Police v Hatty - [2007] SASC 180

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v HATTY
[2007] SASC 180
Judgment of The Honourable Justice Layton
21 May 2007
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - FORGERY AND UTTERING
Appeal by the Police against sentence imposed by a Magistrate - respondent pleaded guilty to 20 counts of forgery and 20 counts of uttering - respondent misappropriated a total of $168,828 from her employer, a not-for-profit organisation for indigenous women - Magistrate imposed a sentence of 27 months imprisonment, with a non-parole period of nine months, wholly suspended on entering a three year bond - the Police appeal on the grounds that sentence imposed was manifestly inadequate, and that the Magistrate erred in suspending the term of imprisonment - Held: Appeal allowed - sentence imposed was manifestly inadequate - Magistrate erred in characterising the offences as "unsophisticated" and motivated by comfort rather than greed, and in assuming that the respondent had co-operated with police - there was no good reason to suspend - respondent re-sentenced to three and a half years imprisonment with non-parole period of 10 months.
Magistrates Court Act 1991 (SA) s 42; Criminal Law (Sentencing) Act 1988 ss 7, 7A, referred to.
Everett v The Queen (1994) 181 CLR 295; Police v Cadd & Ors (1997) 69 SASR 150; Griffiths v The Queen (1977) 137 CLR 293; R v Osenkowski (1982) 30 SASR 212; Director of Public Prosecutions v Leach (2003) 139 A Crim R 64, applied.
R v Hicks (1987) 45 SASR 270; R v Knott [2007] SASC 74; R v Davies (1996) 88 A Crim R 226; R v Cavanagh [1999] SASC 418; R v Powell (2001) 81 SASR 9; R v Musolino [2004] SASC 89; Police v Curtis & Marshall [2004] SASC 184; R v Ivic [2006] SASC 8; R v Penno (2004) 236 LSJS 457; Dinsdale v The Queen (2000) 202 CLR 321, considered.

POLICE v HATTY
[2007] SASC 180
Magistrates Appeal: Criminal
LAYTON J:
Introduction

This is a Crown appeal against sentence pursuant to s 42 of the Magistrates Court Act 1991 (SA). On 2 March 2007 the respondent pleaded guilty to 20 counts of forgery and 20 counts of uttering. The maximum penalty for each count is imprisonment for life.
The offences were committed over a period of approximately 10 months and related to defalcation of funds from her employer, the Nunga Minimis Shelter Inc of $168,828 (‘the Shelter’). The Shelter is a not-for-profit organisation for indigenous women. The Magistrate identified a starting point of three years imprisonment which he discounted by nine months (presumably for the plea of guilty) and imposed a non-parole period of nine months, which he then suspended upon the respondent entering into a bond in the sum of $500 to be of good behaviour for a period of three years.
The Crown appeals on the ground that the sentence imposed was manifestly inadequate in relation to all aspects of sentence, namely the head sentence, the non-parole period and the suspension of the period of imprisonment. The Crown also argues that the sentencing process disclosed four errors of law.
In addition, on appeal, the Crown sought permission to tender further affidavit evidence in relation to any process of re-sentencing which may be undertaken by the Court.
Circumstances of the offending
The respondent was employed by the Shelter as an Administrative Assistant between February 1999 and September 2000. The Shelter, a not-for-profit organisation, received funding from both the State and Federal Governments. The respondent was employed, amongst other things, to prepare cheques for payment to creditors and to maintain the computer-based financial records. The respondent was not a signatory for cheques.
It was not until an audit was conducted for the financial year 2000/2001, after the respondent had left her employment at the Shelter, that discrepancies were identified.
The modus operandi used by the respondent to commit the offences was that she would draw up a false invoice in the name of a fictitious company called Dracbar. The ABN the respondent used for this fictitious company was that of the Shelter. The respondent would present a fake invoice, together with a cheque for the amount of the invoice, to the Manager or other authorised person, for signature. Later, the respondent altered the payee on the cheque to her maiden name of “C Barker”, “Carolyn Barker” or “C B Barker”. That alteration was then falsely initialled and the cheques were then paid into various accounts. In a number of instances cheques were paid into an account in the name of her partner, Darren Hatty, or into an account in the name of Carolyn Hatty, or alternatively a joint account. She was not at that time married to Darren Hatty. This did not occur until 2001 after she had left her employment at the Shelter.
