Police v Melgaard

[2009] NSWLC 4

Local Court of New South Wales

CITATION:	Police v Melgaard [2009] NSWLC 4
JURISDICTION:	Criminal
PARTIES:	Police Jill Irene MELGAARD
FILE NUMBER:	H33771437
PLACE OF HEARING:	Albury Local Court
DATE OF DECISION:	02/06/2009
MAGISTRATE:	Magistrate Lerve
CATCHWORDS:	Larceny as a servant
LEGISLATION CITED:	Crimes Act 1900
CASES CITED:	Le v R [2006] NSWCCA 136 R v Assi [2006] NSWCCA 257 R v Boney [2008] NSWCCA 313 R v Barlow [2008] NSWCCA 96 R v Brown (unrep) NSWCCA 1994 R v Cahyadi [2007] NSWCCA 1 R v Caradonna (2000) 118 A Crim R 312 R v Carroll [2008] NSWCCA 218 R v Doan (2000) 115 NSWLR 115 R v Falzon & Pullen (unrep) NSWCCA 1992 R v Henry (1999) 46 NSWLR 346 R v Hallocoglu (1992) 29 NSWLR 67 R v Huynh [2008] NSWCCA 16 R v Mears (unreported) NSWCCA 1991 R v Molesworth [1999] NSWCCA 43 R v Mungomery (2004) 151 A Crim R 376 R v Nguyen [2007] NSWCCA 14 R v Pantano (1990) 49 A Crim R 328 R v Phelan (1993) 66 A Crim R 446 R v Pont (2000) 121 A Crim R at 36 R v Schodde (2003) 142 A Crim R 307 R v Thompson & Houlten 49 NSWLR 383 R v Wegener [1999] NSWCCA 405 R v Zamagias [2002] NSWCCA 17
TEXTS CITED:
REPRESENTATION:	Sgt. Lesker Mr. M. Cronin
ORDERS:

The charges and the pleas

1. The offender stands for sentence in respect of the following three charges that she:

Between 1 July 2005 and 30 June 2006 at Ettamogah in the State of New South Wales, did steal certain property, namely $3,562.90, the property of Kevin Robert Osmand, the said Jill Irene Melgaard being a clerk to the said Kevin Robert Osmond, contrary to s. 156 of the Crimes Act, 1900; and

Between 1 July 2006 and 30 June 2007 at Ettamogah in the State of New South Wales, did steal certain property, namely $48,556.16, the property of Kevin Robert Osmand, the said Jill Irene Melgaard being a clerk to the said Kevin Robert Osmond, contrary to s. 156 of the Crimes Act, 1900; and

Between 1 July 2007 and 30 April 2008 at Ettamogah in the State of New South Wales, did steal certain property, namely $37,308.15, the property of Kevin Robert Osmond, the said Jill Irene Melgaard being a clerk to the said Kevin Robert Osmond, contrary to s. 156 of the Crimes Act, 1900.

2. The offender pleaded guilty to each of those charges on 5 August 2008, which was the first return date. Accordingly, the pleas of guilty were entered at the very first available opportunity. In these circumstances I allow the full 25% discount for the utilitarian value of the pleas of guilty. On this issue of the discount for the plea of guilty it was held in R –v- Falzon & Pullen unrep. NSWCCA 20.1.1992 that a plea of guilty in a matter of “white-collar” crime “attracts a considerable measure of leniency”. That decision was decided before the “Guideline Judgment” on pleas of guilty: R –v- Thompson & Houlten 49 NSWLR 383.

Facts

3. As is the usual practice in the Local Court the matter proceeded by way of tender of a Police Fact Sheet. Mr. Cronin on behalf of the offender submitted, and I accept, that the Fact Sheet tendered was the original Fact Sheet prepared and that there have been no amendments to that document. There was no apparent objection to anything contained within that Fact Sheet, and accordingly, I proceed to sentence on the basis that what is contained within that Fact Sheet are agreed facts. Relevantly, that Fact Sheet recites:

“The victim of these offences Mr. Kevin Osmand runs an enamelling named Ettamogah Enamelling. The business has operated for approximately 15 years and currently employs 3 people. In 2005 Mr. Osmand employed the accused as a casual book keeper for his business. Her duties included book keeping, payment of accounts and records for business. There were no set hours however the accused generally worked approximately 2 days a week on average and she was to be paid at $18 per hour. The accused had authority to handle money on behalf of the business and was responsible for the creation and maintenance of all financial records.

