Patterson v Police; Patterson v Commonwealth Director of Public Prosecutions - [2009] SASC 195

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
PATTERSON v POLICE AND ANOR; PATTERSON v COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
[2009] SASC 195
Judgment of The Honourable Justice Kourakis
2 July 2009
MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
The appellant was convicted and sentenced in the Magistrates Court on 25 July 2005 on a charge of obtaining a Commonwealth Centrelink benefit to which she was not entitled – the Magistrate sentenced the appellant to 12 months imprisonment but ordered her release after she had served two months of that term upon her entering into a recognisance in the sum of $500 to be of good behaviour for a period of two years – the appellant was charged in September 2006 with six counts of making a false statement and in February 2007 with 13 counts of manipulating a machine and 13 counts of attempting to manipulate a machine – the appellant was sentenced for those offences on 24 November 2008 in the Magistrates Court, the sentences were four months and seven months respectively, to be served concurrently – the Magistrate also ordered that the appellant serve the remainder of the term of imprisonment imposed on 25 July 2005 concurrently with those sentences – the appellant appealed all sentences – the sentence imposed on 25 July 2005 was appealed on the grounds that it was affected by error, the sentences imposed on 24 November 2008 were appealed on the grounds that they were manifestly excessive, and that in the alternative they were affected by error because they took into account the earlier, error-affected sentence.
Held: The sentence imposed on 25 July 2005 was affected by error in that the Magistrate took into account offending that occurred before the provision pursuant to which she was charged commenced and that he overstated the maximum sentence for the offence – the appeal against that sentence is allowed – the appellant is re-sentenced to a period of eight months imprisonment – the Magistrate’s decision to order early release is not interfered with – the sentences imposed on 24 November 2008 were not manifestly excessive - the decision to revoke the appellant's early release was correct - appeal against that decision is dismissed.
Crimes Act 1914 (Cth) s 2A(5)(c), 20A; Criminal Code (Cth) s 135.2(1); Criminal Law Consolidation Act 1935 (SA) s 141(1)(a); Social Security (Administration) Act 1999 (Cth) s 212, referred to.
A, MC v Police (2008) 102 SASR 51; Saxon v Commonwealth Services Delivery Agency (2004) 88 SASR 382; Kovacevic v Mills (2000) 76 SASR 404, applied.
R v Tsiaras [1996] 1 VR 198; Thompson v The Queen (2005) 157 A Crim R 385; Sweeney v Corporate Security Group (2003) 86 SASR 425, considered.

PATTERSON v POLICE AND ANOR; PATTERSON v COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
[2009] SASC 195

KOURAKIS J: Between February and September 2006 the appellant defrauded the Commonwealth by obtaining social security payments to which she was not entitled. In February 2007 the appellant defrauded an employer who had engaged her on a short-term temporary contract by using the employer’s eftpos machine to credit her own account. The appellant was sentenced for those offences on 24 November 2008 in the Magistrates Court (the 2008 sentences). The sentences were four months and seven months imprisonment respectively, but the Magistrate ordered that those sentences be served concurrently.
By that offending the appellant had breached a recognisance she had entered into pursuant to s 20 of the Crimes Act 1914 (Cth). The recognisance was entered into as part of a sentence imposed on 25 July 2005 in the Magistrates Court (the 2005 sentence) on a single count of obtaining a financial advantage contrary to s 135.2(1) of the Criminal Code (Cth). The sentence imposed on that count was 12 months imprisonment, but the appellant was released on a recognisance after serving two months of that term. The recognisance required the appellant to be of good behaviour for a period of two years.
On 24 November 2008 the appellant was ordered to serve, pursuant to s 20A(5)(c)(i) of the Crimes Act 1914 (Cth), the remainder of that term concurrently with the other sentences to which I have referred.
The appellant has appealed all of the abovementioned sentences. For reasons that will appear shortly, the appeal against the 2005 sentence must be allowed. Indeed, so much is not opposed by the Commonwealth Director of Public Prosecutions (Commonwealth DPP).
