Payne v The Queen - [2007] NTCCA 10

Payne v The Queen [2007] NTCCA 10
PARTIES:PAYNE, Roseanne Rita
v

THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:CA 12 of 2006 (20520811)
DELIVERED:  20 AUGUST 2007
HEARING DATES:  14 AUGUST 2007
JUDGMENT OF:  MARTIN (BR) CJ, ANGEL AND RILEY JJ
APPEAL FROM:  MARTIN (BF) AJ, 16 JUNE 2006
CATCHWORDS:

APPEAL – CRIMINAL LAW
Appeal against sentence – multiple counts of stealing, forgery and uttering – whether sentence manifestly excessive – fresh evidence not available at sentence – appeal allowed – re-sentenced.
Criminal Code Act 1983 (NT) s 210, s 233, s 258, s 260, s 276B and s 285
Dooley v The Queen [2003] NTCCA 6, applied
Damaso v The Queen (2002) 130 A Crim R 206; Daniels v The Queen [2007] NTCCA 9, referred to.
REPRESENTATION:
Counsel:
Appellant:P Elliott
Respondent:  F Hardy
Solicitors:
Appellant:Collier & Deane
Respondent:  Office of the Director of Public Prosecutions
Judgment category classification:         A
Judgment ID Number:  Mar0711
Number of pages:  16

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Payne v The Queen [2007] NTCCA 10

No. CA 12 of 2006 (20520811)
BETWEEN:

ROSEANNE RITA PAYNE

Appellant

AND:

THE QUEEN

Respondent

CORAM: MARTIN (BR) CJ, ANGEL AND RILEY JJ
REASONS FOR JUDGMENT
(Delivered 20 August 2007)
The Court:
Introduction

The appellant pleaded guilty to a series of offences of dishonesty including stealing. The learned sentencing Judge imposed a total sentence of six years and fixed a non-parole period of three years.
On appeal, the appellant submitted that the head sentence and non-parole period were manifestly excessive. In addition the appellant relied upon fresh evidence which was not available at the time of sentence.
At the conclusion of the hearing of the appeal the Court allowed the appeal and set aside the sentence. The Court imposed a sentence of five years imprisonment commencing 13 June 2006 and ordered that the sentence be suspended on conditions of supervision after the appellant had served a period of 14 months commencing 13 June 2006. In other words, the sentence was suspended immediately.
We now set out our reasons for allowing the appeal.
Facts of Offending
On 6 April 2004 the appellant commenced employment as a Primary Health Care Access Program administrative assistant with the Central Australia Remote Health Division of the Northern Territory Department of Health and Community Services. She worked from an office in Alice Springs.
The Remote Health Program commenced in March 2004 and is responsible for managing the primary health care access program for three remote Aboriginal health zones which receive funding. It is a program of health system reform designed to improve access to and provision of appropriate primary health care services for Aboriginal and Torres Strait Islander people at the local level. The program aims to empower individuals and communities to take greater responsibility for their own health.
Part of the implementation of the program involved steering…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Payne v The Queen

Details

AGLC: Payne v The Queen [2007] NTCCA 10
Case: [2007] NTCCA 10
Decision Date: 20 AUGUST 2007

CaseChat Overview and Summary

The Northern Territory Court of Criminal Appeal considered an appeal by the appellant against a sentence imposed for multiple counts of stealing, forgery, and uttering. The appellant had pleaded guilty to these offences, which involved the theft of approximately $350,000 over a period of nine months. The offences were committed while the appellant was employed as an administrative assistant for a health program, where she was responsible for organising meetings and arranging payments to community members.

The primary legal issue before the Court of Criminal Appeal was whether the sentence imposed by the sentencing judge was manifestly excessive, particularly in light of fresh evidence that had not been available at the time of the original sentencing. This fresh evidence related to the appellant's gambling addiction, severe depression, and a pregnancy that was not disclosed at the initial sentencing hearing. The Court was required to determine the relevance and weight of these factors in assessing the appropriateness of the original sentence and whether they warranted a reduction or alteration of the sentence.

The Court reasoned that while gambling addiction and depression are often underlying factors in dishonesty offences and are treated with caution as mitigating factors, they can be given weight if they causally link to the commission of the crimes and distort the offender's thought processes. In this instance, the Court found a direct causal link between the appellant's psychological state, which adversely affected her ability to think rationally and resist her gambling compulsion, and the commission of the offences. Furthermore, the Court considered the appellant's pregnancy at the time of sentencing, and the likely detrimental effect of separation from her infant daughter on her fragile psychological state, as fresh evidence that would have likely influenced the original sentencing decision.

The Court allowed the appeal and substituted the original sentence with one of five years imprisonment, suspended after the appellant had served 14 months. The conditions of suspension required the appellant to be under supervision for a period of three years and ten months, obeying directions regarding residence, associates, employment, and crucially, counselling and treatment for her depression, addiction, and gambling issues, including residential programs.

