Nguyen v POLICE - [2009] SASC 255

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
NGUYEN v POLICE
[2009] SASC 255
Judgment of The Honourable Justice Sulan
20 August 2009
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
Appeal against sentence - appellant found guilty of 23 counts of theft - appellant sentenced to 12 months' imprisonment with a non-parole period of six months' imprisonment - appellant ordered to make restitution payments - whether Magistrate erred in not suspending sentence - appeal allowed - good reason exists to suspend sentence - Magistrate erred in not giving sufficient weight to the appellant's requirement for ongoing treatment of his psychological problems and likely effect of an immediate custodial sentence - appellant resentenced to 11 months and two weeks' imprisonment - sentence suspended upon appellant entering into a bond to be of good behaviour for two years.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
R v Telford (2005) 242 LSJS 33; R v Powell (2001) 81 SASR 9; R v Davies (1996) 88 A Crim R 226, considered.

NGUYEN v POLICE
[2009] SASC 255
Magistrates Appeal

SULAN J: Nam Hoang Nguyen was convicted of 23 counts of theft. At the time of the offences, he was employed as a bank officer with BankSA. Between 11 March 2005 and 20 March 2005, the appellant used the debit card of a customer, whom he had served on an earlier occasion to effect 20 cash withdrawals totalling $10,000. On 24 and 25 June 2006, the appellant used the credit card of another customer to withdraw cash of $600.
The appellant was sentenced to a total of 12 months’ imprisonment with a non-parole period of six months’ imprisonment. The appellant abandoned the ground of appeal that the sentence is manifestly excessive. He submitted that the Magistrate erred in not suspending the sentence. On 20 August 2009, I allowed the appeal. I re-sentenced him to 11 months and two weeks’ imprisonment, and suspended the sentence upon the appellant entering into a bond to be of good behaviour for two years. That sentence took into account the 14 days the appellant had spent in custody. The appellant agreed to be supervised by a Community Corrections Officer, and to undergo such psychological or psychiatric treatment as directed by that officer. The order that he pay compensation of $10,600 remains. I now publish my reasons.
Background
The appellant was convicted after a trial in the Magistrates Court. The appellant made restitution of $4,500 prior to being sentenced. He was unable to make further restitution as, by that stage, he was unemployed, having lost his position at the bank. He continues to rely on, Centrelink benefits. I am informed by his counsel that arrangements have been made with the Fines Unit to continue to make compensation payments in favour of the bank to pay off the balance of monies still owing to the bank.
The Magistrate imposed convictions on all counts. As to the offences which occurred between 11 March 2005 and 20 March 2005, the Magistrate imposed one penalty, pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”), of nine months’ imprisonment. In respect of the offences which occurred in June 2006, the Magistrate again imposed one penalty pursuant to s 18A of the Act of three months’ imprisonment, to be served cumulatively upon the nine months’ sentence of imprisonment imposed for the 2005 offences. That resulted in a total of 12 months’ imprisonment. The Magistrate fixed a non-parole period of six months’ imprisonment.
The Magistrate considered whether there was good reason to suspend the sentence. He said:
I have given anxious consideration to the question of suspension. In my view, factors personal to you are outweighed by the seriousness of your conduct. I am unable to find good reason to suspend the gaol term and I decline to do so.
He directed that the sentence and non-parole period commence from the day of sentence on 11 June 2009.
The appellant was taken into custody and released on bail, pending appeal, on 25 June 2009, having spent 14 days in custody.
The offending commenced when the appellant was 23 years of age. He was 27 years of age when the Magistrate sentenced him. When the Magistrate sentenced the appellant, no explanation was given for the offending. At that time, the appellant was in denial. He had no criminal record.
The appellant resides with his parents, who are divorced but live in the same house. The situation at home is difficult for the appellant, as his parents do not talk, although they live in the same house. The appellant has a partner of five years’ standing, who also lives at his parents’ home. The appellant has not worked since losing his position with the bank. He is undertaking tertiary studies in marketing, and relies upon Centrelink benefits.
The Magistrate had regard to a report of Dr Carol Cayley, a psychologist. Dr Cayley obtained a personal history of the appellant. He was born in Vietnam on 9 April 1982 and, after spending two years in a refugee camp in Indonesia, came to Adelaide with his father in 1992. His mother came to Australia in 1993. He has a younger sister who was born in 1994.
The appellant has completed a Diploma of International Business at TAFE, and a Bachelor of International Business degree at Flinders University. He has completed courses in finance and obtained a Graduate Certificate in Applied Finance and Investment. He is currently studying for a Master of Business Administration degree at the University of Newcastle. Prior to obtaining employment as a bank teller and commercial lending support officer, he undertook various unskilled jobs.
When the appellant was 18 years of age, he attempted suicide by overdosing on antidepressants. He has been prescribed medication and, although he had psychological counselling at school, he had not consulted a psychologist or psychiatrist prior to this matter coming to light. The appellant has suffered extreme stress since his offending was discovered. The stress of the prosecution has had a severe effect upon the appellant’s mental health.
