R v Buckskin - [2010] SASC 138

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v BUCKSKIN
[2010] SASC 138
Judgment of The Court of Criminal Appeal
(The Honourable Justice Nyland, The Honourable Justice Gray and The Honourable Justice Kourakis)
12 May 2010
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - SUSPENDED SENTENCE OF IMPRISONMENT - PARTICULAR CASES
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
Appeal against sentence - defendant and appellant pleaded guilty to two counts of abuse of public office contrary to section 251 of the Criminal Law Consolidation Act 1935 (SA) - at time of offending defendant was a police officer - defendant sentenced to a term of imprisonment of two years and nine months - non-parole period of 12 months fixed - sentence not suspended - whether Judge erred in failing to suspend sentence - whether Judge had inadequate regard to witness statements provided - whether Judge gave undue weight to lack of contrition - whether Judge inappropriately took into account uncharged acts - whether Judge failed to give sufficient weight to fact that defendant obtained no pecuniary benefit from offending - whether Judge gave insufficient weight to defendant’s cooperation with the authorities - whether Judge impermissibly considered question of suspension before determining appropriate sentence - whether Judge gave inadequate consideration to effect of imprisonment on defendant’s dependants - consideration of gravity of offending in abuse of public office.
Held: appeal dismissed - the matters complained of were appropriately considered by the Judge - gravity of offending warranted sentence imposed - no justification for suspension disclosed - sentence imposed appropriate.
Criminal Law Consolidation Act 1935 (SA) s 251 and s 352; Criminal Law (Sentencing) Act 1988 (SA) s 6, s 9, s 10, s 11 and s 38; Sentencing Act 1995 (WA) s 76; Family Law Act 1975 (Cth) s 60CA, referred to.
R v Many (1990) 51 A Crim R 54; Dinsdale v The Queen (2000) 202 CLR 321; House v The King (1936) 55 CLR 499, discussed.
R v Adami (1989) 51 SASR 229; R v Mangelsdorf (1995) 66 SASR 60; R v Carpentieri (2001) 81 SASR 164; R v Wirth (1976) 14 SASR 291; Bates v Police (1997) 70 SASR 66; Neill v Police [1999] SASC 270; R v Hinton (2002) 134 A Crim R 286; R v Penno (2004) 236 LSJS 457; R v Nath (1994) 74 A Crim R 115; R v Olbrich (1999) 199 CLR 270; R v Reiner (1974) 8 SASR 102; Wood v Samuels (1974) 8 SASR 465; R v O’Keefe [1969] 2 QB 29; Lander v Police (2002) 131 A Crim R 59; R v Spong (2008) 100 SASR 55; R v Stubberfield [2005] SASC 383; R v Wilton (1981) 28 SASR 362; R v Palliaer (1983) 35 SASR 569; Tame v Fingleton (1974) 8 SASR 507; Sullivan v The Queen [1975] Tas SR 146; R v Moffa (No 2) (1977) 16 SASR 155; R v Spiers (1983) 34 SASR 546; Boyle v The Queen (1987) 34 A Crim R 202; R v Maslen (1995) 79 A Crim R 199; R v Warying (1982) 62 A Crim R 1; R v Amuso (1987) 32 A Crim R 308; Stewart v The Queen (1994) 72 A Crim R 17; Walsh v Department of Social Security (1996) 67 SASR 143; Hillman v Black (1996) 67 SASR 490; Jones v Dodd (1999) 73 SASR 328; Hoare v The Queen (1989) 167 CLR 348; R v Horstmann [2010] SASC 103; Winzor v The Queen [1991] SASC 2732; R v Moyle (2007) 96 SASR 287, considered.

R v BUCKSKIN
[2010] SASC 138
Court of Criminal Appeal: Nyland, Gray and Kourakis JJ
NYLAND AND GRAY JJ

This is an appeal against sentence.
Background
The defendant and appellant, Debra Lee Buckskin, was charged with four counts of abuse of public office contrary to the provisions of section 251 of the Criminal Law Consolidation Act 1935 (SA).[1] The maximum penalty prescribed by section 251 is imprisonment for seven years. At all relevant times the defendant was a sworn police officer. On 21 October 2009, the defendant pleaded guilty to two counts on the information, following which the Director of Public Prosecutions entered a nolle prosequi to the remaining two counts.
[1] Section 251 of the Criminal Law Consolidation Act 1935 (SA) provides:
(1)A public officer who improperly—
(a)exercises power or influence that the public officer has by virtue of his or her public office; or
(b)      refuses or fails to discharge or perform an official duty or function; or
(c)      uses information that the public officer has gained by virtue of his or her public office,
with the intention of—
(d)      securing a benefit for himself or herself or for another person; or
(e)      causing injury or detriment to another person,
is guilty of an offence.
Penalty: Imprisonment for 7 years.
(2)A former public officer who improperly uses information that he or she gained by virtue of his or her public office with the intention of—
(a)     securing a benefit for himself or herself or for another person; or
(b)     causing injury or detriment to another person,
is guilty of an offence.
Penalty: Imprisonment for 7 years.
On 12 March 2006, Chad Tassone was involved in an incident which occurred outside the Rise Night Club in Adelaide. The incident was reported to the police by a member of the public. A police incident report was generated as a result and police action followed. The incident report recorded that the man suspected of assaulting Tassone was an office bearer of a motorcycle gang and police suspected witnesses were reluctant to cooperate because of motorcycle gang involvement.
On 12 July 2006 the defendant accessed the police incident report on the SAPOL computer system, printed the document and provided Tassone with the name and address of a witness. According to the police incident report, Tassone then informed police he wanted no action because the person responsible for the assault was an outlaw motorcycle gang member.
By 18 September 2006, police from the Anti Corruption Branch of SAPOL had obtained warrants in order to listen to and record telephone calls made from Tassone’s mobile telephone, as well as the defendant’s mobile and landline telephones. On 18 September 2006 a series of telephone calls were intercepted by police. Tassone was intercepted contacting the defendant and requesting her to ascertain the ownership details of two motor vehicle registration numbers. The defendant performed the requested checks and telephoned Tassone with the information. In a subsequent telephone call, Tassone requested further information about the owners. The defendant then contacted another police officer, not involved in any of these matters, with a request to carry out further checks. The other officer did so believing that the checks were being made for a legitimate purpose. The identities of the registered motor vehicle owners and details of the occupation of one of the owners were ultimately passed on to a third party by Tassone.
The defendant, when first arraigned in the District Court, pleaded not guilty to all four charges on the information. On 3 March 2009 an order was made that the trial take place on 21 October 2009. As earlier indicated, on 21 October 2009 the defendant pleaded guilty to two counts on the information, and a nolle prosequi was recorded with respect to the other two counts. Sentencing submissions were heard on a number of separate days before sentence was finally imposed on 17 December 2009.
A District Court Judge imposed a term of imprisonment of two years and nine months. The Judge fixed a non-parole period of 12 months and declined to exercise her discretion to suspend the sentence.