In April Mr. Osmand has reason to examine his accounts and found a number of inconsistencies. As a result of this further examination and audit of the accounts was made and Mr. Osmand reported the matter to police. It was found that there were numerous transactions from his account to 3 accounts held with the Bendigo Bank operated by the accused. These payments for alleged hours worked by the accused and/or false creditor payments for businesses.

On 28/5/2008 the accused was arrested at her home address and after cautioning was conveyed to Albury Police Station. After having her rights read/explained as per Part 9 LEPRA the accused anticipated in an ERISP interview. The accused agreed that she was employed by Osmand and that she was responsible for the creation and maintenance of the financial records. Regarding the pay records of the accused she stated that she was doing work for the business which she did not record in the business records but recorded in diaries for her own business. She stated that these records were in diaries at her home for these financial years. The accused could not explain the monies she had deposited into her accounts as fake creditor payments for the business. She denied having a gambling habit despite agreeing with her own bank records indicating numerous cash withdrawals from various poker machine venues in the Albury area. As a result of the accused’s information regarding the records she made in the diaries a search warrant was applied for, granted and executed at her home address after the interview. No diaries were found. The accused gave a description of them and produced a current financial year diary in which she said she had records. This was inspected and recorded on video during the search warrant. The diary showing no records of any kind as described by the accused. The accused was informed that the matters would be reported and summons issued.

As a result of the audit of the company’s financial records and of the bank’s statements from the company and of the accused there are shortfalls for the 3 financial year periods as described:

Offence 1: Financial year 2005/6. There is a financial shortfall of $2562.90 made up of overpayments by the accused to herself for hours allegedly worked. This figure is not counting money she was entitled to as her wages.

Offence 2: Financial year 2006/7. There is a financial shortfall of $48,556.16 made up of overpayments by the accused to herself for hours allegedly worked and fake creditor payments. This figure is not counting money she was entitled to as her wages..

Offence 3: Financial Year 2007/8. There is a financial shortfall of $37,3088.15 made up of overpayments by the accused for hours allegedly worked and fake creditor payments. This figure is not counting money she was entitled to as wages.

As a direct cause of the accused’s actions the business records are incomplete and all B.A.S. statements and taxation records have to be re done. The superannuation for the company’s employees is also incoreect and will have to be reassessed. Various machines had to be refinanced due to lack of funds the company’s accounts”.

Assessment of the Criminality

4. The total involved is in the vicinity of $90,000. The fraud was committed over a period of three years and the offending was ongoing. The fraud involved a substantial abuse of trust. I am of the opinion that this matter is at or about the mid-range of seriousness for matters of this type. This assessment is made in respect of all such offences, and not merely offences that come before the Local Court. I note however, that in R –v- Brown unrep. NSWCCA 1.8.1994 Simpson J. said:

“…white collar crime itself is so various in its manifestations and nature that it is scarcely susceptible of precise definition or of defined sentencing principles”.

Maximum Penalty

5. The maximum penalty for an offence of Larceny as a Servant is ten years imprisonment on Indictment. That is an indication as to the seriousness with which the Parliament views this offence. The matters on which I have to pass sentence are matters to which the principles enunciated by the Court of Criminal Appeal in R –v- Doan (2000) 115 NSWLR 115 apply. In that decision Grove J. (Spigelman CJ, Kirby J. agreeing) said at [35]:

“The result of true construction of the statutory provisions in New South Wales is that, what has been prescribed is a jurisdictional maximum and not a maximum penalty for any offence triable within that jurisdiction. In other words, where the maximum applicable penalty is lower because the charge has been prosecuted within the limited summary jurisdiction of the Local Court, that court should impose a penalty reflecting the objective seriousness of the offence, tempered if appropriate by subjective circumstances, taking care only not to exceed the maximum jurisdictional limit. The implication of the argument of the appellant that, in lieu of prescribed maximum penalties exceeding two years imprisonment, a maximum of two years imprisonment for all offences triable summarily in the Local Court has been substituted must be rejected. As must also be rejected the corollary that a sentence of two years imprisonment should be reserved for a ‘worst case’”.