Dr Cayley concluded that he is a person of average intellect who, at the time of examination, was suffering symptoms of depression and severe anxiety and stress. She considered that he would benefit from referral to a clinical psychologist for ongoing treatment of his psychological problems.
The appeal
Counsel for the appellant sought to tender an affidavit of the appellant, which contained material information which had not been before the Magistrate. Counsel for the Crown did not object. In the affidavit, the appellant admitted the offending for the first time. He deposed that there was disharmony within his family and that this resulted in him playing poker machines regularly in order to be away from the family home. He eventually lost all of his savings. He committed the offences to fund his gambling habit. He said that he was too ashamed to discuss the problem with anyone.
When he was imprisoned, he thought that it was too late to admit that he had a problem. He was placed on suicide watch because he had attempted suicide on two prior occasions. He was told by other prisoners that, if he admitted ongoing mental health problems, he would be placed in maximum security in G Division at Yatala. Therefore, he did not speak to anyone about his problems. At the appeal hearing when I sought an explanation about the appellant’s conduct, his counsel obtained further instructions at which time he admitted his offending and the reasons for it.
Although the Magistrate referred to Dr Cayley’s report, he did not address what I consider to be the most important aspect of the report, being that the appellant requires ongoing treatment for his psychological problems. The Magistrate did not consider the effect an immediate custodial sentence would have upon the appellant’s mental health problem. Counsel for the appellant, with no objection from counsel for the Crown, tendered an addendum report from Dr Cayley in which Dr Cayley expressed the opinion that an immediate custodial sentence is likely to result in a further deterioration of the appellant’s mental health, and that he is likely to be at risk of self-harm.
When considering whether good reason existed to suspend the sentence, the Magistrate did not give sufficient weight to the appellant’s psychological condition and that it requires immediate ongoing treatment. An immediate custodial sentence will deprive the appellant of immediate treatment, and his condition will be exacerbated by his incarceration. It follows that, in deciding not to suspend the sentence, the Magistrate’s discretion miscarried.
Resentencing
I am required to re-sentence the appellant. In so doing, I have regard to the matters to which I have earlier referred. I observe that the prosecutor at first instance did not oppose the Magistrate ordering that the sentence be suspended. Although the attitude of the prosecutor is not binding, it is a relevant factor to which the Court can have regard when considering whether good reason exists to suspend the sentence. Counsel for the Crown conceded that, having regard to the additional material tendered before me, good reason did exist which enlivened the discretion to suspend the sentence.
I have had regard to the appellant’s age, the circumstances in which he came to Australia, his difficult family life, that he has no previous convictions, that partial restitution has been made, and payments towards compensation continue.
I have also had regard to the reasons for his offending and to his gambling problem, which was partly due to his unhappy domestic situation.
Although a gambling addiction is relevant in deciding an appropriate sentence, it is not uncommon in cases of fraud or theft in the course of employment, or in the case of persons who are in a position of trust, that part of the reason for their offending is a gambling addiction. A defendant’s gambling problem may provide an explanation for a defendant’s offending, but it must always be weighed against other factors in assessing the offender’s moral culpability.[1]
[1] R v Telford (2005) 242 LSJS 33, 44 – 32 counts of fraudulently obtaining property, 20 counts of falsification of accounts, 11 counts of forgery totalling in excess of $22 million.
In many cases which have resulted in immediate custodial sentences, the level of moral culpability has been high, having regard to the size of the defalcations, the number of victims, the period over which the offending occurred, and the ability of the offender to make restitution.[2]
[2] R v Powell (2001) 81 SASR 9 – 52 counts of Falsification of Account over two-year period, with a total loss of about $700,000.
R v Davies (1996) 88 A Crim R 226 – 18 counts of fraudulent conversion of an elderly client, totally $492,000: restitution of $50,000.
R v Du Bois (2004) 88 SASR 304 – 31 counts of false pretences and 21 further offences taken into account involving multiple victims, totalling approximately $2 million.
In this case, although the total amount of the defalcation is not insignificant, it is far less than cases in which, because of the amount lost to victims, an immediate custodial sentence is inevitable. There were two victims in this case. The period over which the conduct occurred was in two relatively short periods.
I have had regard to the appellant’s psychological condition, and the effect that an immediate custodial sentence will have upon his health. The appellant is in need of continuing treatment. He has good prospects of rehabilitation.
I accept that general and personal deterrence are significant factors to which a court must have regard in cases of repeated offending by a person in a position of trust.
Nevertheless, there are cases where good reasons may exist to suspend a sentence because the personal circumstances of an offender outweigh the need to impose an immediate custodial sentence. This is a case where good reason exists to suspend the sentence. I took into account that the appellant has spent 14 days in custody.
I allowed the appeal and made the orders referred to earlier in these reasons.