Youth Court on several occasions charged with offences of dishonesty prior to the occasion on which he was a victim in the service station holdup. Mr Broomhall said that he noted no thought disorders.
In my view it was relevant to take into account for sentencing purposes any psychiatric disorder he may have been suffering from at the time of the present offences along with his disrupted home life. As the Magistrate acknowledged, the appellant may not have appreciated the full seriousness of his conduct because of his view that it was a matter between him and his brother. However, the appellant could not have failed to appreciate the fact that he was committing acts of deception to obtain money from the bank unlawfully.
The appellant claims that he intended to pay the money back to his brother. However, there is no suggestion that he had advised his brother of his intentions in this respect and his brother was unaware of the identity of the person who he discovered was making withdrawals from his bank. The appellant displayed a determination to commit serious offences while he was on bail, a consideration which was apparently unknown to Mr Broomhall.
The Magistrate referred to Mr Broomhall’s opinion in his sentencing remarks. He also quoted the Chief Judge’s remarks when sentencing the appellant for the drug offence which included an acknowledgement of Mr Broomhall’s diagnosis and the desirability of treatment. The conditions imposed by the Magistrate when suspending the sentence included a requirement that the appellant undergo psychological counselling and therapy as directed.
In my view neither the sentence imposed nor the sentencing remarks of the Magistrate lend any support to the argument that the Magistrate failed to attach relevance to the psychological report and the opinions expressed in it. In any event, the conclusions of Mr Broomhall were of limited relevance to the sentencing of the appellant in relation to the present offences.
I also reject the argument that the sentence should be reduced by the operation of the totality principle. The remarks of Doyle CJ in R v Bennett[2] are apposite:
The appellant invokes the principle of totality. In my opinion that has no part to play in this case. It cannot be said that the sentence arrived at is a crushing sentence, and of a kind that requires a further reduction on account of the totality principle. The totality principle cannot be invoked, as it sometimes is by counsel, as a routine basis for reducing an otherwise appropriate sentence. The concept of totality has little or no part to play when a sentence is imposed, exercising the powers conferred by s18A and the judge considers it appropriate to determine that sentence without attributing a notional sentence to each offence and considering whether such sentences should be cumulative or concurrent: cf R v Major (1998) 20 SASR 488; R v Place [2002] SASC 101; (2002) 81 SASR 395 at [114].
In arriving at a sentence without determining the sentence that each offence will attract separately, the judge will necessarily have regard to the total period of imprisonment that is appropriate. No further reduction under the totality principles should usually be called for.
[2] [2005] SASC 55 at [15]-[16].
During argument the question arose whether, in considering the principle of totality, regard should be had to the possibility of the sentence imposed for the drug offence being served cumulatively on the sentence for the present offences or vice versa in the event of a revocation of the suspensions of those sentences consequent upon a breach of the bonds.
In my view it would be inappropriate to apply the totality principle to suspended sentences imposed by different courts. The situation is not analogous to the case of immediate sentences of imprisonment imposed by different courts as discussed in Mill v The Queen.[3] It could not be said in advance whether, and if so, when such sentences would come into effect. Even if the sentences in the present case had not been suspended, I do not consider that the principle of totality would have required a reduction in the sentence imposed by the Magistrate by reason of the head sentence fixed by the Chief Judge.
[3] (1988) 166 CLR 59.
There was criticism of the Magistrate for not identifying the extent of the reduction which he allowed for the plea of guilty. Appellate courts have stressed on a number of occasions the desirability of following this practice. An allowance of 20 to 25 per cent would have been appropriate in the present case. I have taken this into account in assessing whether the sentence was manifestly excessive.
In my view the sentence imposed by the Magistrate was within the appropriate range having regard to the circumstances of the offence and the offender. It appears that the sentence was suspended because of the personal circumstances of the appellant, the appellant’s psychiatric condition and the approach taken to these considerations by the Chief Judge. In my view the circumstances did not also warrant a lesser period of imprisonment than was imposed by the Magistrate.
The appeal will be dismissed.