In the course of sentencing, the Judge made the following remarks in respect of the topic of uncharged acts:
In addition to these charges I am asked to have regard to other uncharged acts. These uncharged acts place the offences you have pleaded guilty to in context. They do not aggravate the charges but they demonstrate the acts that you are charged with were not isolated and not committed out of naivety on your part. Those acts also inform me of the degree of impropriety of the release of information from the police incident report and the motor registration system, in that they show that you knew Tassone was a criminal and whilst it had been denied to you that he was a member of an outlaw motorcycle gang, that he had at least been involved with an incident where the vice president of the Rebels Motorcycle Club or gang was involved. The uncharged acts demonstrate they were not isolated, low level events, but occurred against a background of an inappropriate and unethical relationship with Tassone.
The Judge addressed the seriousness of the offending:
I have listened to a number of the calls between yourself and Tassone. The attitude that you express and the enthusiasm with which you endeavour to assist Tassone to avoid the proper administration of justice is stomach turning. Anyone who believes in a just system of integrity and fairness would be appalled to listen to the manner in which, for example, you queried why Mr Tassone didn’t give a false name when apprehended by the police and when you expressed regret that the offending hadn’t occurred in your ‘patch’ because you could have made calls to fix it. During submissions I referred to you as a corrupt police officer. That is an accurate statement. You disgrace the many honourable men and women who serve in SAPOL.
…
As I already said, I will not punish you in relation to those other acts even though some of them may amount to criminal conduct. They show your offences to which you pleaded guilty were not acts of naivety or isolated. All of the phones calls listed in schedule provided to me by the prosecution demonstrate that you, at that time, had a complete disregard for the ethics and the responsibilities of the position that you had sworn to uphold. …
…
Returning to Tassone and your relationship with him, I note, however, that the tone of the telephone calls that I have listened to reveals a friendliness and enthusiasm on your part towards Tassone although you deny that there was any sexual relationship between you. Thus, there is no evidence to suggest anything other than a relationship of friendship and possible gratitude on your behalf which led to this offending. I also accept that no actual harm was caused to any person as a result of information improperly accessed and released by you. That was more a matter of good luck than anything else as, in my view, you were completely reckless with respect to the possible consequences of your offending.
…
… It is vital that the community in South Australia has confidence in the integrity of the police department and members of that department. Your behaviour has eroded that confidence. It is also important that any police officers who are minded to access confidential police information for improper or illegal purposes understand that it is a serious matter, if not a serious offence, and that they face condign punishment for such a breach. It is vital that members of the community believe that police will keep confidential material provided for specific purposes.
The Appeal
No complaint is made with respect to the sentence of imprisonment. The issue on appeal is whether the Judge erred in the exercise of her discretion by failing to suspend that sentence. A number of complaints were made about the way in which the Judge dealt with that question.
In order to consider the matters raised on appeal, it is useful to outline some of the defendant’s background. At the time of sentencing, the defendant was aged 37 years. She commenced working with SAPOL in 1991 as a personal assistant and in 1993 became a police officer. In August 1995 her first child was born. The relationship with her son’s father ended but they remained friends, although the defendant accepted the sole responsibility for their son’s upbringing.
In about mid 1997 the defendant formed a new relationship. The defendant and her new partner married in 1999. In January 2001 and March 2002 the two children of this relationship were born.
The defendant’s relationship with her husband was marred by domestic violence. They separated and then divorced in December 2007. All three children have always lived with the defendant. The defendant eventually complained to the police about her husband’s conduct towards her, both during the marriage and following separation. This included allegations of rape and threats to kill. The defendant’s former husband was subsequently charged with offences relating to the defendant and the defendant’s eldest child. Those charges were pending at the time of sentencing submissions but not expected to be heard before the end of 2010.
Failure to have regard to witness statements
In the course of sentencing submissions the defence provided the Judge with material relating to the defendant. This included statements of the defendant of 31 July 2008 and 2 December 2008, two statements of the eldest child and records of interview between the Police and the two younger children. These documents related to the allegations of the violence of the defendant’s husband over a number of years and were the declarations relied upon by the Director of Public Prosecutions in instituting charges against him. The defendant sought to rely upon the contents of these documents to provide background to her personal situation at the time of the offending and also, it was said, to demonstrate the potentially adverse effect upon the children if a custodial sentence were to be imposed.
In the course of submissions the Judge indicated a reluctance to receive those documents and commented:
I just don’t understand that I should embark on an exercise where a man is yet to be tried about those allegations and sentence your client in accordance with the truth of them. I just don’t understand how that’s an appropriate way for me to proceed at the moment.
The Judge was however provided with a report of Dr Raeside, a psychiatrist, who examined the defendant on 18 November 2009. Dr Raeside noted that he had been provided with a copy of the statement of the defendant of 2 December 2008. He referred to the defendant being in genuine fear for her life from her former husband and concluded:
At the time of the offending I believe [the defendant] would have been suffering from Chronic Post Traumatic Stress Disorder as outlined, arising out of the domestic situation. However, whilst this might have explained some of her actions in relation to Mr Tassone (based on threats from her husband), I do not think that these actions are specifically related to her psychiatric state as such.
Further, I could find no evidence that any psychiatric disorder would have prevented her from knowing the nature and quality of her actions, the wrongfulness of them, or render her unable to control her conduct. Any impairment in her judgment is not likely to be due to underlying psychiatric illness. However, it would be consistent with some element of psychological denial, which might have led her to fail to fully appreciate the seriousness of some of her actions. This is separate than a mental illness impairing her, but may serve to explain why she might have engaged in behaviour that a respected police officer might otherwise have been expected not to do.
When the Judge sentenced the defendant, she said:
…because of that matter being a live matter contested before this very court, I do not intend going beyond the oral submissions made to me which I will act upon and the material contained in the report of Dr Raeside. I do not consider it appropriate for me to go beyond that nor do I make any findings specifically; given that [your former husband] will be tried before this court in the future. …
It would seem that the Judge’s reluctance to read the documents and the reference in the course of her remarks to an “alleged assault” arose out of a concern about making any finding given the impending charges against the defendant’s former husband. For the purposes of determining sentence however, the Judge was at liberty to inform herself on such matters relevant to that determination as she thought fit.[2] For the purpose of determining sentence the Judge was not bound by the rules of evidence.[3]The statements contained in those documents were uncontested, consisting as they did of declarations obtained by the Director of Public Prosecutions in support of the impending prosecution. Any reliance by the Judge on matters set out in them was of no relevance at all with respect to the trial of the defendant’s former husband. The Judge was entitled to have regard to them and to place such reliance upon the contents as she thought appropriate. The history of domestic violence outlined by the defendant in that material was a relevant personal circumstance for the consideration of the Judge. Nevertheless, we consider that it was of limited relevance to the fact of the defendant’s offending, bearing in mind the opinion expressed by Dr Raeside in his report that “her actions in relation to Mr Tassone (based on threats from her husband)” were not “specifically related to her psychiatric state…”. Although the Judge did not read the detailed statements, she had regard to, and acted on, the matters set out in Dr Raeside’s report and sentenced on the basis of the defendant’s allegations that she had been the victim of an abusive relationship. As the Judge observed:
I will sentence you on the basis that you alleged that you were a victim of an abusive relationship involving serious acts of violence and sexual offending and I will consider what effect Dr Raeside expresses in respect of that alleged conduct.
[2] Section 6(b) Criminal Law (Sentencing) Act 1988 (SA).
For the purpose of determining sentence, a court—
…
(b)may inform itself on matters relevant to the determination as it thinks fit.
[3] Section 6(a) Criminal Law (Sentencing) Act 1988 (SA).
