POLICE v Perry

[2006] SASC 343

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

POLICE v PERRY

[2006] SASC 343

Judgment of The Honourable Justice David

17 November 2006

MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT

The appellant pleaded guilty to 14 counts of fraudulent conversion and 71 counts of theft against his employer over a period of approximately 2 years and totalling $65,017.05 – the appellant’s offending related to gambling addiction – the appellant took part in a 12 month court diversion program – his final report from the program stated that the appellant had made significant progress and had optimistic prospects for rehabilitation – the learned sentencing magistrate sentenced the appellant to imprisonment for 2 years and 3 months with a non-parole period of 12 months – the magistrate did not refer to the appellant’s involvement in the program in his sentencing remarks – whether the magistrate erred in the exercising of his discretion not to suspend the sentence of imprisonment – whether the sentence was manifestly excessive and did not give sufficient allowance to the appellant’s previous good behaviour, his addiction to gambling and the steps taken to address this addiction – held, appeal allowed – the magistrate should have expressly referred to involvement in the program given the significance – appellant re-sentenced – imprisonment for 18 months, non-parole period of 6 months unsuspended.

Criminal Law Consolidation Act 1935 s 184, s 134(1); Criminal Law (Sentencing) Act 1988 s 18A, referred to.

POLICE v PERRY
[2006] SASC 343

Magistrates Appeal:  Criminal

1. DAVID J.               The appellant pleaded guilty to 14 counts of fraudulent conversion, contrary to s 184 of the Criminal Law Consolidation Act 1935 and 71 counts of theft, contrary to s 134(1) of the Criminal Law Consolidation Act 1935. All offences were of a similar nature, but the legislation concerning theft was altered in 1983 so that the old offence of fraudulent conversion was replaced.

2. From 15 January 2003 until 29 December 2004, the appellant defrauded his employer of $65,017.05. During that period, he held the position of paymaster in his employer’s company and the 85 counts to which he pleaded guilty involved discrete amounts of money, whereby he would access his employer’s payroll database, record a payment to another employee, and then alter documentation which was meant to go to the bank and arrange for payment into his own bank account. The various amounts taken range from $200 to $1,835.25. Although there are good prospects for restitution, no money has as yet been repaid. The motivation for his offending was his addiction to gambling.

3. The magistrate recorded convictions on the 85 counts and imposed one sentence under s 18A of the Criminal Law (Sentencing) Act 1988, namely a term of imprisonment for two years and three months, with a non-parole period of 12 months. He refused the appellant’s submission that whatever sentence was imposed should be suspended. He also made orders for compensation.

4. The plaintiff appeals against the sentence. He contends that the sentence should have been suspended, or alternatively that the non-parole period was too high and did not give sufficient allowance for the appellant’s previous good record, his addiction to gambling, and the steps that he has taken between the time of his arrest and sentence to address his addiction by his involvement in the Magistrates Court Diversion Program (“the Program”).

5. The appellant was referred to the Program when he appeared and pleaded guilty on 20 December 2005. An interim report dated 17 January 2006 recommended that he be accepted as a participant. On 20 March 2006, a report described as a “1^st Court Review” and dated 8 March 2006 was provided to the sentencing magistrate. On 22 May 2006, a further report described as “2^nd Court Review” and dated 9 May 2006 was provided to the sentencing magistrate. On 17 July 2006, a report described as the “Final Report” and dated 11 July 2006 was provided to the sentencing magistrate, who remanded the matter until 21 July 2006, when he heard submissions.

6. The sentencing magistrate therefore had before him three quite detailed reports describing the appellant’s involvement in the Program and dealing with his pathological gambling disorder. The conclusion reached by the author of the final report was as follows:

   Mr Perry was a 50-year-old man who had presented with a Pathological Gambling Disorder and reactive depression (in the context of his current circumstances related to his previous gambling behaviour). Further, Mr Perry had continued to endure several compounding issues resultant of his behaviour which had included vocational, relationship, accommodation and financial issues.

   Over the course of his Program participation, Mr Perry had demonstrated a consistent effort to maintain the required level of contact with the GATS Counselling and Treatment Service. As a direct result, Mr Perry had reportedly achieved several treatment gains, which had specifically included abstinence (55-weeks), improved psychological functioning and a professional and pro-social network. While Mr Perry was nearing successful completion of the 12-month program, it was encouraged that ongoing regular contact continue, and indeed, Gamblers Anonymous was an indefinite professional support available to the participants.

   Mr Perry’s manner of engagement with Program staff had consistently been respectful and co-operative, at times providing a candid account of the emotional effects his behaviour had posed. It had appeared that Mr Perry had achieved a level of insight into the detrimental effects and had clearly conveyed certain preventative measures he had implemented to avoid a relapse. A rudiment of recovery from addiction was awareness and acceptance and from the accounts provided by the aforementioned treating practitioners, it had appeared that Mr Perry had progressively achieved a level of insight.

   It was respectfully requested that Mr Perry be commended for his commitment to the rehabilitative process and the subsequent treatment gains. Mr Perry had completed the standard 6-month period of Program participation and had ongoing professional support available to him, and it was therefore respectfully requested that his Diversion Court matters be finalised on this occasion.

7. The appellant now argues that in sentencing, the magistrate did not give sufficient weight to the fact that he had involved himself in an attempt to rid himself of his gambling addiction by entering the Program, and also did not give sufficient weight to the contents of the reports that were before him.

   The Magistrate’s Decision

8. In his remarks on penalty the magistrate properly concluded that the matters were serious because of the appellant’s abuse of trust, and also because of the extent of the wrongdoing. In the exercise of his discretion he considered that the serious aspects of the offending outweighed the mitigating factors.  However, he seemed to have paid very little, if in fact any, attention in his remarks to the question of the appellant’s gambling addiction, the steps he had taken to address the addiction, and the material which was provided to him as a result of the appellant’s involvement in the Program. The only thing he seems to say on the topic is that an aggravating feature of the offending was that the money was dissipated and used to support a gambling habit in the form of poker machines. There is no reference to the reports that were tendered.

9. Mr Phillips, for the respondent, argues that as the magistrate received all of the reports during the course of the appellant’s involvement in the Program, it must be assumed that he took the contents of those reports into account when sentencing. However, in my view, those factors were of such significance that they could not be ignored in the magistrates sentencing remarks. I am not suggesting that a gambling addiction is any excuse for a prolonged course of dishonesty. However, those matters personal to the accused should have been dealt with in the sentencing remarks. The omission of these matters from the remarks suggests that they were given insufficient weight by the sentencing magistrate. Consequently, I find that the sentencing process has miscarried.

   Conclusion

10. The appeal is allowed. However, I agree with the magistrate that the offending is serious, and I agree that his decision not to suspend the term of imprisonment was correct. Bearing in mind that the appellant has earnestly addressed the core reason for the offending, namely his gambling addiction, and that the final report is optimistic, the appropriate sentence would be a reduction to the head sentence and the setting of a relatively low non‑parole period. I impose a sentence of 18 months imprisonment, with a non-parole period of six months, both dating from when his original sentence commenced, namely 27 July 2006. I would confirm the orders for compensation made by the magistrate.