The appellant appeals the 2008 sentences largely on the ground that they were manifestly excessive. For reasons that I give below, I would dismiss the appeal against those sentences, including the order that the appellant serve the remainder of the 2005 sentence. I would allow the appeal against the 2005 sentence for the purpose of reducing the term of imprisonment from 12 months to eight months, but I would not interfere with the order allowing early release. As a consequence, the appellant will be required to serve the balance of six months imprisonment, which remains by reason of the fact that she served two months of the 2005 sentence before her release, concurrently with the 2008 sentences. The net result will be that the actual period of imprisonment, which the appellant must serve, is reduced from 10 months to seven months.
The 2005 sentence
The appellant was convicted and sentenced in the Magistrates Court on 25 July 2005 on a complaint alleging a single count of obtaining a Commonwealth Centrelink benefit that she was not entitled to (the Centerlink offence). The complaint particularised the offence as one committed between the 17^th day of October 2000 and the 24^th day of January 2004. It was alleged against the appellant that in that period of three years three months she was overpaid an amount of $34,728.44. The Magistrate sentenced the appellant to 12 months imprisonment but ordered her release after she had served two months of that term upon her entering into a recognisance in the sum of $500 to be of good behaviour for a period of two years. The Magistrate’s sentence was affected by several substantial errors. First, the offence with which the appellant was charged only came into operation on 24 May 2001. Accordingly, the Magistrate wrongly took into account that period of offending between 17 October 2000 and 23 May 2001. It follows also that the extent of the overpayment was misstated. In the period of two years, eight months covered by the offence with which she was charged, the amount obtained was $28,563. Finally, the maximum sentence available for that offence was 12 months. The imposition of the maximum penalty could not be justified on the facts of the appellant’s offending. Indeed, the Magistrate had expressly adopted a starting point as the sentence he would have imposed but for the appellant’s plea of guilty of 15 months, which of course exceeds the maximum penalty that the Magistrate could have applied. The appeal against this sentence has been brought out of time. Indeed, it has only been brought because of the effect of the decision consequent upon the appellant’s breach of the recognisance to order that she serve the balance of the sentence. However, in view of the patent errors, the Commonwealth DPP has not opposed an extension of time and accepts that some period of imprisonment less than 12 months must be imposed.
The offence was committed in the following circumstances. From 31 July 2000 the appellant received a parenting payment. She had previously received that benefit but her payments had been terminated as a result of a debt she incurred by reason of an earlier overpayment. Not quite three months after her payments had recommenced, the appellant obtained employment with the Department of Correctional Services. The appellant had at least two contacts with Centerlink by telephone after she had commenced her employment at Yatala. She did not disclose that employment. Indeed, on 8 January 2004 she phoned Centerlink and told them that she was not in receipt of income when her average wage was about $1,500 per fortnight. The employment was initially on a trial basis. The appellant was suffering from some depression at the time of the offending.
It is convenient to defer the re-sentencing of the appellant on the Centerlink offence until after I have given my reasons for dismissing the appeal against the 2008 sentences.
Recklessly making a false statement
Within six months of serving the imprisonment imposed as part of the 2005 sentence, the appellant again defrauded the Commonwealth. Between 22 February 2006 and 6 September 2006 the appellant claimed Newstart Allowance. The appellant was charged with six counts of recklessly making a false statement. Each count related to the lodgement of a discrete fortnightly application which had to be made in order for the appellant to receive her benefit. As a result of those offences the appellant obtained $2,414.95 to which she was not entitled.
During the relevant time the appellant was casually employed by four different employers. The appellant did not declare any of her income on one of the forms and understated it on the others. In all she only declared $513.20 from a total gross income of $10,605.
The appellant was sentenced to four months imprisonment for those offences.