For the purpose of determining sentence, a court—
(a)is not bound by the rules of evidence; …
In the circumstances, we do not think that the Judge’s failure to have regard to the more detailed information contained in the statements, nor her reference to the domestic violence matters as being “allegations” has resulted in any appealable error.
Contrition
The defendant contended that the Judge attached undue weight to her finding as to a lack of contrition. In early October 2006 the defendant was charged with the present offences and then took part in a lengthy interview with police officers from the Anti Corruption Branch. In the course of that interview the Police informed the defendant that they had a telephone intercept on Tassone’s mobile telephone and were aware of contact which the defendant had with Tassone outside of work. The defendant said that Tassone had done her a favour by intervening with her former husband to stop the domestic violence. She said:
My husband was beating me up and I didn’t know, I didn’t want to go through police, I got a restraint order.
And he said if you want me to handle it and you want the abuse to stop, and yeah, he did me the favour and made sure that I never got hit again.
I think he made a phone call and made contact and said stop beating her up.
But I’ve never been hit since …
Later the interview continued:
… would it be a fair statement that you now feel obliged to provide him with certain information as a result of him helping you out.
No.
… why would you be providing him with this information.
Because of the stuff, the information he gives me. Like drugging young girls with lithium.

Almost 12 months later, in September 2007 the defendant wrote to the Chief Superintendent in charge of the Ethical and Professional Standards Service of SAPOL to make a submission in determining whether her suspension should be without pay. The defendant set out her personal circumstances in some detail, which included the history of her employment with SAPOL. In the letter, she wrote:
The incidents have been misrepresented and at no time did I intend to commit any offences. I will be contesting the charges. I believed at the time I was doing the right thing by exchanging information to assist with police intelligence.
The defendant referred to a problem with respect to employment and requested that the Chief Superintendent take a compassionate approach to the situation on behalf of her children. It appears that her pay continued thereafter. This is one of the matters which the Judge took into account as adverse to her asserted contrition.
The Judge accepted that the defendant had cooperated in answering questions of the Police, but considered that there were times when the defendant held back information, particularly as to the defendant’s knowledge of Tassone and the extent of her relationship and dealings with him. The Judge acknowledged the provision of a number of documents suggesting that the defendant was truly contrite. However, the Judge was sceptical about the asserted contrition in light of the late entry of the pleas of guilty on the eve of the trial, the maintaining of innocence in the letter to the Chief Superintendent and the fact that the defendant continued to receive a salary for over three years while suspended. Notwithstanding those matters, the Judge reduced the defendant’s sentence by almost 10 per cent, to reflect her pleas of guilty.
The question of contrition was a relevant factor when determining the extent to which the offending by the defendant might be mitigated. The Judge had regard to the matters put forward by the defendant in mitigation. The Judge was entitled to give such weight to the evidence as to contrition as she considered appropriate. In so doing, we do not consider she gave undue weight to the material evidencing lack of contrition.
The uncharged acts
The defendant complained that the Judge erroneously took into account the two counts which were the subject of the nolle prosequi. As earlier observed, when sentencing, the Judge referred to the topic of uncharged acts. The Judge was provided with details of those acts, as well as other matters arising from the telephone intercepts. The Judge accepted that those other acts did not aggravate the two admitted offences but demonstrated that those offences were not isolated, were not committed out of naivety, and had occurred against a background of an inappropriate and unethical relationship with Tassone. In our opinion the Judge appropriately used the evidence of the uncharged acts to place the charged acts in context and no error has been demonstrated in that approach.
No pecuniary benefit
The defendant complained that the Judge failed to give sufficient weight to the fact that the she had not obtained any pecuniary benefit from her actions. However, the Judge clearly had regard to this matter and adequately took it into account. The Judge accepted, and sentenced the defendant on the basis, that she did not commit the offences for any pecuniary or other financial reward. The Judge referred to the submission that the only reason for the offending was that Tassone had intervened to stop the defendant’s former husband’s acts of domestic violence. The Judge accepted that there was no evidence to suggest anything other than a relationship of friendship and possible gratitude on behalf of the defendant, which led to the offending. The Judge accepted that no actual harm was caused to any person as a result of information improperly accessed and released by the defendant. However, the Judge described this as more a matter of good luck than anything else. The Judge considered the defendant to be “completely reckless” with respect to the possible consequences of the offending.
Assistance to authorities
The defendant complained that the Judge gave insufficient weight to her cooperation with the authorities in the prosecution of her former husband for serious offences and her willingness to give evidence against him. In making this submission, counsel relied on the decision of Many.[4]
[4] R v Many (1990) 51 A Crim R 54.
It is well established that offenders may be given credit for providing assistance to the authorities by identifying a co-offender, offering to give evidence against another, or giving information which leads to the detection of other crimes. A discount on penalty is given by courts with respect to such assistance as a means of providing an incentive for offenders to cooperate with authorities. In Many, a prisoner, who was a sexual offender, provided information to the authorities about a plan by another prisoner to commit the crime of murder. The provision of information was at considerable personal risk to himself. As a result he was required to remain in protective custody. Many is a useful example of a circumstance in which a discount for assistance to authorities is appropriate. However it is difficult to see its relevance to the present situation.
In the present proceeding the only information provided to the authorities by the defendant about other offences consisted of the allegations she was making against her former husband with respect to acts of domestic violence of which she was the victim. The fact of that domestic violence was a relevant personal circumstance for the Judge to take into account and, as earlier indicated, the Judge had regard to that matter in imposing sentence.
Failure to determine sentence before considering the question of suspension
The defendant further complained that the Judge considered the question of suspension before she determined the sentence appropriate for the defendant’s crimes. Section 38 of the Criminal Law (Sentencing) Act 1988 (SA) requires the Court to undertake a two-stage process by first determining the sentence and then deciding whether there is good reason to suspend. Counsel submitted that as a result of the approach taken by the Judge there was a confusion between factors relevant to the head sentence and matters which were relevant to the question of suspension. The Judge commenced her consideration of the question of suspension by saying:
I am urged to suspend the period of imprisonment that I must impose …
[Emphasis added]
and then continued:
…and one of the important reasons submitted to me is the effect of imprisonment upon your children in light of the circumstances in which your family finds itself at this time. I have had regard to all of the material in that regard and I understand completely the anguish and difficulty caused to your children and members of your family. I have paid particular regard to the report provided from Mr C.D. Wilson dated 11 December 2009 and the various materials provided by members of your family.
Unfortunately, serious offending does have serious effects on the family of the offender; that is commonplace. The difficulties encountered with respect to your children and their welfare are unfortunately very common in this court as, unfortunately, the person who is often to receive a custodial sentence is the sole parent. Regrettably, at this stage, in 2009 those sorts of submissions are not uncommon.
I accept the submissions made by the prosecution that if and when the Family Court becomes involved in any issue of custody and your children, then that court will fashion a solution which has primary regard to the best interests of your children. I cannot proceed on any other basis. I also note that [your former husband] is unlikely to face trial before December 2010 at the earliest. As I have mentioned, I have made my own checks with the Criminal Registry in that regard. Thus the situation suggested by [your counsel] whereby both you and [your former husband] would be in custody is unlikely, given the sentence that I will shortly impose. Having said that, I am not suggesting for a moment that it is appropriate that [your former husband] have custody or access to the children. That’s a decision for others.