Criminal History

6. The offender is 64 years of age. There are no matters recorded against her and accordingly, she is to be dealt with as a person of prior good character. She is very much assisted by her record. However, in R –v- Phelan (1993) 66 A Crim R 446 at 448 Hunt CJ at CL (Smart & James JJ agreeing) said:

“This Court has said on many occasions that prior good character is of less weight in such a situation of repeated offences over a period of time that it is when the offence committed is an isolated one”.

Matters of General Principle

7. The issue of general deterrence is a significant factor to the taken into account in passing sentence in respect of matters involving a breach of trust by an employee – see generally the cases extracted by Greg James J. in R –v- Pont (2000) 121 A Crim R at [36]-[43]. At [43] his Honour (Beazley JA, Wood CJ at CL agreeing) said:

“But it was conceded, on the authorities in this court, that where there are breaches of trust by employees, particularly involving large or substantial sums, involving systematic dishonesty attended by planning and some sophistication, general deterrence requires at least usually or in the absence of special features, that there be substantial sentences of imprisonment”.

8. Much earlier, in the decision of R –v- Pantano (1990) 49 A Crim R 328 Wood J (Carruthers J. agreeing) said at 330:

“…those involved in serious white collar crime must expect condign sentences. The commercial world expects executives and employees in positions of trust, no matter how young they may be, to conform to exacting standards of honesty. It is impossible to be unmindful of the difficulty of detecting sophisticated crime of the kind here involved, or of the possibility for substantial financial loss by the public. Executives and trusted employees who give way to temptation cannot pass the blame to lax security on the part of management. The element of general deterrence is an important element of sentencing for such offences”.

9. It is to be immediately observed that in the matters of Pont and Pantano the amounts of money involved were more substantial than the amount of money involved in the matter presently under consideration. However, I am of the opinion that the sum of $90,000 can be accurately described as substantial. Moreover, it seems to me that the matters of general principle stated in Pont and Pantano are of general application.

10. More recently in the decision of R –v- Mungomery (2004) 151 A Crim R 376, Hulme J. (Spigelman CJ, Adams J. agreeing) said at [40]-[41]:

“40 In this regard authority makes it clear that the amount of money involved in premeditated deception is an important, and the period of time over which offences are committed a relevant, factor in determining the extent of criminality – see Hawkins (1989) 45 A Crim R 430, R v Mears (unreported, NSWCCA, 14 March 1991), referred to by Wood CJ at CL and Sperling J in R v Woodman [2001] NSWCCA 310.
41 The cases in this area also stress the importance of general deterrence. Organisations, be they business or government, cannot operate effectively without placing a good deal of trust in their employees. Opportunities for the abuse of that trust are legion and breaches are often difficult to detect. Commonly, offenders are able to continue their depredations for long periods. Often matters only come to light when the total amounts involved become too large to be overlooked. It seems to me an inevitable inference that there must be many cases where offending is never discovered – a factor also arguing for sentences which are substantial deterrents”.

11. In the matter presently under consideration the offender was a trusted employee of a small family type business. She was entrusted to essentially take care of many if not all of the financial affairs of that business. She was very much in a position of trust. Using that position of trust she was able to hide her offending by the creation of what are described in the Fact Sheet as “fake creditor payments”. The offending went on for a period of about three years. The sum of $90,000 would be a very significant sum to the Osmand business and indeed, could well have adversely affected that business’s continued commercial viability.

12. Returning to the decision in Brown (supra) Simpson J. said:

“The fourth of the Crown arguments is concerned with principles of sentencing that have evolved in relation to so-called "white collar crime". But white-collar crime itself is so various in its manifestations and nature that it is scarcely susceptible of precise definition or of defined sentencing principles. I do not read the cases cited as laying down any proposition of the inevitability of a full-time prison sentence in any case which could be brought within the description of "white collar crime".

13. Hunt CJ at CL in that same decision said:

“ I do not accept that it is appropriate to lay down any rule that, in all cases of serious white collar crime, a sentence other than a full-time custodial one by itself demonstrates error requiring a Crown appeal to be upheld. There is a wide range in the nature of white collar crimes and necessarily a wide range in the nature of the appropriate sentences to be imposed”.

14. Although these are clearly matters of general principle by which I am bound, it is nevertheless instructive to consider the facts. The benefit accrued to the offender in Brown was the use of the money. Further, the conduct was committed in a misguided attempt to keep a failing business afloat.

