PATTERSON v POLICE - [2010] SASC 224

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PATTERSON v POLICE
[2010] SASC 224
Judgment of The Honourable Justice Kelly
21 July 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - OTHER FRAUDS AND IMPOSITIONS - OBTAINING PROPERTY BY DECEPTION - SENTENCE
Appellant appealed against sentence imposed on guilty plea to 17 counts of deception and four counts of dishonest dealing with documents - Magistrate was asked to and did take into account 17 other uncharged counts of deception - appellant sentenced to three years and six months imprisonment with non-parole period of 20 months - whether Magistrate erred in applying discount for assistance given to authorities to non-parole period but not to head sentence - updated psychological report ordered.
Held: Appeal allowed - discount for assistance given to authorities should have been applied to both the non-parole period and the head sentence - new head sentence imposed of two years and three months - new non-parole period imposed of 12 months - sentence backdated to 27 February 2010.
R v Wilson (2000) 211 LSJS 384; Director of Public Prosecutions (Cth) v AB (2006) 94 SASR 316, considered.

PATTERSON v POLICE
[2010] SASC 224
Magistrates Appeal: Criminal
KELLY J:

The appellant was sentenced in the Adelaide Magistrates Court on 16 February 2010 for 17 counts of deception and four counts of dishonest dealing with documents.
The appellant pleaded guilty to the charges and asked that a further 17 counts of deception be taken into account. All of the offending for which the appellant was to be sentenced took place between 27 February 2007 and 7 May 2009. The factual basis put before the Magistrate for the purpose of sentence was contained in a statement of agreed facts which was tendered to the Court. That statement referred to both the matters charged and the matters to be taken into consideration. The offending involved fraud committed against various employers as well as the misuse of credit cards which belonged to others.
The offending took place while the appellant was on a good behaviour bond, had other matters proceeding in the Magistrates Court and while the appellant was participating in the Magistrates Court mental health diversion program. The learned Chief Magistrate sentenced the appellant to three years and six months imprisonment and imposed a non‑parole period of 20 months. The sentence was to commence on 27 February 2010. At the date when the Chief Magistrate sentenced the appellant she was serving another term of imprisonment for earlier fraud related offending. The appellant had a balance of 10 days still to serve in respect of that sentence as at 16 February 2010.
The appellant’s notice of appeal contains one ground of appeal, a complaint that the sentence was manifestly excessive.
On the hearing of the appeal the appellant contended that the Magistrate erred in applying the discount which she gave to the appellant on account of her plea of guilty and her cooperation with the authorities.
In fixing the head sentence, the learned Chief Magistrate allowed a discount of some six months on account of the appellant’s guilty pleas. In fixing the non‑parole period of 20 months she allowed for a reduction of some 10 months that she considered would otherwise have been appropriate in the absence of the assistance provided to the authorities. On appeal it was contended that in failing to apply the discount for the assistance provided to the authorities to the head sentence as well as the non‑parole period, the Chief Magistrate erred.
The respondent concedes that the method adopted by the Magistrate was in error in that the discount for the assistance provided to the authorities should have also been applied to the notional head sentence.
I consider the concession made by the respondent is correct. There is no difficulty in applying a single rolled up discount for both a plea of guilty and cooperation with the authorities, but there is no doubt that the discount must be applied to both the head sentence and the non‑parole period. See R v Wilson (2000) 211 LSJS 384, Director of Public Prosecutions (Cth) v AB (2006) 94 SASR 316.
The appellant made a number of other complaints about the Magistrate’s reasons to support the submission that there had been an error or errors made such as to justify the intervention of the Court. I do not consider it necessary to deal with those other complaints in light of my conclusion that the Magistrate was in error in applying the discount to the non‑parole period but not to the head sentence. In the light of the conclusion I have reached it is necessary for me to consider again all of the circumstances, and in the exercise of my own independent discretion, to determine an appropriate sentence.
At the hearing of the appeal I indicated to counsel that it may be helpful in this process if I was to have the benefit of an updated psychiatric report. I formed that view on the basis that it seems plain enough that the original reports obtained for sentencing were obtained at a time when the appellant, on her own admission, was still in a stage of denial as to her responsibility for her offending. In addition it became plain from her counsel’s submissions on the appeal that there had been developments since the appellant’s incarceration which might be relevant on any resentencing exercise.
In resentencing the appellant I have therefore taken into account all of the submissions made, including the most recent report from Mr Balfour dated 12 July 2010.
It is plain from all of the psychological reports, but in particular from the most recent report obtained, that the appellant has deep-seated psychological and emotional issues which she has never previously admitted, and which are inextricably bound up with her descent into criminal behaviour at a relatively mature age. The contents of Mr Balfour’s report go some way to explaining why a person who had an apparently stable record of employment and had never previously been in trouble descended into a pattern of neurotic attention seeking behaviour, which escalated into fraudulent criminal behaviour and continued even when the appellant knew that she was bound to be caught.
I take into account that the appellant has now been in custody since 26 July 2009 as a result of the earlier sentence for other fraud related offending and in respect of the current matters. I also take into account that after her incarceration and after the appellant provided assistance to the prosecution authorities in relation to another inmate, the appellant was placed in isolation for her own protection. The end result of that is that she now spends up to 23 plus hours a day in her cell.
I consider that justice will be done in this matter if I adopt, to some extent, the same approach as the Magistrate in determining the extent of the discount which should be afforded the appellant on account of her plea of guilty and her cooperation with the authorities. That discount was somewhere in the vicinity of 45 per cent.
I acknowledge that I am not bound to adopt the same starting point as the Magistrate, however given the objective seriousness of the appellant’s offending, I consider a head sentence of four years is appropriate. I reduce that to two years and three months on account of the appellant’s plea and cooperation with the authorities.
In setting the non‑parole period I take the same factors into account. However I have been particularly influenced by Mr Balfour’s conclusion that:
Without the assistance of a supervised, structured rehabilitation programme, I believe that Ms Patterson’s prognosis to cease offending in the near future is poor. She has complex mental health problems for which she will require intense psychological and psychiatric assistance. Her rehabilitation will be lengthy (i.e., two to three years). She will be prone to experience relapses of her neurotic attention-seeking offending behaviour. I believe her offending behaviour stems from a combination of personal avarice and her borderline personality psychopathology. I believe that with psychological and psychiatric assistance she can learn to better cope instead of relying on a maladaptive coping style, and her propensity to offend will be significantly reduced. She has taken a significant step towards her rehabilitation by disclosing to me she was sexually abused during her childhood.
I set a non‑parole period of 12 months.
In the light of the reports about the appellant it would be unfortunate in the extreme if she was not to receive the benefit of a supervised structured rehabilitation program as soon as she is released either on home detention or on parole.
The formal orders I make are as follows:
1       The appeal is allowed.
2       The sentence of the Magistrate is set aside.
3       I impose a head sentence of two years and three months. The non‑parole period is 12 months.
4       Both the head sentence and the non‑parole period are backdated to 27 February 2010.