I note the belated letter from [the father of your eldest child] of 15 December 2009 in respect of [your eldest son]. I note the contradictory comments contained therein where he says to me that he would, without hesitation, return home and apply for sole parental custody for [his son] if your conduct had impacted adversely on his son. Nonetheless, he then goes on to tell me that because of his ‘contractual obligations’ he is prevented from assisting with respect to the care of his son.
I have given this document little weight. The tone of the correspondence and the attempt to provide some sort of character reference for you are inappropriate, however I do accept his statements, as I have heard from every other source that you are a good and dedicated mother.
I have also had regard to the submissions with respect to the difficulties that you may have if a custodial sentence is imposed but there is a limit to the allowance that I can make for that as I must assume the authorities will have proper regard to your welfare while in custody.
In these remarks I have not canvassed all the factual details nor summarised all the submissions put to me but I make it plain that I have regard to all of those matters in fixing sentence. I have very carefully considered the question of whether or not there is good reason to suspend the period of imprisonment that I must impose.
In the end, I do not think that there is such good reason in light of the seriousness of your conduct, albeit putting it in its proper place within a range of similar sorts of offences, that is it is an offence where there was no pecuniary benefit and the limited effect of the offending, but there is also the need to deter others, particularly member of the South Australian Police Force, who must know that if they engage in such conduct they will face serious punishment. It is impossible for us to have guards to guard the guards, so to speak. Our community must trust and have confidence in our police officers and police must be able have access to this confidential information but use it properly.
In the end, those considerations outweigh the matters pertinent to you and your children which have been put to me. That is with respect to the issue of suspension. However, I say that I have taken into account, in an exceptional way, the effect, particularly upon your children, in fixing the sentence, particularly the non-parole period which will be lower than that which would otherwise have been fixed.
Although the Judge failed to indicate the term of imprisonment she considered appropriate before she turned to the question of suspension, we do not consider that in the circumstances of this case this has led to any miscarriage.
The crimes committed by the defendant were very serious. The defendant used her position as a police officer to access police computer records and to provide information to Tassone, who was known to be involved in drug trafficking, in circumstances where the suspect of the offence was an office holder of a motorcycle gang. She gave information to Tassone about the names and occupations of registered owners of vehicles which were of interest to him.
A breach of trust by persons holding public office should ordinarily attract a substantial penalty. General deterrence is of particular importance when sentencing for such crimes. It was inevitable that a custodial sentence would be imposed. The Judge had clearly resolved that matter in her mind, although she had not announced the terms of it before she directed her attention to the question of suspension.
Effect on children
Counsel submitted that the Judge failed to give adequate weight to the effect of a term of imprisonment upon the defendant’s children.
In the course of submissions the Judge was provided with a report dated 11 December 2009 of a psychologist who had interviewed the defendant’s children. That report indicated that the children were likely to suffer distress at separation from their mother.
Character references were tendered from members of her family and others who knew the defendant. The father of the defendant’s eldest child also wrote a letter to the Judge in which he commended the defendant’s efforts with respect to their son’s care. He also said that he had taken a position working in private security in Iraq in 2004 and returned home infrequently. Since January 2009 he had been working in private security based in Papua New Guinea and he indicated that he was unable to assist with their son’s care in the event of a custodial sentence being imposed.
In her sentencing remarks, the Judge said that she had understood the anguish and difficulty caused to the children and members of the defendant’s family. She had regard to the psychologist’s report, but commented that penalties for serious offending have serious effects on the family of offenders, which she described as commonplace. She accepted the submission made by the prosecution that if and when the Family Court became involved in any issue of custody, the Court would fashion a solution which had primary regard to the best interests of the children. When indicating that she was not persuaded that there was good reason to suspend the period of imprisonment, the Judge said that she considered general deterrence had to be given priority. She did say, however, that she had taken into account in an exceptional way the effect on the children in fixing the sentence, and in particular in fixing the non-parole period, which was lower than would otherwise have been fixed.
It is well established that a Court may have regard to the probable effect of a sentence on the dependants of a defendant.[5] However, it is also well accepted that hardship to a third party is an inevitable consequence that follows the imposition of most sentences of imprisonment.[6] As a consequence, the consideration of the effect of a custodial sentence on dependants will only have a significant impact on penalty if the effect it has in the case under consideration is out of the ordinary or “exceptional”.[7]
[5]    Criminal Law (Sentencing) Act 1988 (SA) section 10(1)(n). That section has been interpreted as not altering the common law principles: R v Adami (1989) 51 SASR 229; R v Mangelsdorf (1995) 66 SASR 60 at 70.
[6]    See the remarks of Doyle CJ in R v Carpentieri (2001) 81 SASR 164 at 168 citing with approval R v Wirth (1976) 14 SASR 291 at 295-296.
[7]    R v Wirth (1976) 14 SASR 291 at 295-296; Bates v Police (1997) 70 SASR 66 at 69.
The common law position in relation to the relevance of hardship to dependants was discussed in Wirth where Wells J observed:[8]
The argument thus presented to us raises the following question: When (if ever), and to what extent (if at all), should the hardship caused, directly or indirectly, by a proposed sentence of imprisonment, to the family of, or to others closely associated with, the offender be taken into account by the Court in mitigation of that sentence?
…
…Hardship to spouse, family, and friends, is the tragic, but inevitable, consequence of almost every conviction and penalty recorded in a Criminal Court. Again and again, sentencing judges point out that convicted persons should have thought about the likely consequences of what they were doing before they did it—I am, of course, addressing myself to the more serious crimes in which some form of premeditation, wilfulness, or intent, must be proved. It seems to me that courts would often do less than their clear duty—especially, where the element of retribution, deterrence, or protection of society is the predominant consideration—if they allowed themselves to be much influenced by the hardship that prison sentences, which from all other points of view were justified, would be likely to cause to those near and dear to prisoners.
But it has been often remarked that the strength of our law lies in the willingness of judges, when applying a principle, not to carry it past the point where a sense of mercy or of affronted common sense imperatively demands that they should draw back. So it is proper that I should here add that, in my opinion, hardship likely to be caused by a sentence of imprisonment under consideration ought to be taken into account where the circumstances are highly exceptional, where it would be, in effect, inhuman to refuse to do so. … For example, if it were demonstrated to the satisfaction of the court that to send a man to prison would, without much doubt, drive his wife to suicide, it would be a steelyhearted judge who did not, however illogically, at least try to meet the situation by suitably framed orders as to penalty. But further than that, in my judgment, courts should not go.
[8] R v Wirth (1976) 14 SASR 291 at 295-296; Although Wells J enunciated the common law position, as noted above, it has been established that the common law principles have not been altered by section 10(1)(n) of the Criminal Law (Sentencing) Act 1988 (SA).
These remarks were cited with approval by Doyle CJ in Carpentieri where the Chief Justice remarked:[9]
The judgment in Wirth has frequently been cited by appeal courts with approval. In R v Edwards (1996) 90 A Crim R 510 Gleeson CJ, with whom James and Ireland JJ agreed, cited the above passage from Wirth and pointed out that the real difficulty in many cases is to identify a ground upon which the hardship to a third party "can properly and relevantly be regarded as exceptional". His Honour observed that causing hardship to third parties by the imprisonment of an offender is very common and emphasised the importance of examining the nature and extent of the hardship that would follow the imposition of a sentence of imprisonment.