Although the Information for the counts of both forgery and uttering cover a period from February 1999 until September 2000, being the period of her employment, exhibit MW2 to the affidavit of Mark Wright, which was an exhibit before the Magistrate, indicates that the offending took place between August 1999 and October 2000, a period of some 14 months. The respondent submitted her resignation on 21 September 2000, and the last of the forgery and uttering appears to be around 1 October 2000. Over the 14 months, this averages at about $12,000 per month, although exhibit MW2 indicates that the specific amounts of each forge and utter varied between $1,400 to $15,500, in broad figures. Large amounts were therefore the subject of defalcation.
Not only did the respondent forge and utter cheques, she also altered the balance sheet to disguise the defalcation, and funds were written to the maintenance and repairs accounts within the Shelter’s computerised financial records. It was these discrepancies between the closing and opening balance and also budgeted amounts and actual amounts, which disclosed the defalcations.
During the process of these defalcations, a new Manager who came into the Shelter made enquiries with the respondent concerning the company Dracbar. The respondent explained to the Manager that it was a company set up by the Department of Human Services for the purposes of providing furniture and whitegoods to the Shelter.
Personal antecedents
The respondent is a 35 year-old woman. She has two children aged five and two which were born subsequent to her offending. She was married to Darren Hatty in 2001, and at the time of her sentencing on 2 March 2007, they were separated but living in the same house and her husband was supportive of her and the children.
At the hearing before me, there was no transcript of the submissions made to the sentencing Magistrate, but there was an affidavit of her then counsel, James Noblet, and a copy of a report of Dr White dated 28 February 2007, which was tendered before the Magistrate. Mr Noblet’s affidavit indicated that the following submissions were made:
6. …
·The Respondent commenced employment with Nunga Women’s Shelter in and around February 1999.
·She had initially enjoyed her employment however, was racially vilified after a change in management.
·The Respondent had been the only white person working with the organisation and experienced constant questioning by others within the organisation as to whether she should be employed there.
·The Respondent was also required to work extra Fridays without pay and was told she would lose her part-time position if she did not comply.
·The Respondent continued to work in an environment of extreme stress and felt trapped.
·It was submitted to the learned sentencing Magistrate that the Respondent had a history of self harming behaviour during times of extreme stress.
·In the past self harm had taken the form of drug overdose, however it was submitted that during the period of offending her actions gave her relief from her emotional distress.
·The Respondent’s offending should be viewed against a backdrop of mental illness and was a dysfunctional response to stress. The offending was not motivated by need or greed.
·The Respondent was very sorry for what she had done, realised the seriousness of her offending, was devastated by the prospect of being separated from her children and saddened by the break down of her relationship with her husband (although he remained supportive of her).
·The Respondent at the time of sentencing was financially destitute, struggling with the symptoms of depression and prescribed anti depressant medication.
·It was conceded that the offending was serious and called for a term of imprisonment.
The following submissions were made in relation to the learned sentencing Magistrate’s discretion to suspend a term of imprisonment:
·The offending was linked to underlying psychological problems.
·It is not a simple case of need or greed.
·It was in both the Community and Respondent’s best interest that she have ongoing treatment.
·Any immediate term of imprisonment would have a devastating emotional and financial impact on the Respondent and her family.
·A bond with supervision would greatly assist her rehabilitation.
·A bond would allow her to continue to raise her children, engage in employment and pay off the amount owing.
·A suspended term of imprisonment is a real punishment satisfying both requirements of general and personal deterrence.