The appellant was also charged with 13 counts of manipulating a machine and 13 counts of attempting to manipulate a machine contrary to s 141 of the Criminal Law Consolidation Act 1935. The offences occurred during a period of temporary employment with a scientific equipment supplier between 14 February 2007 and 2 March 2007. That employment ended when the appellant’s offending was discovered. On the occasions charged the appellant swiped her credit card through the employer’s eftpos scanner, intending to improperly credit her bank account with a purported refund to which she was not entitled. On 13 of the 26 occasions she was successful, and the appellant obtained $5,185.27 to which she was not entitled. The offending occurred on seven days over a 14 day period.
The appellant drew on the account to which the funds were credited for her ordinary living expenses. However, the account was also debited for purchases at places which could not be so described, including an expensive restaurant and a jewellery store. There is a suggestion in the material put before the Magistrate that the appellant has a tendency to make generous gifts to male friends. The tendency is said to be a reflection of difficulties she has with personal relationships which in turn are a reflection of her psychological conditions. It is not clear whether that is the explanation of the particular expenditure to which I have just referred.
The appellant was sentenced to seven months imprisonment for those offences concurrent with the other sentences to which I have referred.
Appeal grounds
The appellant complains that the sentencing Magistrate failed “to have regard or adequate regard” to a number of important considerations. I should state at the outset my view that it is not appellable error to fail to have “adequate” regard to a relevant consideration in sentencing. It is an appellable error to fail to have any regard to a relevant consideration. It is also an error if the ultimate exercise of the discretion is an order which could not reasonably have been made on all of the relevant material. However, it is in the very nature of the sentencing discretion that the sentencing court must balance the relative weight of the competing sentencing considerations as they see fit in all of the circumstances of the case. Only if the ultimate decision is outside the range of decisions that can reasonably be made is there appellable error.[1] The appellant’s counsel accepted that the Magistrate did in fact have regard to all of the matters which are the subject of the various grounds of appeal save one. The exception is the failure to have regard to the appellant’s plea of guilty, where it is contended that the Magistrate failed to have any regard to that fact by way of mitigation.
[1] See A, MC v Police (2008) 102 SASR 151 at 171, [87].
Of course, a consideration of the strength of the mitigating circumstances that an appellant alleges were not accorded their proper weight may reveal that the ultimate sentence was manifestly excessive. For that reason, it is convenient to deal with the particular complaints made, notwithstanding the concession to which I have referred.
Participation in Diversion Program
First, the appellant complains that the Magistrate failed to have regard to the appellant’s completion of a diversion program. The Magistrate in fact expressly referred to the completion of that program. He referred to the final report of the team leader responsible for Ms Patterson’s participation in that program. The Magistrate thought the report expressed some qualified optimism about Ms Patterson’s future rehabilitation. He referred in particular to the passage in that report headed “Formulation”.
It follows that the complaint that the Magistrate failed to have regard to the fact that Ms Patterson completed the program has no basis. Furthermore, even if it were a relevant error to fail to have “adequate” regard to the report, I cannot accept that the Magistrate made any such error. The report was qualified, and for that reason the weight it could be given was limited. In particular, the report included the following passages:
Whilst Ms Patterson had begun to address her financial difficulties and disregard for legal sanctions, it was the clinical opinion of the Program staff that further progress would need to be made before her risk of re-offending was significantly reduced.
In summary, Ms Patterson had made pleasing progress, was now well placed to continue psychotherapy with Mr Maroulis and avail herself of financial counselling services as needed. Ms Patterson understands that she still had more rehabilitative work to do, and appeared motivated to continue that journey.
Nor do I accept that the Magistrate wrongly discounted the significance of participating in the program by making the comment, which the Magistrate described as a general one, that on occasion defendants accessed the program because they saw it as a soft option. The Magistrate immediately explained that he was not suggesting that Ms Patterson was one of those defendants. In my view, it would be naive for a Magistrate to ignore that possibility. In many cases it may not be possible to be certain about the motivations of an offender who has embarked upon the program. A Magistrate should not adopt either an overly cynical, or on the other hand an unrealistically optimistic, view of a defendant’s motivation to rehabilitate after apprehension. It is necessary to be cautious.
The appellant also complained about the following passages in the Magistrate’s remarks.