15. There are three charges in respect of the same ongoing course of offending on which I have to pass sentence. The three charges relate to three consecutive financial years. In those circumstances it is my opinion that the sentence in respect of one count can adequately take into account the criminality of the others –see for e.g. R –v- Cahyadi [2007] NSWCCA 1 and R –v- Nguyen [2007] NSWCCA 14.

Offender’s gambling addiction

16. The facts presented indicate that the motive of the offender in the dishonesty conduct was to fund a gambling addiction. The motive therefore, in my opinion, must be clearly seen and dealt with as greed as opposed to need. An addiction to gambling “generally does not warrant the extension of leniency”. Grove J. (McClellan CJ at CL, Fullerton J. agreeing) said in R –v Huynh [2008] NSWCCA 16 at 11:

It was, in my view, open to his Honour to find that the respondent suffered from some form of gambling addiction. The appellant challenged the description "pathological" and drew attention to the absence of psychiatric or psychological support for such a diagnosis. It is not necessary to pursue analysis of this detail and I would not determine error in his Honour's finding that the existence of the respondent's gambling debts was included in the inspirations for her commission of the crime. Whether this is a matter of mitigation is a different question. I agree with the Crown submission that the observations of Latham J in Le v R [2006] NSWCCA 136 are apposite:
"To the extent that his Honour found that the applicant's succumbed to gambling and that it was 'not unlikely that she may have been groomed and pressured into this importation by others who do not share her naivety and compliant personality', they are unremarkable features of many importation offences. It is commonplace for offenders to seek to explain participation in an importation, other than simply admitting that it was a premeditated act committed for financial gain. Whether that explanation be the offender's vulnerability arising out of a drug addiction, or a gambling addiction, it generally does not warrant the extension of leniency. The deterrent value of sentences imposed on those who import drugs would be undermined if leniency were extended merely on the basis that an unsophisticated and compliant offender came under the sway of more unscrupulous people."

17. Likewise, in the decision of R –v- Henry (1999) 46 NSWLR 346 (Guideline Judgment on Armed Robbery) Spigelman CJ said at [203]:

“Counsel making these submissions was driven to accept the proposition that an addiction to gambling, with its attendant need for money, could similarly be the basis for a claim for mitigation. He went further and indicated that an elevated sex drive which also had a physiological basis, could be a mitigating factor for the commission of a rape or for the conduct of a paedophile. In my opinion all these submissions should be rejected”.

18. The authorities to which I have referred relate to importation of prohibited drugs and armed robbery. However, there is in my opinion no reason to doubt that the principles so expressed are equally applicable to matters of dishonesty in general and “white collar crime” in particular.

19. Particularly involving matters of fraud Howie J. (Tobias JA, Rothman J. agreeing) in R –v- Assi [2006] NSWCCA 257 said at [27]:

“Although his gambling habit may explain his fall into such serious criminal conduct and give some hope of rehabilitation in the future, it has been held to be a rare case where an offender can seek mitigation of penalty based upon an addiction to gambling, even where it is pathological: R v Molesworth [1999] NSWCCA 43”.

20. There were a number of seriously aggravating features present in Assi that are not present in the matter presently under consideration. But again, that part of the decision extracted in the paragraph immediately above is a matter of general principle by which I am bound. It was not put to me, nor on the material before me would I be justified in making a finding that this is one of those “rare cases where an offender can seek mitigation of penalty based upon an addiction to gambling”.

Issue of compensation and Repayment

21. Mr. Cronin during the offender’s case on sentence tendered a letter from “Border Conveyancing” which in part indicates that the offender has put her home up for sale and has provide an Irrevocable Authority to that conveyancing company to pay Kevin Osmand trading as Ettamogah Enamelling $89,427.21. Accordingly, I can proceed to sentence on the basis that the Mr. Osmand will be paid back a very significant portion of the amount he has lost.

22. At the sentence hearing the prosecutor submitted that in additional to the base amount of $89,427.21 I would also make an order for compensation for the work performed by accountants to audit the accounts and to make good the B.A.S statements and the like. The total claim is for $109,194.39. The details of how that figure is reached is set out in the two page document from Ettamogah Enamelling. The prosecutor argued that to allow this amount is very similar to when compensation is ordered for a broken window where the amount allowed includes the labour to make good the damage as well as the glass. I accept that submission and I allow the sum of $5,603 for the accountant’s fees in addition to the loss of $89,427.21.