Crown appeals against sentence
A court will only entertain a Crown appeal against sentence in “rare and exceptional circumstances” ,[1] where it is necessary to:
·lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons;[2]
·establish and maintain adequate standards of punishment for crime;[3]
·correct the idiosyncratic views of individual judicial officers as to particular crimes or types of crimes; [4]
·correct a sentence which was so disproportionate to the seriousness of the crime as to shock the public conscience;[5] and
·ensure, so far as the subject matter permits, that there would be uniformity in sentencing.[6]
[1] Everett v The Queen (1994) 181 CLR 295, 299. The principles are applicable to this type of appeal as a consequence of Police v Cadd & Ors (1997) 69 SASR 150.
[2] Griffiths v R (1977) 137 CLR 293, 310 per Barwick CJ.
[3] R v Osenkowski (1982) 30 SASR 212, 212-13.
[4] Ibid.
[5] Ibid.
[6] Everett v The Queen (1994) 181 CLR 295, 306.
The Crown bears the heavy onus of establishing that this is a case within that category of cases where the sentencing discretion of the Magistrate should be interfered with.
Further, I note the authorities which indicate that appellate courts are generally reluctant to interfere with the discretion of sentencing judges to exercise mercy and leniency.[7] As King CJ stated in R v Osenkowski:[8]
It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must be always be a place for the exercise of mercy where a judge’s 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.
[7] R v Osenkowski (1982) 30 SASR 212, 212-13; See also Director of Public Prosecutions v Leach (2003) 139 A Crim R 64, 74 per Eames JA.
[8] (1982) 30 SASR 212, 213.
Since this is a case where the respondent has been given a suspended sentence, and has therefore been told that she will not have to go to prison, this appeal, which seeks to revoke the suspension and impose an immediate term of imprisonment, should be approached with great care, and the "rare and exceptional" test should be rigorously applied.[9]
[9] R v Hicks(1987) 45 SASR 270, 273; R v Knott [2007] SASC 74, [23].
Error of sentencing principle
The remarks on penalty were given ex tempore. I take this factor into account, together with what is well-recognised in this court as the heavy load imposed on Magistrates in which they are required to give their reasons.
The Crown identifies four alleged errors in the sentencing Magistrate’s reasons. I will take them in the order in which they appear in the remarks on sentence.
The first alleged error is in paragraph [6] of the remarks on penalty, in which the Magistrate described the frauds as being “unsophisticated and were always going to be discovered”. The Crown submitted that the process followed by the respondent in the commission of the frauds was far from unsophisticated, and was discovered only with difficulty.
I consider that the Crown is correct in its characterisation. In my view the Magistrate was wrong when he decided that they were “unsophisticated”. The frauds were planned with considerable ingenuity in the use of the fictitious company, and were regular and systematic. As to whether the frauds “were always going to be discovered”, the respondent’s counsel, Mr Stokes, submitted that there was naivety in the respondent’s use of the Shelter’s ABN, and the paying into the account using her maiden name and her partner’s name. In my view, the frauds were not so easily discovered and, furthermore, the respondent lied to the Manager in an endeavour to further conceal that the company to which the cheques were originally endorsed was non-existent. Further, the fact that the frauds may well have been discovered at some time, does not detract from the criminal intent manifested by the respondent in the commission of the frauds. I will later consider this aspect when dealing with the question of whether the sentence imposed by the Magistrate was manifestly inadequate.
The second alleged error relates to paragraph [7] of the remarks on penalty in which the Magistrate indicated, “I assume that she has been cooperative in the course of the investigation of the offences because no-one has suggested otherwise”.
The Crown submitted that no submission to this effect was made to the Magistrate. As a consequence it was argued that it was not open to the Magistrate to find a mitigating factor of cooperation with investigators. It was submitted that cooperation is a mitigating factor, and silence alone on the issue, without any evidence, does not permit such an inference to be drawn. Further, it was contended that it is not for the prosecutor to make the submission to the contrary, namely that a person has not cooperated with investigators, as this may tend to countermand a common law right to silence.