[7]In the final Diversion court report there is mention of Ms Patterson’s disregard for legal sanctions. That aspect is perplexing. Like a desperate child who prefers punishment to indifference it does appear that Ms Patterson is not deterred by either the threat of or the experience of imprisonment. If anything they seem to accelerate her lonely journey towards self-destruction.
[8]There would appear to me to be two apparently incompatible approaches to the sentencing of Ms Patterson. On the one hand the offer of a further suspended sentence could attract both Judicial and community rebuke … the more unrestrained Ms Patterson’s offending becomes the more indulgent the court becomes. On the other hand it can be agued that while notions of general and personal deterrence are, in theory, important considerations, in the case of Ms Patterson they are little more than abstractions. Imprisonment will delay further offending but at the same time make it more likely. Imprisonment offers no hope of rehabilitation in her case. Only uninterrupted therapy offers that hope.[2]
[2] SA Police v Patterson Remarks Upon Penalty of Magistrate Ackland, 24 November 2008.
In my view no error is disclosed by those passages. In the first of those passages the Magistrate is making an insightful observation about Ms Patterson’s previous offending. Ms Patterson must have appreciated that the offences would have been discovered and that on conviction she would almost certainly face a period of imprisonment. The second passage simply contrasts the competing policy considerations, general and personal deterrence against rehabilitation, which the Magistrate had to balance.
The Psychological Condition
Next, the appellant complains that the Magistrate failed to have regard or adequate regard to the appellant’s psychological condition. The Magistrate expressly referred to the report of the appellant’s treating psychologist and his diagnosis. The Magistrate referred to the discussion of the significance of psychiatric illness in the sentencing process in R v Tsiaras.[3]
[3] [1996] 1 VR 398.
In Thompson v The Queen,[4] Steytler P referred to the following passage from the judgment of Charles and Callaway JA and Vincent AJA in Tsiaras:
First, it may reduce the moral culpability of the offence, as distinct from the prisoner's legal responsibility. Where that is so, it affects the punishment that is just in all the circumstances and denunciation of the type of conduct in which the offender engaged is less likely to be a relevant sentencing objective. Second, the prisoner's illness may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served. Third, a prisoner suffering from serious psychiatric illness is not an appropriate vehicle for general deterrence, whether or not the illness played a part in the commission of the offence. The illness may have supervened since that time. Fourth, specific deterrence may be more difficult to achieve and is often not worth pursuing as such. Finally psychiatric illness may mean that a given sentence will weigh more heavily on the prisoner than it would on a person in normal health.[5]
[4] (2005) 157 A Crim R 385.
[5] Thompson v The Queen (2005) 157 A Crim R 385 at 396, citing R v Tsiaras [1996] 1 VR 398 at 400.
Steytler P went on to observe that an offender’s moral culpability is only lessened where there is a causal connection between the psychiatric illness and the commission of the offence, and that the greater the contribution of the psychiatric illness, the more the moral culpability will be lessened.
Steytler P accepted that the effect on personal deterrence will depend upon the nature and effect of the illness. However Steytler P thought that as a general rule, little weight should be given to general deterrence in the case of an offender suffering from a mental disorder, because such an offender was not an appropriate medium for making an example to others. In my view the effect on general deterrence may depend on the precise nature of the mental disorder. I am not persuaded by the brief references to Borderline Personality Disorder in the reports before me that the relative importance of general deterrence is substantially diminished.
In the passage from his sentencing remarks which I have already set out the Magistrate adverted to the difficulty in applying considerations of general and personal deterrence to a case like Ms Patterson’s. He expressly referred to the adverse consequences on her rehabilitation and treatment if imprisonment were imposed.

It follows that the complaint that the Magistrate had no regard to her psychiatric condition cannot be sustained. Again, even if I were to accept that it was an appellable error that the Magistrate failed to have adequate regard to that condition, no such error has been made out here. The Magistrate’s reasons display an acute understanding for the appellant’s psychological difficulties. Even though the appellant’s depressive condition would have impaired her capacity to control any inclination to offend, there was no evidence that it substantially did so. The same can be said about the appellant’s personality disorder. In any event, as best I understand it, the diagnosis of a personality disorder is a reference to a person’s behaviours rather than a physiological condition, at least in the same sense that major depression is a physiological condition.