23. The signing of the Irrevocable Authority speaks well of the contrition by the offender. On the issue of repayment of moneys dishonestly appropriated Hunt CJ at CL in R –v- Phelan (1993) 66 A Crim R 446 at 448 said:

“In many of these cases, some emphasis has been placed upon the fact that the amount of money involved has been voluntarily repaid, but in my view it would be wrong to interpret those cases as supporting any proposition that an offender is able to purchase mitigation. Where there has been a substantial degree sacrifice involved in the repayment, that is a matter which may properly be taken into account by way of mitigation. Otherwise, in my view, it is more a matter of aggravation when there has been a loss which is effectively irretrievable than a matter of mitigation when the loss has simply been made good”.

24. Mr. Cronin submitted on behalf of the offender that the repayment of the loss in the matter presently under consideration involved a substantial degree of sacrifice given that the house is where the offender lived almost all of her married life, where the children were raised and where she nursed her late husband through a terminal illness. The value of the house is in the vicinity of $295,000 and there is a mortgage of about $110,000 to be paid out of the proceeds in addition to the usual costs associated with a real-estate conveyance. In all of these circumstances I am of the opinion that the repayment does in fact involve a substantial degree of sacrifice.

Pre Sentence Report

25. The offender is assisted by the pre-sentence report. She was honest with the author of the report as to her offending. She maintained that she felt isolated after the death of her husband. The report indicates that the offender has begun the counselling process in respect of her addiction. That is also confirmed by other material tendered on behalf of the offender. The report also indicates that she was “tearful” when she reflected on the distress that she felt she caused her family and the victim. I accept that the offender is genuinely contrite.

26. The offender is suitable for a low level of supervision directed towards the maintenance of counselling for the gambling addiction. She is suitable for Community Service and is eligible and suitable for periodic detention. However, I indicated at the sentence hearing and I remain of the opinion that the criminality involved is such that a sentence of custody is the only appropriate sentence.

Report tendered on behalf of the offender

27. Reports written by Dr. Egan-Vine, Barry Prater - a Gambling Counsellor and Dr. Susette Sowden were tendered. Dr. Sowden is a highly qualified and experienced clinical psychologist practicing in Albury. Dr. Egan Vine is a Grief and Loss Counsellor.

28. Dr. Egan Vine sets out some of the relevant history relating to the loss of the offender’s husband. There is family conflict in respect of her son who is estranged following allegations made against his late father. The offender is receiving ongoing counselling from Dr. Egan Vine in respect of looking as “ways to manage her distress and come to terms with her own behaviour”. The gambling was apparently a coping mechanism following the loss of her husband.

29. Mr. Prater is a counsellor with a local church. The offender has attended fortnightly sessions. Mr. Prater opines that she is starting to have a clearer understanding of her gambling behaviours and the motivating factors that contributed to that behaviour. He maintains that the offender will need ongoing treatment.

30. Those two reports auger well for the rehabilitation of the offender. I accept that she has taken substantial steps towards her own rehabilitation and that she will continue to undertake that rehabilitation process. I also accept that in the circumstances it is highly unlikely that Mrs. Melgaard will re-offend.

31. Dr. Sowden’s comprehensive report goes into considerable detail of the difficulties experienced by the offender. Her upbringing was unremarkable. Her four children and well placed. There was no superannuation and accordingly, investment properties had to be sold after her husband’s death. He third child, a son, has made allegations that his father abused him. This has been “devastating” to the offender.

32. Dr. Sowden opines that the offender may never have adequately dealt with the death of her husband. On the material available to me, it seems that that is very likely. Further, Dr. Sowden maintains, and I accept, that the offender is remorseful. The ultimate diagnosis was that the offender was suffering from a major depressive disorder.

33. Given the comprehensive report and the testing undertaken by Dr. Sowden I am prepared to accept for the purpose of proceeding to sentence that the offender was suffering from a depressive disorder. This, however, is only a mitigating factor. It is not to the extent that the principles enunciated by the line of the authority of Engert 84 A Crim R 67 etc. are enlivened to the extent that the offender is not to be used as a vehicle for general deterrence.

Plea in Mitigation

34. Mr. Cronin is to be commended on the manner in which he conducted the offender’s case. He did and said everything that could have been done and said on behalf of the offender. It was appropriately accepted that the matter was very serious. It was submitted and I accept that although serious, the offending was not particularly sophisticated. It was put, and I accept that given the nature of the offender the three charges do not require cumulative sentences.