In response, Mr Stokes refuted the Crown’s propositions. He submitted that the respondent had cooperated, as was indicated by her early plea of guilty, for which there was an appropriate reduction in the sentence. In my view, there is a difference between cooperation in the course of an investigation, and the subsequent entering of an early plea of guilty once an investigation has been completed and charges have been laid. The respondent obtained the benefit of the early plea reduction. I consider that the Magistrate was in error in assuming cooperation as a mitigating factor.
The third error alleged by the Crown relates to paragraph [11] of the remarks on penalty, where the Magistrate concluded, “it appears that the offending was motivated not by need, not by greed but by a search for comfort, perhaps encouraged by a tinge of revenge”.
The Crown challenges this finding on the basis that there is little, if any difference between “greed” and “comfort” in the circumstances of this case. The only information which was before the Magistrate as to the use to which the money was put, is contained in the psychological report of Dr Jack White. The respondent in a clinical interview with Dr White indicated, “there was no single item that the money was used for” and it was probably “mainly furniture and trips”. She added that “spending money provided some comfort to her worry”. The same report of Dr White also reported, in the context of the money being deposited in either her own account or her husband’s account or joint account, that “at the time they were experiencing some financial problems”. This reference to financial problems was not the subject of any submissions made by Mr Noblet before the sentencing Magistrate, nor were they made to me on appeal.
Therefore, on the information before the Magistrate, there was no submission of financial hardship, or other explanations such as a gambling problem, an addiction, or family breakdown. The spending of such a large amount of money on “furniture and trips” could not amount to “need”. The reference by the Magistrate to the word “comfort” may well have come from the report of Dr White in which the respondent was reported as stating that “spending money provided some comfort to her worry”. However, in this case the items purchased appear to be more by way of lifestyle enhancement and indulgence. The sum of $168,828 provides a lot of furniture and trips.
In my view, given the overall situation of the case, the characterisation of the motivation for offending fits into the higher level of seriousness by appearing to be spent on betterment of lifestyle and luxury. I note that the Magistrate considered that the offending was perhaps “encouraged by a tinge of revenge”. I consider that the sentencing Magistrate was in error in characterising the spending as being motivated by “comfort”, as though that should be treated less culpably than “greed”.
The fourth alleged error by the Crown was the Magistrate’s alleged failure to take into account, on the issue of restitution, whether the effect of this fraud on the Shelter would be greater on such a body than on organisations such as banks or statutory authorities. In the absence of any specific evidence placed before the Magistrate, and in the absence of there being any Victim Impact Statement available to the Magistrate, I do not consider that the Magistrate was in error in failing to draw such an inference. Further, to the extent that any inference could be drawn, it may have been thought that because the Shelter was funded by the State and Commonwealth, the deficiency in funds would be able to be remedied. In any event, I am not persuaded that there was an error by the sentencing Magistrate on this point.
Manifestly inadequate
The Crown referred to a number of decisions suggesting that there was a trend of increasing penalties for offending of this type. It is certainly true that a number of cases have expressed the need for sentencing standards to be adequate where there have been large-scale systematic breaches of trust. Many of the cases in which this was stated concerned multiple frauds of large amounts of monies, often at the hands of professionals, such as accountants or brokers, over many years.[10]
[10] See R v Davies (1996) 88 A Crim R 226 at 230, 231; R v Cavanagh [1999] SASC 418 [2] [21]; R v Powell (2001) 81 SASR 9, [14]-[15] and [55]; and more recently R v Musolino [2004] SASC 89 [17].
Whilst this case does not involve the same scale of offending as these cases, nor the large number of counts, nor a professional capacity, nonetheless the observations by both single Judges and the Full Court on this topic are still relevant. In particular, I note the comments of Debelle J in R v Cavanagh[11] where his Honour observed:
... the moral blameworthiness in this kind of offending compares quite unfavourably with a typical multiple housebreaking This kind of offending is premeditated, deliberate and repetitive. The fact that it involves deceit only serves to underline the criminal wilfulness of the conduct. In cases of this kind, the description of the crime as fraudulent conversion should not disguise the fact that it is a form of stealing - in this case, as in others, stealing on a grand scale. Deterrence must therefore be a predominant factor in the sentence.