Moreover, it cannot be assumed that imprisonment would not, at least to some extent, act as a deterrent in the case of persons suffering from the appellant’s psychological conditions. Mr Maroulis’ assertion that “mental impairment and imprisonment is not an appropriate vehicle for deterrence” appears to be more a moral judgment than a psychological one. Ultimately, the balancing of the relevant sentencing considerations are a matter of law for the courts. The medical sciences of psychology, neuropsychology and psychiatry have not yet completely falsified the premise, on which courts must operate, which is that, at least to some extent, sentences of imprisonment may operate as a deterrent even in the face of psychological conditions like Borderline Personality Disorder.
Plea of Guilty
The appellant also complains that the Magistrate failed to take into account the appellant’s plea of guilty. The Magistrate could hardly have not noticed that the appellant pleaded guilty. He expressly recorded as much. The appellant’s complaint appears to be based on the Magistrate’s omission to expressly state in his remarks that he had regard to the fact of the plea as a factor in mitigation of penalty. In particular, the appellant complains that the Magistrate did not indicate the sentence that he would have imposed but for the plea of guilty. On the latter aspect it is well accepted that a failure to identify the reduction allowed does not, of itself, justify interfering with a sentence.[6] The Magistrate was very experienced. There is perhaps no sentencing principle that is better known or more applied than that a plea of guilty is a factor in mitigation. I find it impossible to accept the appellant’s submission that the sentences of four months and seven months imposed by the Magistrate were only ever intended to be his starting points and that he forgot to further reduce them for the plea of guilty. It is equally impossible to accept that the Magistrate completely overlooked or forgot that a guilty plea is a factor in mitigation and for that reason failed to factor into his sentence the pleas of guilty to which he had earlier referred.
[6] Saxon v Commonwealth Services Delivery Agency (2004) 88 SASR 382 at 385, [18].
Manifestly Excessive
Finally, it falls to consider whether the sentences imposed can be said to be manifestly excessive and whether there was an error in failing to suspend the sentences. It is not contended that there was any error in the exercise of the sentencing discretion over and above the complaints with which I have already dealt.
Looking at the sentences broadly, far from having the appearance of being manifestly excessive, they appear to be at the lower end of the range. The maximum penalty on each of the six counts of recklessly making a false statement contrary to s 212 of the Social Security (Administration) Act 1999 (Cth) is 12 months. The sentence of four months does not, in those circumstances, appear to be excessive. The offending of the appellant is not altogether dissimilar from the offending in Saxon. In that case, the offender’s appeal against a sentence of 12 months, of which three months was to be served, for 24 counts resulting in an overpayment of $1,913.77, was not disturbed.
The appellant’s last offences were committed very shortly after she was given the benefit of early release from imprisonment on her recognisance. In all the circumstances, the sentence cannot be said to be manifestly excessive. I would dismiss the appeal against that sentence on that ground.
The maximum penalty on each of the 13 counts of manipulating a machine was 10 years imprisonment. The maximum penalty for the 13 counts of attempt was approximately six years and eight months. The offences involved a serious breach of trust. The appellant was, as part of her employment, given access to the bank account of her employer. The amount dishonestly obtained was substantial. The offences appear to have been motivated more by greed than need having regard to how the money was spent. There has been no restitution. The appellant’s psychiatric condition may have compromised her capacity to make sound judgments, but only to a limited extent. I suspect that there are relatively few people who fall into offending by making a calculated cost benefit analysis of its advantages. It is precisely when faced with personal, financial and emotional difficulty that many people succumb to temptation. Accordingly, general deterrence remains an important part of sentencing in this case.