[9] R v Carpentieri (2001) 81 SASR 164 at 167-168.
The Chief Justice further adopted the following remarks of Perry J in Bates:[10]
Although regard will be had in all cases to the effect of the imposition of a custodial sentence on dependants of the defendant, it will only have a significant effect on penalty if the effect which it has in that respect in the particular case is out of the ordinary.
[10] Bates v Police (1997) 70 SASR 66 at 69 as cited in R v Carpentieri (2001) 81 SASR 164 at 168.
What constitutes an impact on a dependant that is “out of the ordinary” or “exceptional” is illustrated by the decision in Bates. In that case, the appellant was the sole de facto parent of his sister’s children. The children’s mother died in custody and the children were fearful that the same would happen to the appellant if he were imprisoned. Perry J concluded that the Magistrate erred in failing to give sufficient recognition to the effect that a term of imprisonment would have on the emotional wellbeing of the children.
In Neill,[11] the effect of the imprisonment on the dependants, was held by Doyle CJ to be significant enough for the non-parole period to be substantially reduced. In that case, the defendant was sentenced by a Magistrate to a term of imprisonment of four years with a non-parole period of two years and six months for numerous counts of breaking and entering. The defendant had lived in a de facto relationship for some eight years and had two young daughters from that relationship. Following the imposition of this sentence, the defendant’s de facto partner was killed in a motor vehicle accident. There was no relative in South Australia able to care for the children. In the course of concluding that the non-parole period should be reduced to one year and 10 months, Doyle CJ observed:[12]
… A sentence of imprisonment will usually affect the family of the offender. In the ordinary case that is not a matter that will provide a basis to reduce a sentence. But there are cases when the effect is so great that the court can rely on it to reduce the sentence that is otherwise appropriate. The court does so out of consideration of the welfare of the family, and society’s interest in their welfare, and not merely as an act of mercy to the offender. Even then the court must still give weight to the other relevant factors. The process of sentencing does not become one in which the impact on the offender’s family controls the outcome, or even is a dominating factor. The true position is that the interests of the offender’s family may be given effect to by reducing an otherwise appropriate sentence.
[11] Neill v Police [1999] SASC 270.
[12] Neill v Police [1999] SASC 270 at [24].

It is important to note that in the process of evaluating the hardship occasioned to a defendant’s dependants as a consequence of the sentence imposed, the seriousness of the offending must also be evaluated. In this respect the following remarks of the New South Wales Court of Criminal Appeal in Hinton are apposite:[13]
…a finding that the effect on a third party of the imprisonment of an offender is so exceptional that it can be taken into account to reduce the otherwise appropriate sentence must depend upon an evaluation of the objective seriousness of the offence for which sentence is being passed. The more serious the offence, the less likely it is that the effect of imprisonment on a third person will be sufficiently exceptional so that regard might be taken of it.
[13] R v Hinton (2002) 134 A Crim R 286 at 292 (Howie J, with whom Wood CJ at CL & Sully J agreed).
As earlier observed, in the present proceeding counsel for the defendant contended that the sentencing Judge failed to give adequate consideration to the effect of the term of imprisonment on the defendant’s children. The distress likely to be suffered by the children was outlined in the psychologist’s report of 11 December 2009 and in statements of family members. This material was available to the sentencing Judge. It is to be emphasised that the sentencing remarks disclose that the Judge took into account the effect of the sentence on the defendant’s children when fixing a lower non-parole period than would otherwise have been fixed.
On the hearing of the appeal, without objection, the Court was informed that the children of the defendant were being cared for by the defendant’s brother with appropriate family support.
In the present proceeding, the material discloses no hardship to the children of the defendant that is of such a serious character as to call for a more merciful approach to sentencing than that undertaken by the sentencing Judge.[14] As the authorities make clear, it is inevitable that children will suffer hardship on a mother’s incarceration. However, particularly in light of the seriousness of the offending conduct in this case, that hardship and distress is not sufficiently exceptional to impact on the penalty imposed.[15]
[14] See the observations of the Court in R v Penno (2004) 236 LSJS 457 at [46] (Gray J, with whom Perry & Nyland JJ agreed).
[15] R v Hinton (2002) 134 A Crim R 286 at [26] (Howie J, with whom Wood CJ at CL & Sully J agreed).
The gravity of the offending
The offences committed by the defendant were extremely serious. As earlier outlined, one offence involved the defendant providing to Tassone the name and address of a witness to an assault, when it was suspected that the witnesses were reluctant to cooperate due to motorcycle gang involvement. The other offence was equally serious, involving the defendant providing details of the identities and occupation of owners of two motor vehicles to Tassone, who ultimately passed that information on to a third party. Although the information provided by the defendant was not ultimately utilised to cause any harm to the individuals thereby identified, there was a real potential for an adverse consequence following from the disclosure of the information. Such disclosure of information is of significance when made in the course of public service, and in particular, in the course of the duties of a police officer. It is crucial that members of the community believe that police will keep entirely confidential material or information provided for particular purposes. The misuse of the information provided by the defendant had the capacity to fuel criminal activity, including interference with the administration of justice.
The seriousness of corruption in the course of police work and the misuse of public office cannot be overemphasised. It is vital that public confidence in the integrity of the police force and its members be maintained. Behaviour such as that of the defendant has the capacity to erode that confidence. Once public confidence in the police force has been undermined, the utility and effectiveness of the force is likely to be impaired. The reputation of the police force and confidence in that force is far easier to lose than to rebuild. Loss of confidence in the police department and its officers has the capacity to infect the reputation of the justice system as a whole and the public’s confidence in that system. It is vital for the law, order and governance of society, that there be confidence in the institutions administering that law, order and governance. It is imperative that those in public office and in particular, those in positions of public trust such as police and other legal officers, are aware of the standards required of their positions and the importance of their obligation to maintain public confidence in the proper fulfilment of those positions.
It is also of importance that any police officer who might be inclined to access confidential police information for an inappropriate, improper or illegal purpose, understand the seriousness of that conduct and understand further the seriousness of the sanction that is likely to be imposed.
In accordance with the above observations, it was necessary that the sanction imposed in this case reflect the seriousness of the defendant’s conduct, the need to deter others from offending in a similar matter and the need to reassure the public that such conduct will not remain unpunished. The penalty imposed must be sufficient to restore confidence in the community that police officers who misuse their position will face the full rigours of the law and will be an example to others who might consider similar activity.
The gravity of offending in the abuse of a position of public trust was considered in Nath.[16] In that case the defendant pleaded guilty to five counts of bribery at common law and six counts of having improperly accepted various amounts of money in his capacity as a public officer. The defendant was jointly charged with a number of others who were not public officers. All of the defendants received suspended sentences of imprisonment, but Nath received the longest sentence. On appeal by the Crown, the decision to suspend Nath’s sentence was overturned.
[16] R v Nath (1994) 74 A Crim R 115.
In the course of his decision, Perry J, with whom King CJ and Prior J agreed, noted the gravamen of the offence and the sentencing Judge’s recognition of that gravamen:[17]
[17] R v Nath (1994) 74 A Crim R 115 at 118-119.