[11] [1999] SASC 418.

In relation to the circumstances of offending, Mr Stokes submitted that the psychological report of Dr White demonstrated a connection between a psychological condition suffered by the respondent and the circumstances of the offending. It was submitted that the report indicated that she was a person who, when stressed, appeared to “decompensate” and that she had decompensated because of stress in her employment. He pointed to the following passage:
Your client’s life appeared to stabilise when she met her husband in 1997 but when she experienced stress in the workplace (particularly her perception that she was being racially discriminated against as a “white” person working within a black person’s organisation) she again appeared to decompensate. Your client perceived a level of antagonism with the new Manager who she said had forced her to work an extra day without pay. Your client indicated that in 1999-2000 she began fraudulently removing monies from her employer and transferring them to her own accounts. Your client acknowledged that the process of spending money gave her some relief from her emotional distress.
However, that comment must be also considered in the light of other matters expressed in that same report by Mr White and in particular:
Mrs Hatty stated she had no idea why she committed the offences. She said she could not recall doing it.
…
Your client denied that her actions were necessarily conscious as she said it was only in retrospect that she truly appreciated the gravity of her offending.
It is to be noted that although there was a background of psychological disturbance in her early 20s when she had relationship breakdowns and took several overdoses, those had appeared to stabilise, certainly in 1997, after she met her husband.
Further, as the Magistrate himself found:
It is not all that easy, even with the assistance of Dr White’s report, to discover the relationship between these tensions and stresses and offending of this sort …
On this aspect I agree with the sentencing Magistrate. There is no clear connection and certainly none which readily provides an explanation for her offending. On the contrary, there appears to be a significant element of unpreparedness to accept and take responsibility for her actions. Whilst the submissions made by her counsel before the sentencing Magistrate expressed that his client was “very sorry for what she had done”, there is no other overt expression of that contrition, either in the psychological report, or in any volunteering of restitution. This aspect is recognised by the Magistrate who said at paragraph [14]:
It is perhaps a little disappointing that Mrs Hatty has not found herself able to set aside any amount to offer in restitution. It might have been derided as a token amount but perhaps a token amount would have been better than nothing at all.
Looking at a spectrum of cases which were referred to me by counsel, including a helpful summary of those contained in Police v Curtis & Marshall [2004] SASC 184 at [42]-[54], bearing in mind the circumstances of the offending and the importance of deterrence, it would appear that the head sentence in this case of three years imprisonment was manifestly inadequate.
In all of these circumstances there should have been, at the very least, a starting point of around five years imprisonment.
I now turn to the non-parole period. The nine months set by the Magistrate amounted to one third of the head sentence, which is a very low period.
The sentencing Magistrate did not indicate the reasons for the very reduced non-parole period in comparison with the head sentence, although it appears that the factors which he took into account when later deciding to suspend the overall sentence, were also considered in fixing the non-parole period.
If in fact, exactly the same factors have been used by the Magistrate, then there has been a double reduction, first to reduce the non-parole period well below common practice, but secondly to further ameliorate the penalty by then using those same factors to suspend the sentence. This appears to be what the Magistrate has done. I will therefore consider the factors used as amounting to good reason to suspend.
The bases upon which the Magistrate suspended the sentence were as follows:
[18]The fact that Mrs Hatty has no convictions for any criminal or other offence is significant but it is important not to overestimate its significance because experience shows that many people who have no convictions for offences of dishonesty engage, often, as here, inexplicably, in fraudulent activity to the detriment of their employer or others who have placed them in a position of trust.
[19]It is significant that Mrs Hatty has sought professional assistance in trying to uncover the still somewhat obscure motivation for the commission of these offences.
[20]I proceed on the basis that her children are materially and emotionally dependent upon her and that an enforced separation from them might in itself create trauma that could make re-offending more rather than less likely.