35. The plea of guilty at the first opportunity was emphasised. It was put and I accept that there was very substantial utilitarian value in the plea. I have already dealt with that issue.

36. The personal background, details of which I have already summarised when dealing with the reports tendered on behalf of the offender. I accept that in many ways the offender has had a difficult life, certainly of recent times. She was married 28 years and her husband died of a brain tumour. She nursed him through the twilight of his life. She has 4 children and 4 grandchildren. She enjoys family support. I note that a number of her family were with her on the date of the sentence hearing and are with her today. This also augers well for rehabilitation and the fact that she is unlikely to re-offend.

37. It was put and I accept that the offender has done a considerable amount of work in respect of her gambling addiction. She now accepts that there are number of underlying issues that contributed towards her offending behaviour. Those issues remained unresolved for too long.

38. Mr. Cronin addressed on the reports of Dr. Egan-Vine, Mr. Prater and Dr. Sowden. I have already addressed the issues contained in those reports. It is significant that the offender accepts full responsibility for her offending behaviour. It was put and I accept that there have been substantial efforts at rehabilitation and that there is no likelihood that she will re-offend.

39. Further, Mr. Cronin addressed on the issue of compensation. I have dealt with those submissions above under a separate heading.

40. Appropriately Mr. Cronin submitted that the offending was such that a sentence of custody was the only appropriate sentence in this matter. It was submitted however, that I would suspend that sentence or alternatively, order that any sentence be served by way of periodic detention.

Prosecution submissions

41. The prosecutor submitted that Periodic Detention was within the appropriate sentencing range for this offending. The prosecutor’s submissions were otherwise principally directed to the issue of compensation.

General Remarks

42. I am obliged to give proper regard to the provisions of s. 3A and 5 of the Crimes (Sentencing Procedure) Act 1999. It is inappropriate for me to impose any sentence of imprisonment unless I come to the conclusion that no other sentence is appropriate. See also R v- Zamagias [2002] NSWCCA 17 at [24]-[25]; R –v- Barlow [2008] NSWCCA 96. Given the extent of the offending, the amount of the loss and the ongoing nature of the offending, I am of the opinion that no other sentence other than a sentence of custody is appropriate.

43. The next issue to consider is whether it should be suspended. Howie J. in Zamagias at [32] said:

“Further, a sentencing court must approach the imposition of a sentence that is suspended on the basis that it can be a sufficiently severe form of punishment to act as a deterrent to both the general public and the particular offender. Of course it must also be recognised that the fact that the execution of the sentence is to be immediately suspended will deprive the punishment of much of its effectiveness in this regard because it is a significantly more lenient penalty than any other sentence of imprisonment. The question of whether any particular sentencing alternative, including a suspended sentence, is an appropriate or adequate form of punishment must be considered on a case by case basis, having regard to the nature of the offence committed, the objective seriousness of the criminality involved, the need for general or specific deterrence and the subjective circumstances of the offender. It is perhaps trite to observe that, although the purpose of punishment is the protection of the community, that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation. In such a case a suspended sentence may be particularly effective and appropriate”.

44. Given the need for general deterrence and the seriousness of the criminality involved in the matter presently under consideration I am of the opinion that it is inappropriate to suspend any sentence. It is also timely to remind myself of the decision of the Court of Criminal Appeal in Dodd (1991) 57 A Crim R 349 at 354, namely:

“As Jordon CJ pointed out in Geddes at 556, making due allowance for all relevant considerations, there ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place. Each crime, as Veen (No. 2) (1988) 164 CLR 465 at 472 stresses, has its own objective gravity meriting at the most a sentence proportionate to that gravity, the maximum sentence fixed by the legislature defining the limits of sentence for cases in the most grave category. The relative importance of the objective facts and the subjective features will vary: see for example, the passage from the judgment of Street CJ in Todd [1982] 2 NSWLR 517 quoted in Mill (1988) 166 CLR 59. Even so, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective seriousness of the case: Rushby [1977] 1 NSWLR 594.”