The gravamen of the respondent's offending was that he abused a position of public trust for his own gain by a calculated system of fraud and deception conducted over a substantial period of time. The learned sentencing judge recognised the seriousness of the offence. He said (ts, p 246):
"There is no doubt in my mind that your offending is of a most serious kind. Part of my duty in imposing a sentence upon you is to let it be seen that the community cannot tolerate breaches of trust and dishonesty by public servants. In all but the most exceptional cases I think that an immediate custodial sentence would be demanded.
…
In my opinion, there were no circumstances which could possibly have supported the view that there was good reason to suspend the sentences. The respondent's position as a public officer clearly served to distinguish his offending from that of the contractors with whom he dealt. The fact that their sentences were suspended did not constitute good reason for the respondent to be treated in a similar fashion. In any event, the six contractors were fortunate to have been dealt with so leniently.
Whether out of a desire to maintain parity with the other sentences imposed on the contractors, or by reference to the personal circumstances of the respondent or by reference to a combination of both, the learned sentencing judge was led into error in making the order for suspension.
A breach by persons holding public office of the duty to act honestly in the performance of their public duties is a most serious matter which should ordinarily attract a substantial penalty.
…
When, as in this case, there was a calculated, systematic course of dishonesty constituting a breach of trust by a public official extending over a substantial period of time, and involving a substantial sum of money, the suspension of the sentence must be characterised as an error in the exercise of the sentencing discretion. Whatever the personal circumstances of the respondent, they could not operate to justify suspension of the sentence, given the circumstances of the offending.
That error is so serious that it warrants the grant of leave to the Crown to appeal. Intervention by this Court is necessary having regard to the need for the sentence to operate as a general deterrent, and to maintain a proper level of sentencing for offences of this kind.
[Emphasis added]
The above comments of Perry J are apposite.
It is to be observed that the defendant’s conduct the subject of the present proceeding, can be characterised as more serious than that under consideration in Nath. As earlier noted, the information provided to Tassone by the defendant had the capacity to endanger the individuals thereby identified.
In these circumstances no justification for suspension has been disclosed and the sentence imposed by the sentencing Judge was appropriate.
Conclusion
We would dismiss the appeal.
KOURAKIS J The appellant pled guilty to two counts of abuse of public office.[18] She was sentenced to two years and nine months imprisonment with a non-parole period of 12 months. She now appeals against that sentence.
[18] Criminal Law Consolidation Act 1935 s 251.
The appellant, when a serving police officer, gave confidential police information to a criminal involved in the drug trade. That conduct was a serious abuse of the important office she held as a member of South Australia Police. The appellant’s conduct jeopardised the persons whose identities she disclosed, even though, fortunately, it turned out that they were not harmed. Perhaps of greater concern is the insidious effect of offending of this nature. It is likely to undermine the public’s confidence in the security of information provided to the police about serious criminal offences and for that reason restrict the flow of information which is necessary for the prevention and detection of crime.
In light of the objective seriousness of the appellant’s offending, the term of imprisonment imposed on her is plainly enough not excessive and no such complaint is made. Nor is it arguable that the decision not to so suspend was, in itself, unreasonable. However, the appellant contends that the decision not to suspend the sentence is affected by express errors. In my view, the alleged errors in the exercise of the sentencing discretion have not been made out. I now summarise my reasons, which are further explicated below, for so holding.
The failure of the Judge to read the witness statements made by the appellant and her children against her estranged husband in support of her complaints of assault and rape was not an error which vitiated the sentencing discretion. The Judge accepted that the appellant was a victim of a long and violent domestic relationship. The nature of the relationship and the offences committed against the appellant were summarised in a psychiatric report which the Judge received and in the sentencing submissions. The expatiation of that offending contained in the statements could not affect the relative weight of the competing sentencing considerations in the circumstances of this particular case. The details in the statements were therefore not a relevant factor which the Judge was bound to consider and therefore the failure to read the statements did not constitute an error in the exercise of the sentencing discretion.
The appellant also contends that the Judge failed to appreciate that the appellant’s offending resulted from a psychological dependency on the man, Tassone, to whom she provided the information. The connection between the offending and the appellant’s psychological condition was not put to the Judge in that way and is in any event not supported by the psychiatric report on which the appellant relies.
I reject the appellant’s next submission that the Judge erred by giving her reasons for not suspending the sentence of imprisonment, which had to be imposed, before announcing the length of the term. The Judge declared that she had decided to impose a sentence of imprisonment before she turned to the question of suspension; a fine or a simple bond could not reasonably have been imposed in this case and the appellant’s counsel did not seek any such penalty when making sentencing submissions. It is not, of itself, an error to give reasons for not suspending a sentence of imprisonment before announcing the length of the term to be imposed.
In my view the Judge did not ignore the effects that imprisonment of the appellant might have on her children. The non-parole period is a significantly smaller proportion of the head sentence than is ordinarily imposed and is plainly calculated to promote the welfare of the children. The material before the Judge failed to establish that the risk to the welfare of the appellant’s children called for a substantial diminution of the punishment that was otherwise justified by the circumstances, by suspending the term of imprisonment.
Finally, I reject the submission that the Judge erred in her assessment that the appellant had shown little contrition. In her statements to the police who had interviewed her, in her conversations with the reporting psychiatrist Dr Raeside, in a letter she sent in support of her claim for continuing payment of her salary whilst her employment was suspended and by her late plea of guilty the appellant failed to accept personal responsibility for her conduct. The Judge was entitled to give more weight to those matters than to the expressions of remorse referred to in the personal character references received at the sentencing hearing and the submissions made by the appellant’s counsel.
The offending
The appellant separated from her husband in 2005 although, as will be seen, that did not bring an end to the violence she suffered at his hands. The appellant had met the man Tassone through her husband and knew from conversations with her husband that Tassone trafficked in drugs. At some point, and the timing is not clear, the appellant claims that Tassone came to her assistance. Tassone warned her husband against subjecting the appellant to any further violence. According to the appellant, in that way Tassone won for her some respite from her husband’s attacks.
In January 2006 the appellant printed documents containing an individual’s offender history and address. The documents were found on a subsequent search of Tassone’s premises. In May 2006 the appellant again printed out documents including photographs of nine offenders and a physical description and offender history of another. Those documents were later found in a police search of a house occupied by a person reputed to be a member of the Finks bikie gang. The conduct just described had been charged as counts one and three respectively of the indictment presented against the appellant in the District Court, but a nolle prosequi was entered on those counts after the appellant pled guilty to counts two and four. Nonetheless, with the consent of the appellant, the Court was informed of the conduct “to place the charged action in context” by demonstrating that the charged acts were not isolated events and were not committed out of naivety. As to that conduct the appellant conceded only that it was “inappropriate” for her to share the information with Tassone. The appellant told the police who interviewed her in October 2006 that she had obtained the information because it was relevant to criminal intelligence she was receiving from Tassone about serious offending by the persons whose details she had accessed. The appellant agreed that she had discussed the information with Tassone but was not able to explain how or why the documents themselves ended up in the hands of Tassone or anyone else. The prosecution position on sentencing was that the appellant deliberately handed the documents to Tassone. The appellant did not admit that allegation and the dispute was never resolved.