The appellant also contends that it is always open to a sentencing court to give an offender the benefit of a further suspended sentence and that the Magistrate erred in failing to do so. The power to suspend a sentence or order early release on subsequent occasions may be accepted.[7] However, it is quite another question whether it is appropriate to do so. The fact that an offender has re-offended after being given such an opportunity will always strongly militate against a subsequent favourable exercise of the discretion. The Magistrate’s decision cannot be said to be unreasonable or wrong. The appellant having failed to demonstrate any express error, this ground too must be rejected.
[7] Sweeney v Corporate Security Group (2003) 86 SASR 425 at 442, [130] per Perry J.
The recognisance entered into by the appellant as a result of the 2005 offences was not a nullity. The sentence of 12 months was not made in excess of jurisdiction, even though, as I have found, it was manifestly excessive. I do not set aside the order for early release. The administrative act of the making of the recognisance was plainly within power, and it has not been shown that it was affected by any vitiating circumstance. Nor do I accept that the circumstance that the 2005 sentence was manifestly excessive in any way taints the 2008 sentences. The correctness of the 2005 sentence was not an issue before the Magistrate who sentenced the appellant on the more recent offences. There is no indication that the Magistrate, for some unexplained reason, fixed the 2008 sentences because of the length of the remainder of the term of the 2005 sentence that the appellant would have to serve. Nor can it be said that the lower head sentence I have fixed relevantly alters the balance of considerations which favour an order that the appellant serve the remainder of that term. The correct order pursuant to s 20A(5)(c) of the Crimes Act 1914 is, and was, that the appellant serve the balance of that sentence. No other alternative disposition provided for by that subsection could be justified having regard to the nature of the appellant’s breach. Lest there be any doubt about the continuing efficacy of the Magistrate’s order because I have altered the head sentence, I would make, or confirm, that order pursuant to s 42(5) of the Magistrates Court Act 1991.
Re-sentencing
I can now return to the appeal against the 2005 sentence on the basis that the 2008 sentences will not be disturbed. I approach the task of sentencing on the Centerlink offence by first reminding myself of the applicable principles.
In Kovacevic v Mills[8] the Full Court said:
We agree that in cases of deliberate and sustained fraud, deterrence must loom large in determining the appropriate sentence. But other matters, especially rehabilitation, must still be considered. We do not agree that deterrence must take priority over all other considerations, at least if that statement means that there is no scope for the Court to be influenced by considerations of rehabilitation in finally arriving at the sentence to be imposed. It may well be that King CJ did not mean to exclude considerations of rehabilitation, or mean to say that a sentence of imprisonment, with at least some of it to be served, must be imposed in every case of sustained and deliberate fraud. But his remarks are capable of being read as requiring an order for imprisonment, with at least some of it to be served, in virtually every case, and absent truly exceptional circumstances.
In our opinion the proper approach to sentencing is better reflected by saying that in a case of the type referred to by King CJ, an order for imprisonment, with at least some of the imprisonment actually to be served, is ordinarily likely to be required. This is because the commission of a number of offences of fraud over a period of time makes imprisonment appropriate even for a first offender, because of the seriousness of the offending. The same matters may require that at least part of that term of imprisonment actually be served, even in the case of a person with no previous convictions. But there is still a need to consider all aspects of the matter, and to consider the interests of society and of the offender in the rehabilitation of the offender. Also, in an appropriate case, there may be room for the exercise of mercy and leniency: see Webb v O'Sullivan [1952] SASR 65 per Napier CJ at 66 and R v Osenkowski (1982) 30 SASR 212 at 212-213. …[9]
In our view in the more serious cases of sustained and deliberate fraud, deterrence is very important, imprisonment is likely to be required, but all mitigating circumstances and the rehabilitation of the offender must still be considered. Substantial mitigating circumstances, and in some cases considerations of mercy and leniency may lead to the conclusion that a sentence of imprisonment is inappropriate or that such a sentence is appropriate, but that the imprisonment need not be served.
To that extent only we would depart from what this Court said in Cameron.