45. Dodd was more recently affirmed by the Court of Criminal Appeal in R –v- Carroll [2008] NSWCCA 218 at [20]-[21].

46. Therefore, the next issue is that of Periodic Detention. Periodic Detention has long been recognised as having a significant degree of leniency built into it, and as being less severe than a sentence of full time imprisonment. Hunt CJ at CL in R –v- Hallocoglu (1992) 29 NSWLR 67 at 73 (paragraph E) said:

“Periodic detention has nevertheless been recognised by this Court in many cases as having a strong degree of leniency built into it and as being outwardly less severe in its denunciation of the crime…”

47. Sperling J. in R –v- Wegener [1999] NSWCCA 405 at [31] – [33] said:

“Periodic detention is substantially more lenient than full time custody for the same period. That is self-evident. Full time custody is custody for seven days a week continuously. Periodic detention is custody for two days a week periodically (which converts to community service after one third of the term has passed). The difference has been recognised in the authorities cited by James J in this case. It was also recognised by the sentencing judge when he said in the course of argument that he was imposing a longer sentence than he would otherwise have fixed because it was to be served by periodic detention

It follows that, speaking generally, a term of imprisonment which is appropriate if served by full time custody would be much too lenient to be appropriate if served by periodic detention. There may be cases where that would not be so but they would be exceptional. In the result, I do not see how a court could, in the ordinary case, conscientiously make an order for periodic detention in relation to a sentence imposed in the usual way. Yet that is what the statute now contemplates will happen.”

48. Bell J. (as she then was) cited that passage was cited with approval in R –v- Schodde (2003) 142 A Crim R 307 at 311 (paragraph [16]). See also the decision of R –v- Caradonna (2000) 118 A Crim R 312, especially the judgment of Dunford J. (Wood CJ at CL and Carruthers AJ agreeing) at 316 – paragraph [24].

49. Further, it is accepted principle that a sentence cannot be extended merely because it is to be either suspended or to be served by way of periodic detention or home detention. I note that home detention is not available in country or rural areas. After much consideration, taking into account the prosecutor’s concession and the other circumstances of the case, including the age of the offender and the fact that the loss will be substantially made good I am of the opinion that I can order that the sentence be served by way of periodic detention.

50. Finally there is the issue of special circumstances. In particular I must guard against any “double counting”. Recently, in the Court of Criminal Appeal in R –v- Boney [2008] NSWCCA 313 Hulme J. (McCellan CJ at CL, Hidden J. agreeing) said at [48]-[49]:

“Altering the ratio between the non-parole and balance of term periods of a sentence from that of 3:1 embodied in s44 of the Crimes (Sentencing Procedure) Act as much as to result in a ratio of 50:50 is sufficiently unusual as to inspire examination. The only reason advanced by her Honour for finding special circumstances, and by inference for apportioning the full term of the sentence as she did, was the opinion of a psychologist that the Respondent required extensive post release supervision and assistance.
49 Given her Honour's conclusion that the Respondent's prospects of rehabilitation were only fair, that opinion provided but scant weight for making the balance of term as long as 3 years. It provided even less weight for reducing the non-parole period to as little as 3 years given the existence and duration of the standard non-parole period (with appropriate allowance for the Respondent's plea), and the need for general and, particularly given the Respondent's past criminal record, personal deterrence”.

51. In the matter presently under consideration I am of the opinion that the prospects for rehabilitation are excellent. There are also the issues contained within the reports of Dr. Egan-Vine and Dr. Sowden. I am of the view that it is appropriate in this matter to substantially vary the statutory ratio between the head sentence and non-parole period.

Conclusion

52. Taking into account all of the aggravating and mitigating factors as I have found them to be, noting that the maximum sentence is one of 10 years imprisonment, I am of the opinion that the appropriate sentence is in the vicinity of 30 months imprisonment. From that must be deducted the discount of 25% for the utilitarian value of the plea. That leaves a sentence of 22 months. This starkly illustrates the effect of the decision in Doan. The matter is assessed initially without reference to the jurisdictional limit of 2 years.

Formal orders

53. In respect of each of the three charges to which the offender has pleaded guilty she is convicted.

Consequent upon those convictions, I sentence the offender to a non parole period of 11 months to commence on:

Thereafter there will be a balance of term of 11 months to commence on

I direct that such sentence is to be served by way of periodic detention. In that regard the offender is to report to the Period Detention Centre at Mannus on

I order compensation in the sum of $95,030.21 payable to Mr. K.R. Osmand trading as Ettamogah Enamelling.

Gordon Lerve

Magistrate

Albury Local Court

06 Feb 09.