For obvious reasons the recruitment and management of informers and undercover operations are strictly regulated by South Australia Police. None of the applicable procedures were followed by the appellant in relation to the intelligence she supposedly obtained from Tassone. The appellant’s claim that she passed on information to other police officers was generally contradicted by the sworn statements of those officers. Their evidence showed that there were just two occasions on which the appellant communicated information in the nature of criminal intelligence to them. The appellant did give information to one officer about the identity of Aboriginal youths involved in an assault. However, the circumstances described by that officer were inconsistent with the appellant’s claim that the information came from Tassone or was related to the police intelligence she had disclosed to him. Another officer referred to an occasion when the appellant had made certain allegations against a woman whom her estranged husband was seeing. Again that did not appear to relate to the allegedly improper disclosures made to Tassone. Even though there was some material in a telephone intercept transcript which gave some support to the appellant’s explanation, the Judge was entitled, on all of the evidence, to reject it. The appellant’s sentence could not be increased above what would otherwise be appropriate for the offences to which she pleaded by reason of this conduct and the Judged did not do so. However, the conduct could be used for the contextual purpose relied on by the prosecution. Moreover the rejection of the appellant’s claim to have been engaged in intelligence work on those occasions also undermines the explanation given by the appellant for committing the offences of which she was convicted and to which I now turn.
The second count on the information which charged the offence of abuse of public office related to the conduct which I now summarise. In March 2006 Tassone was assaulted outside a nightclub in Hindley Street. The assault was committed by a member of the Rebels bikie gang. Tassone did not report the matter to police and did not want the police to prosecute the assault. He feared, not unreasonably, that the offender or his fellow club members might strongly retaliate if he were to do so. However, a member of the public reported the matter to the police and was a potential witness in the hearing of the charges brought against Tassone’s attacker. At Tassone’s request, the appellant informed him of the name and address of that witness. It is likely that Tassone was considering dissuading the witness from giving evidence in the hope that the prosecution would be discontinued. The appellant must have realised that Tassone may have had that object in mind. I can only speculate about the nature of the persuasive measures Tassone was considering. Fortunately, the information was not acted upon at all. However, even assuming that only gentle persuasion was intended, or likely, the seriousness of the appellant’s offending lies in the fact that the disclosure was calculated to frustrate a criminal prosecution; the appellant facilitated the obstruction of the administration of the criminal law which she had sworn to uphold.
The subject matter of the fourth count on the information which also charged an abuse of pubic office was as follows. In about September 2006 Tassone telephoned the appellant and informed her that he believed that he was under surveillance. He provided the registration number of the cars which he suspected were involved. On the same day the appellant ascertained the identity of the owners of vehicles and gave Tassone their names and occupations. The appellant obtained that information directly from an electronic data base but she later also asked a colleague to check the occupation of one of the owners of the motor vehicles because she had forgotten it. Her colleague did so, innocently and completely unaware of the appellant’s criminal purpose. Tassone suspected and informed the appellant that the surveillance had been undertaken either by rival drug distributors or Workcover investigators. If the former was the case, the appellant was providing information which would assist Tassone to more safely participate in the criminal drug trade. If the latter, the appellant was providing information which would frustrate the lawful investigation of the honesty of Tassone’s workers compensation claim. In either event, the confidential information which was available to the appellant only in her capacity as a police officer was provided to Tassone for purposes fundamentally inconsistent with the purpose for which it was held and against the interests of the community on whose behalf it was held.
The explanation?

In the sentencing submissions made on behalf of the appellant it was put that the offending was related to Tassone’s intervention on her behalf which put an end to the violence perpetrated by her estranged husband. However the circumstances and timing of Tassone’s assistance and its relationship to the offending is far from clear. I set out an extract from the transcript of the appellant’s police interview in October 2006 in which she first explained Mr Tassone’s assistance:
AWell like I said, he, he has – it, it – I would have told the truth about all the information he’s given me but socially he did me a favour.
Q137 Socially?
A     Yes.
Q138 In, in – do you want to tell me about that or?
AUm, um my husband was beating me up and I didn’t know, I didn’t want to go through police. I got a restraint order.
Q139 Yeah
AAnd he said if you want me to handle it and you want the abuse to stop, and yeah, he did me the favour and made sure that I never got hit again. And I –
Q140 All right. How?
A     I think he made a phone call and made contact and said stop beating her up.
Q141 Okay. Was that all?
A     Yeah that’s the only social - that’s what he did to me as a favour.
Q142But like was there more to the story than that or what? You know, is there something about that phone call that, did he threaten your ex-husband or?
A     I would assume he would have, I don’t know.
Q143 Okay.
A     But I’ve never been hit since, so.
Q144 Okay and how, how did he threaten him, do you know?
A     I don’t know.
Q145 And has he used that then to say: You now have to provide me with information?
A     No
Q146 Why would you provide him information?
A     Because he gives me information. He tells me stuff about crooks and - (underlining added)
Later in the interview the appellant described Tassone’s intervention as “a domestic violence issue, that’s just separate”.
It follows from the date of the interview and the date of the offending for which she was convicted, March and September 2006, that for there to be a relationship between the appellant’s offending and Tassone’s assistance, Tassone must have made the telephone call sometime in early 2006.
The appellant did not make a complaint against her husband until after she had mentioned his violent conduct to her interviewers by way of explanation for her offending. However, the witness statements the appellant later provided in support of those allegations do not refer to Tassone’s intervention or to any abeyance in her husband’s violence other than for a short period in about June 2005 which the appellant attributed to a restraining order she took out against him in that month. The appellant’s statements record that very early in 2006 the appellant’s estranged husband returned to live in the family home whilst it was on the market. In that period she was subjected to verbal abuse and unwanted sexual advances but she described no particularly violent assault and made no reference to Mr Tassone’s intervention. The appellant did describe violent assaults committed by her estranged husband in April and May 2006. In one of her statements the appellant deposed that by the end of 2006 “it got to a point that the abuse was so constant and increasing[ly getting] worse that I honestly thought [my husband] would kill me or get someone to kill me at some stage”.
In the course of sentencing submissions the appellant’s counsel described Mr Tassone’s intervention as the “only possible benefit” that the appellant received from the commission of the offences. That submission, if taken literally, suggests that her offending occurred before the assistance was given and that Tassone’s intervention may have been his way of returning a favour. However, the Judge proceeded on the basis that the appellant had given Tassone the information out of gratitude for his earlier assistance. The Judge said:
It is also accepted, and I sentence you on this basis, that you did not commit the offences for any pecuniary or other financial reward. I am told that the only reason for you offending can be for Tassone intervening with your former husband in respect to his alleged domestic violence towards you. Ms Buckskin, when I use the term ‘domestic violence’ at any stage I do not mean to minimise what you allege against your former husband. I use that in a general sense only. (emphasis added)
On appeal yet a further variation on this theme was advanced. It was contended that there was a deeper explanation for the appellant’s offending; it was not merely that she had made a misguided decision to reward Tassone for his assistance. The appellant contended that the Judge had failed to appreciate the significance of the psychiatric report of Dr Raeside. The appellant’s counsel submitted that Dr Raeside’s report showed that the appellant’s capacity to think rationally was materially compromised by a post traumatic stress disorder from which she suffered as a result of the ongoing violence inflicted by her husband. The appellant’s counsel also submitted that the appellant was psychologically vulnerable to and dependent on Tassone because he, in effect, rescued her from that violence.
Counsel for the Director of Public Prosecutions submitted that the appellant’s plea in mitigation was not put in that way to the Judge. No issue was taken with the Director’s submission in the appellant’s reply. That in itself is reason enough to dismiss the appeal on this ground.