Orders

Orders of the court

1. Appeal allowed and substituted a sentence of five years imprisonment to be suspended after the appellant had served a period of 14 months commencing 13 June 2006.

2. Conditions of suspension require that for a period of three years and ten months from the date of release, the appellant be under the supervision of the Director of Correctional Services and obey the reasonable directions of the Director or a probation officer including directions as to residence, associates, employment and counselling and treatment including counselling and treatment for depression, addiction to alcohol or other drugs and gambling.

3. The requirement to obey directions as to counselling and treatment included obeying directions as to undertaking and complying with residential programs.

Background

Background to the litigation

We now set out our reasons for allowing the appeal.Facts of Offending On 6 April 2004 the appellant commenced employment as a Primary Health Care Access Program administrative assistant with the Central Australia Remote Health Division of the Northern Territory Department of Health and Community Services. She worked from an office in Alice Springs. The Remote Health Program commenced in March 2004 and is responsible for managing the primary health care access program for three remote Aboriginal health zones which receive funding. It is a program of health system reform designed to improve access to and provision of appropriate primary health care services for Aboriginal and Torres Strait Islander people at the local level. The program aims to empower individuals and communities to take greater responsibility for their own health. Part of the implementation of the program involved steering committees (called reference groups) formed for each zone which were made up of community members nominated by their respective communities. The reference groups met from time to time and it was the responsibility of the appellant to organise such meetings and arrange for payment of members attending those meetings. The appellant was required to follow a particular process in obtaining cash and arranging payment to each member. Not surprisingly, the appellant was required to complete documentation for the recording of such payments. The first zone meeting for a particular area occurred on 28 July 2004. On 26 July 2004 the appellant correctly completed the necessary records and obtained the cash for distribution to the reference group members. Appropriate distribution occurred. The appellant’s offending began immediately after the first meeting. On the same day as she completed the necessary paperwork for the first meeting to which I have referred, the appellant also completed paperwork for the meeting of a different zone. On 30 July 2004 she obtained cash which was intended for payment to members at a meeting scheduled for 3 August 2004. The meeting was cancelled and the offender stole the cash. In order to cover the theft the appellant forged a record relating to payments to members. The appellant pleaded guilty to seven series of offences of stealing and forging and uttering which resulted in the theft of almost $350,000 over the period July 2004 to April 2005. The amounts involved in each series were as follows: Count 21 was an offence of unlawfully accessing data with intent to gain a benefit personally. The appellant intercepted an email communication to her supervisor intended to alert the supervisor as to the frequency and amounts of payments being collected by the appellant for the program. Purporting to be the supervisor, the appellant replied to the communication advising that all payments were in order. She then deleted the records of those emails. Subsequently the appellant sent further emails in the name of her supervisor advising that another payment was about to occur.Personal Circumstances/Reason for Offending

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

As we have said, it is unnecessary to decide whether the evidence concerning the appellant’s compulsion to gamble and her depression at the time of offending is, strictly speaking, fresh evidence. However, in conjunction with the fresh evidence concerning the existence of pregnancy at the time of sentence, the evidence concerning the likely effect of separation from her baby daughter upon the appellant’s fragile psychological state is fresh evidence. It provides a compelling case that had the sentencing Judge known of the pregnancy and this effect of separation, his Honour would have fashioned a sentence resulting in the release of the appellant before such separation occurred.Conclusion The relevance by way of mitigation of matters such as a gambling addiction and a major depression are well known. Not surprisingly, criminal courts are very cautious in allowing the existence of an addiction to gambling to be used as a factor of mitigation for crimes of stealing in the same way as courts are cautious about permitting addiction to drugs to be used as a factor of mitigation in respect of crimes of theft and robbery. It is not uncommon for such addictions to underlie the commission of crimes of dishonesty. However, in some circumstances addiction may be given some weight in mitigation, particularly if it distorts the thought processes of the offender. Speaking generally, when a psychological state is causally linked to the commission of the crimes, it is always a matter of relevance to determination of the appropriate sentence. What weight can be given to that condition depends on a number of factors, including the seriousness of the offending and the degree of connection between the psychological state and the commission of the offences. In our view the evidence establishes a direct causal link between the psychological state of the appellant on the commission of the offences. This state adversely affected the ability of the appellant to think rationally and to resist the compulsion to gamble. The appellant has now served 14 months of the sentence. She has suffered the penalty of actual imprisonment, coupled with the separation from her first young child. She continues to suffer from a severe psychological depression and faces the prospect of being separated from her second child who is now aged only five months. The appellant requires intensive counselling and treatment which she is unlikely to receive in gaol. In reaching the view that the appeal should be allowed and the sentence altered to permit the immediate release of the appellant, we are conscious of the need to ensure that our interference is not misinterpreted. First, we emphasise that the mere fact of pregnancy at the time of sentence will not necessarily lead to leniency or a sentence that does not require service of a period of imprisonment, including service of imprisonment requiring birth while in custody and subsequent separation from the baby. Each case must be determined according to its particular circumstances, including the seriousness of the criminal offending involved.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.