In relation to there being no prior convictions, as the Magistrate noted, the Court has previously acknowledged that this is a frequent feature of fraudulent behaviour. In R v Davies (1996) 88 A Crim R 226, Cox J stated at 229 (Doyle CJ agreeing at 231):
[C]rimes of this sort are usually committed by respectable people of good standing – that is how they come to be in positions of trust which they are able to exploit to their own advantage. The deterrent effect of a sentence or non-parole period upon other people of good reputation, in a similar position and similarly tempted, would be substantially diminished if persons who commit a series of offences of this kind are still given substantial credit for their previous good character. Nor for the same reason should much allowance be made for the circumstances that, as is almost always the case, such a defendant is unlikely to offend again.
It is therefore clear that previous good character is a relevant factor to be considered, but not much store can be placed on this factor because of it being consonant with being in a position of trust enabling commission of the offences.
In relation to the fact that the respondent has sought professional assistance in “trying to uncover the still somewhat obscure motivation for the commission of these offences”. First, I note that this reinforces the Magistrate’s correct assessment of the obscurity of motivation. Secondly, although not articulated, I assume that the Magistrate considered that this demonstrated a positive sign towards rehabilitation. Whether this is sufficient to elevate it to a situation in which there should be a suspension, I will consider shortly.
I now turn to the third basis proffered by the Magistrate, namely that “her children are materially and emotionally dependent upon her and that an enforced separation from them might in itself create trauma that could make re-offending more rather than less likely”. (emphasis added)
I find the latter emphasised aspect of the Magistrate’s reasoning to be somewhat illogical. I do not understand how imprisonment may make re‑offending more rather than less likely, when imprisonment means that re‑offending during that time cannot take place. However, putting that to one side and focussing on the children. As Gray J indicated in R v Ivic,[12] whilst it is true that the effect on dependents, and in particular children, is an aspect to be considered, at the same time the starting point is the acknowledgment that imprisonment of a parent will invariably affect their child. The question for the court therefore, is whether the particular circumstances of a case are such that the effect on the child of the imprisonment of their parent will be greater than might ordinarily be expected. There is nothing to suggest that in this case. Dr White’s report refers to the respondent being separated from her husband, but they were still living in the same house and he was supportive. This same point was made by counsel for the respondent in the submissions before the Magistrate. This matter of itself would not warrant a suspension.
[12] [2006] SASC 8 at [34] referring to R v Penno (2004) 236 LSJS 457.
Bearing in mind that a “good reason” is required to suspend, I do not consider that the combination of any of the above matters warranted suspension of the sentence. The offending was very serious with little by way of mitigating circumstances. Accordingly, it is my view that the Magistrate erred in suspending the sentence.
It is therefore my view that the sentence is manifestly inadequate. I consider that the errors alluded to by the Crown which I have accepted, in part explain the inadequacy of the sentence and, in my view, the sentence should be set aside.
Re-sentencing
Having concluded that the sentencing Magistrate erred in a number of respects and that the sentence imposed is manifestly inadequate, I consider that the Crown has established that this is one of those “rare and exceptional” cases which warrants the interference of this Court. Such interference is necessary in this case in order to maintain adequate standards of punishment for this crime. The appeal must be allowed and the sentence of the Magistrate be set aside.
I now turn to the matter of re-sentencing. This raises the issue of the further material sought to be tendered by the Crown. The Crown sought to tender two affidavits, one of Aileen Robertson sworn on 3 May 2007, and the other of Mickelina Delfina Barlow sworn on 3 May 2007. Both of these affidavits enclose statements by each of the deponents made in 2003 and 2001 respectively. Although they were available, they were not tendered before the sentencing Magistrate. Both statements contain additional circumstances of the offending and also detail of the items on which the money was spent. In essence they are matters of aggravation.
I consider that in all the circumstances it is inappropriate to admit this material. It could have been previously proffered and it also contains matters of aggravation. I reject the application for their tender in the interests of justice.
