Police v Curtis

Case [2004] SASC 184

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

POLICE v CURTIS & MARSHALL

Judgment of The Honourable Justice Gray

25 June 2004

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES

Crown appeal against sentences - both appeals heard together - sentences appealed on the grounds that they were manifestly inadequate and that they failed to adequately reflect prevailing sentencing standards - discussion of Crown appeals against sentence.

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - MISAPPROPRIATION - FRAUDULENT CONVERSION BY PERSON ENTRUSTED WITH PROPERTY

Curtis pleaded guilty to 108 counts of falsification of accounts, sentenced to four years and 6 months imprisonment, non parole period of 20 months - Marshall pleaded guilty to 20 counts of receiving, sentenced to two years and three months imprisonment, non parole period of 10 months - Curtis' offending occurred in the workplace -Curtis abused position of trust as accounts clerk - consideration of Curtis' and Marshall's personal antecedents and efforts to rehabilitate themselves - discussion of prevailing sentencing standards for fraud related offending - sentences imposed were merciful but within prevailing sentencing standards - magistrate not in error - appeals dismissed.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - CONCURRENT, CUMULATIVE AND ADDITIONAL SENTENCES, SENTENCES ON ESCAPE AND COMMENCEMENT OF SENTENCE

Sentencing approach of magistrate - power of magistrate to impose one sentence for multiple offences - power of magistrate to impose one sentence of more than two years imprisonment - discussion of sections 18A and 19(3) of the Criminal Law (Sentencing) Act 1988 (SA) - held that the limitation contained in section 19(3) does not operate to prevent a magistrate from arriving at the one sentence for multiple offences of more than two years imprisonment - sentence imposed within the power of the magistrate.

Criminal Law (Consolidation) Act 1935 (SA) s 178(b), s 196; Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 19(3), referred to.
R v Osenkowski (1982) 30 SASR 212; Everett v The Queen (1994) 181 CLR 295; Police v Cadd (1997) 69 SASR 150; Ticala v Police  (Lander J, 16 July 1996, unreported); Rang v SA Police (Mullighan J, 12 November 1993, unreported); R v Hunt [2001] SASC 145; R v Musolino [2004] SASC 89; Blaser v The Queen  (King CJ, 18 June 1992, unreported); R v Ashdown (1994) 72 A Crim R 63; R v Davies (1996) 88 A Crim R 229; R v Cavanagh [1996] SASC 418; R v Hignett [2000] SASC 280; Wilson v Police [2001] SASC 424; R v Powell (2000) 81 SASR 9; Hebberman v Police [2002] SASC 267; R v Suri [2004] SASC 80; The Queen v Golding (1080) 24 SASR 161, considered.

POLICE v CURTIS & MARSHALL
[2004] SASC 184

Magistrates Appeal

GRAY J:

Introduction

  1. These are Crown appeals against sentence.  As the offending is related it is convenient to deal with both appeals together.

  2. On 22 August 2003 Graeme Curtis pleaded…

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AGLC
Police v Curtis [2004] SASC 184
Case
[2004] SASC 184
Decision Date

CaseChat Overview and Summary

The case of Police v Curtis involved a Crown appeal against sentences imposed on Curtis and Marshall, both of whom had pleaded guilty to charges of fraudulent conversion of property. Curtis, who had abused his position of trust as an accounts clerk, was sentenced to four and a half years imprisonment with a non-parole period of 20 months. Marshall, who was found guilty of receiving stolen property, was sentenced to two years and three months imprisonment with a non-parole period of 10 months. The Crown appealed on the grounds that the sentences were manifestly inadequate and did not reflect prevailing sentencing standards.

The legal issues before the court included whether the sentences were manifestly inadequate and whether the magistrate erred in considering factors such as the pleas of guilty, contrition, and efforts at rehabilitation in arriving at the sentences. The court also needed to determine whether the magistrate had the power to impose one sentence for multiple offences and whether the limitations in the Criminal Law (Sentencing) Act 1988 (SA) applied in this context.

The court found that the magistrate had correctly exercised their discretion in imposing sentences that, while merciful, were not outside the proper exercise of their sentencing powers. The court held that the magistrate was entitled to consider the pleas of guilty, contrition, and efforts at rehabilitation, and that these factors warranted a reduction in the sentences. The court also rejected the argument that the magistrate had failed to consider the cooperation of Curtis with the police, finding that the magistrate had indeed taken this into account. The limitation in section 19(3) of the Criminal Law (Sentencing) Act 1988 (SA) did not prevent the magistrate from imposing one sentence for multiple offences of more than two years imprisonment. Accordingly, the Crown's appeals were dismissed.

The court ordered that the appeals be dismissed and that the sentences imposed by the magistrate be upheld. The sentences for Curtis and Marshall remained as originally determined, reflecting the magistrate's balanced consideration of the offending and the defendants' personal circumstances, including their efforts at rehabilitation and the pleas of guilty.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Counsel also submitted that the magistrate properly had regard to the efforts of Marshall to cease drinking alcohol, cease gambling and obtain steady employment. It was said regard was had to his relatively low incident of prior offending, his early plea of guilty and his personal circumstances. It was also emphasised that unlike Curtis, Marshall was not in a position of trust.Conclusion When sentencing Curtis and Marshall, the magistrate correctly recognised that a reduction should be made on account of the pleas of guilty, contrition and remorse. A reduction of 25 per cent for each defendant was made. In the circumstances such a reduction was not inappropriate. The magistrate correctly took into account Curtis and Marshall’s problems with alcohol and gambling and their efforts to rehabilitate themselves. It was appropriate for the magistrate to impose a shorter than usual non-parole period with longer periods of probation. This addressed the rehabilitation prospects of the defendants and the long term protection to the community. The magistrate also made allowance for Curtis’ co-operation with the police. This cooperation had the potential to provide both valuable information and material assistance. In the case of Curtis, the magistrate’s reasoning suggests that before allowances were made, his probable starting point before reduction was a head sentence of about seven years. The magistrate made a reduction of 25 per cent on account of the pleas of guilty and contrition. The magistrate was also aware of Curtis’ co-operation with the police with respect to the identity of others involved. The submission that he failed to have regard to this consideration should be rejected. In these circumstances, a sentence of four and a half years imprisonment although merciful was not outside the proper exercise of the magistrate’s sentencing discretion. In the case of Marshall, the magistrate’s starting point before reduction on account of the guilty pleas, appears to have been a term of imprisonment of three years. However there were good prospects for rehabilitation. There was no lack of parity with the sentence imposed on Curtis. Marshall was not directly involved in Curtis’ dishonest conduct. He did not submit any false accounts. All that was the conduct of Curtis. Marshall was not in business as a receiver. The sentence imposed on Marshall was not outside the proper exercise of the sentencing discretion. As earlier observed, given the wide range of penalties that may be imposed for fraudulent and dishonest conduct, the sentences imposed are not manifestly excessive. As King CJ observed in Osenkowski:[25]It is important that the prosecution appeal should not be allowed to circumscribe unduly the sentencing discretion of the Judges. There must always be a place for the exercise of mercy where Judges’ sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the Judge forms the view, almost intuitively in the case of experienced Judges, that leniency at that particular stage of the offender’s life might lead to reform.While the sentences may be described as merciful, they were not in error.[25] (1982) 30 SASR 212 at 212

Ratio Decidendi

Legal Principle Established

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