There is one further thing that should be said. While imprisonment is likely to be required, it is preferable not to say that a case must be exceptional before a different approach is taken. For example, some offenders in this area are persons whose circumstances are extremely difficult, indeed distressing. An offender might be virtually destitute, with dependants to support. An offender might act as a result of domestic pressures that few people could withstand. That might be a circumstance, coupled with other circumstances, that warrants a more merciful approach in imposing sentence, even though it is a circumstance which is not wholly exceptional, because it tends to recur with this type of offending. It is for that reason that it is safer to say that imprisonment is the starting point, rather than that the case must exhibit exceptional features before a court can properly refrain from making an order for imprisonment. In saying this we do not intend to undermine our earlier statement that in cases of sustained and deliberate fraud, imprisonment is likely to be required.[10]
[8] (2000) 76 SASR 404.
[9] Kovacevic v Mills (2000) 76 SASR 404 at 411-12, [39]-[40].
[10] Kovacevic v Mills (2000) 76 SASR 404 at 412, [43]-[45].
I also refer to Saxon v Commonwealth Services Delivery Agency.[11] In that case Duggan J referred to the “importance of deterrence in cases of deliberate and sustained fraud” but recognised, consistently with Kovacevic, that the considerations of rehabilitation and other personal mitigating factors must still be considered.[12]
[11] (2004) 88 SASR 382.
[12] Saxon v Commonwealth Services Delivery Agency (2004) 88 SASR 382 at 386, [22],
In my view, the offending on this count is a serious example of a single offence. The amount of money defrauded is very large. The appellant had several opportunities to disclose her offending but chose not to. Eventually, after she successfully completed her trial period of employment with the Department of Correctional Services, the appellant found herself in secure, well paid employment. The appellant’s psychological and personal difficulties were not significant. Many supporting parents face difficulties of the sort experienced by the appellant without resorting to offending on that scale, or at all. The appellant’s depression was not such as to prevent her from carrying out demanding and difficult employment as a Correctional Services Officer. The weight that can be given to her previous good character is limited by the acknowledgement that she had understated her income to Centrelink on an earlier occasion.
Two further reports were received on the appeal for the purposes of re-sentencing on this matter. A report of the psychiatrist, Dr Nambiar, dated 19 June 2009, confirmed that the appellant has a Borderline Personality Disorder with symptoms of anxiety and depression. Dr Nambiar suggested an increased dose of antidepressants and recommended continuing psychotherapy and cognitive therapy. In a further report dated 29 June 2009, Mr Maroulis explained why he had not been able to see the appellant in recent times. He thought that the therapeutic sessions he had provided had benefited the appellant, and agreed with Dr Nambiar’s recommendations. I have carefully considered those reports and accept that the recommended treatment can benefit offenders with the appellant’s conditions. However, the prospect, and of course there can be no certainties in this area of human behaviour, of rehabilitation is only one of the matters which sentencing courts must balance.
I also take into account the fact that the appellant has recently found employment. I do not underestimate the importance of ongoing employment, even though, in the appellant’s case, it has often been associated with offending.
Having regard to all of these matters, it is not possible, I think, to adopt a starting point of less than ten months. A generous discount for her guilty plea and the other personal matters in mitigation cannot result in a sentence of less than eight months.
I would therefore allow the appeal from the sentence imposed by simply setting aside the period of imprisonment and substituting a sentence of eight months. If I were sentencing at first instance with the knowledge that the appellant had committed further offences I would not have ordered the appellant’s early release. There is no cross-appeal against the decision to order early release. Even though I have reduced the term of imprisonment, it could be said that the overall sentence was harsher if I were not to order early release. I will therefore not interfere with the order for early release.
Conclusion
I would order as follows:
1The sentences imposed on 24 November 2008 are confirmed.
2The sentence imposed on 25 July 2005 is varied by reducing the period of imprisonment imposed from 12 months to eight months but the remainder of the sentence, including the decision to order the appellant’s release after she has served a period of two months imprisonment pursuant to s 20(1)(b) of the Crimes Act 1914 is confirmed.
3Insofar as it is necessary pursuant to s 20A(5)(c) of the Crimes Act 1914, an order that the appellant be imprisoned for that part of the sentence of eight months fixed by me that she had not served at the time of her release.