In addition, the Crown sought to tender a Victim Impact Statement. This statement had not been prepared at the time of the sentencing before the Magistrate and was now sought to be tendered before me. The Crown argued that this was a requirement for sentencing pursuant to ss 7 and 7A of the Criminal Law (Sentencing) Act 1988 , which provides:
7—Prosecutor to furnish particulars of victim's injury etc
(1) Subject to subsection (2), the prosecutor must, for the purpose of assisting a court to determine sentence for an offence, furnish the court with particulars (that are reasonably ascertainable and not already before the court in evidence or a pre-sentence report) of—
(a)     injury, loss or damage resulting from the offence; and
(b)     injury, loss or damage resulting from—
(i) any other offence that is to be taken into account specifically in the determination of sentence; or
(ii) a course of conduct consisting of a series of criminal acts of the same or a similar character of which the offence for which sentence is to be imposed forms part.
(2) The prosecutor may refrain from furnishing the court with particulars of injury, loss or damage suffered by a person if the person has expressed a wish to that effect to the prosecutor.
(3)The validity of a sentence is not affected by non-compliance or insufficient compliance with this section.
7A—Victim impact statements
(1) A person who has suffered injury, loss or damage resulting from an indictable offence committed by another may furnish the trial court with a written personal statement (a victim impact statement) about the impact of that injury, loss or damage on the person and his or her family.
(2) A victim impact statement must comply with and be furnished in accordance with rules of court.
(3)     The court, on convicting the defendant of the offence—
(a)     will, if the person so requested when furnishing the statement, allow the person an opportunity to read the statement out to the court; and
(b)     in any other case, will cause the statement to be read out to the court.
(3a) If the court considers there is good reason to do so, it may exercise any of the powers that it has with regard to a vulnerable witness in order to assist a victim who wishes to read out a victim impact statement to the court.
(4) The validity of a sentence is not affected by non-compliance or insufficient compliance with this section.
I have some doubt as to whether I am obliged to now accept the Victim Impact Statement which does not contain new information, but instead provides information which could have been made available to the Magistrate. I express no concluded view on this. Having looked at its contents in order to assess whether it is appropriate to admit it in all of the circumstances, I consider that it adds little to what might otherwise be obvious from the nature of the organisation as to its effects. I bear in mind that this was an Aboriginal not-for-profit organisation designed to assist the very needy Aboriginal women and children who seek to use its facilities at times when they have been subjected to violence and distress. Taking money from such an organisation is a serious offence and was no doubt distressing for those who worked in the organisation and those women who were recipients of services.
Further, in re-sentencing I take into account the following factors:
·It is a Crown appeal and because of the respondent’s exposure to double jeopardy, I should substitute a sentence towards the lower end of the range of available sentences.[13]
·The totality principle.
·The respondent has been on a good behaviour bond for a period of two and a half months since her sentencing.
·The respondent has previously had the benefit of a suspended sentence and was no doubt relieved that there was no requirement for her to serve an immediate term of imprisonment.
[13] Dinsdale v The Queen (2000) 202 CLR 321, 340-1 per Kirby J.
Notwithstanding those matters, I consider that the nature of the overall offending, its circumstances and the matters I have adverted to in finding error by the sentencing Magistrate, warrants a starting point of four and a half years imprisonment. This should be reduced to three and half years to reflect the respondent’s early plea of guilty.
Turning to the non-parole period. I consider that a merciful non-parole period should be imposed to adequately reflect the following factors:
·The respondent’s lack of previous convictions;
·Her efforts towards rehabilitation;
·Her need for psychological services,
·The fact that she is undergoing psychological treatment;
·Her expressions of remorse;
·The vulnerability of her two young children; and
·The period that she has spent on a good behaviour bond.
I therefore fix a non-parole period of 10 months.
For the aforementioned reasons, in particular the seriousness of the offending, I consider that there is no good reason to suspend the sentence and I decline to do so. Accordingly I make the following orders:
1.Appeal allowed.
2.The sentence imposed by the learned Magistrate, which included suspension of imprisonment, be set aside and the following sentence be imposed in lieu thereof: three and a half years imprisonment with a non-parole period of 10 months.
3.In all other respects, the orders of the Magistrate are confirmed.
I will hear the parties as to where the respondent will surrender herself to begin the sentence, and when the sentence is to commence.