However, because the substance of the ground can be dealt with briefly on the material before the Court, it is best to do so. First, it will be observed from the statements and submissions to which I have just referred that the precise timing of Tassone’s warning off the appellant’s husband in relation to the offences remains shrouded in mystery. On one version, the offences occurred after Tassone had given his assistance and to reward him for it. On another, his intervention was a benefit obtained as a result of the earlier provision of the information. Such an uncertain basis is an unconvincing foundation on which to establish an important fact in mitigation.
Secondly, Dr Raeside’s diagnosis was of “delayed onset post traumatic stress disorder” (emphasis added). The condition was described as “delayed onset” because, on the history which the appellant gave to Dr Raeside, she did not suffer any depressive symptoms before her arrest. Notwithstanding the fairly obvious alternative explanation for those symptoms, namely the fact of her arrest, Dr Raeside diagnosed a post traumatic stress disorder with a delayed onset resulting from the years of abuse the appellant had suffered. Nonetheless what is of present importance is that if the post traumatic stress disorder was symptomless before the appellant’s arrest, it can hardly be accepted that her capacity to think rationally was materially affected by it when she committed the offences.
I set out below those parts of Dr Raeside’s reports on the relationship between the appellant’s post traumatic stress disorder, or the prodrome to that condition, and the offending:
Based on the information available to me and from my interview with Ms Buckskin I believe that she developed delayed onset Chronic Post Traumatic Stress Disorder (PTSD) arising out of her reported ongoing trauma and violence in her marital relationship. There appears to have been significant issues of psychological denial previously, in relation to the ongoing abuse, perhaps due to a sense of learned helplessness. It is apparent that these issues were known in the workplace, but she did not seek to pursue them until recently. She appears to have been I genuine fear for her life from her ex-husband which was clearly implicated in some of the issues surrounding her current charges. She remains in fear, although there has not been any particular violence or threats over the last 12 months.
…
Offending Behaviour
At the time of the offending I believe Ms Buckskin would have been suffering from Chronic Post Traumatic Stress Disorder as outlined, arising out of the domestic situation. However, whilst this might have explained some of her actions in relation to Mr Tassone (based on threats from he husband), I do not think that these actions are specifically related to her psychiatric state as such.
Further, I could find no evidence that any psychiatric disorder would have prevented her from knowing the nature and quality of her actions, the wrongfulness of them, or render her unable to control her conduct. Any impairment in her judgment is not likely to be due to underlying psychiatric illness. However it would be consistent with some element of psychological denial, which might have led her to fail to fully appreciate the seriousness of some of her actions. This is a separate than a mental illness impairing her, but may serve to explain why she might have engaged in behaviour that a respected police officer might otherwise have been expected not to do. (emphasis added)
No finding of any significant mental impairment compromising the appellant’s capacity to act rationally can be made based on those passages. Nor do they support any finding of psychological vulnerability to Tassone’s entreaties. It is trite to observe that the appellant carried the persuasive onus of showing such an impairment if she wished to rely on it as a mitigating factor.[19]
[19] R v Olbrich (1999) 199 CLR 270.
It is on this issue that the trial Judge’s rejection of the appellant’s explanation for the other inappropriate disclosures becomes important. The appellant never claimed that her decision to make the other inappropriate disclosures was attributable to a psychological condition. The rejection of the appellant’s disingenuous claim to have been collecting criminal intelligence from Tassone when she showed him copies of offender histories and photographs in January and May 2006 establishes that in 2006 she did not feel at all legally or morally constrained from dealing unlawfully with police intelligence.
That inference is strengthened by other material. Telephone conversations between the appellant and Tassone were secretly recorded as part of a police investigation. The tapes and transcripts were before the Judge. It appears from one of her conversations with Mr Tassone that the appellant had no moral scruple about encouraging Tassone to give a false name and address to police so that he might escape prosecution. Indeed the appellant indicated a willingness to actively take steps herself, if she had been in a position to do so, to assist Tassone to evade a prosecution.
It is trite to say that the appellant is not to be punished for the other conduct. The Judge did not do so. That conduct is, however, of present importance because the appellant’s state of mind with respect to that other conduct is strong evidence of her state of mind at the time of, and the reasons for, committing the offences to which she pleaded guilty. It provides a more likely explanation for that offending than the claimed psychological compulsion to reward Mr Tassone for coming to her defence against the violence of her husband. It also demonstrates that the appellant’s offending is not an isolated lapse but arises out of a mindset which was not much constrained by moral or legal precepts. The scope for extending leniency to her was therefore reduced and the prognosis for future rehabilitation necessarily guarded.
For the above reasons, I reject the submission that the appellant should have been sentenced on the basis that her offending was explicable by a psychological vulnerability to Tassone.
Reasons for not suspending the sentence
Section 38 of the Criminal Law (Sentencing) Act 1988 (the CLSA) provides that where a court has imposed a sentence of imprisonment it may, for good reason, suspend that sentence. The purpose of s 38 of the CLSA is to confer on courts a power which is not known to the common law. The power to suspend necessarily presupposes that a sentence of imprisonment has been imposed; the power is only enlivened on the imposition of a sentence of imprisonment. It is for that reason that the section premises the power to suspend on the prior imposition of a sentence of imprisonment. However, the section does not address, let alone seek to dictate, the form which the sentencing remarks or reasons of the Judge should take.
The discretion of a sentencing court to fix an appropriate penalty is regulated by ss 10 and 11 of the CLSA. A court must consider the matters adumbrated in s 10. The discretion is further confined by s 11 of the CLSA so that a sentence of imprisonment may only be imposed on an offender who has not previously been imprisoned or exhibited a tendency to serious or violent offending if “any other sentence would be inappropriate”.[20] However, like s 38 of the CLSA, neither ss 10 nor 11 of the CLSA purport to constrain the way in which reasons are expressed.
[20] Criminal Law (Sentencing) Act 1988 s 11(1)(a)(iv). Section 11(1)(b) also provides that imprisonment may be imposed if it is necessary to give proper effect to the policies stated in s 10. It is not clear how that subsection adds anything to s 11(1)(a)(iv). If it is necessary to impose imprisonment to give effect to those policies, then it can be said that any other sentence would be inappropriate.
Section 9 of the CLSA requires a court to state its reasons for imposing sentence. The section does not go on to provide a template to which reasons must conform. The requirement to state reasons and the content of those reasons should be understood consistently with the practice of criminal courts to provide sentencing remarks. The dual purposes served by sentencing reasons and remarks, which are to inform the offender in terms he or she can understand of the reasons for the sentence imposed and to allow for appellate review, must inform the proper application of that section.[21]
[21] See R v Reiner (1974) 8 SASR 102 per Wells J.
The considerations which are relevant to the question of whether or not to impose a sentence of imprisonment, the length of that sentence and whether or not to suspend that sentence overlap. It would impose an intolerable burden on Magistrates and District Court Judges, not to mention their support staff and court reporters, to require them to separately set out in their sentencing remarks their reasons for not imposing a lesser penalty than imprisonment, followed by their reasons for suspending or not suspending that sentence. Such a procedure may also cause unnecessary and undesirable anxiety for the offender and his or her family. I acknowledge that in some cases it may be appropriate to first announce the term of imprisonment before turning to whether the imprisonment will be served or suspended, but this Court should not mandate that approach as the only acceptable order in which to deal with the issue.
Provisions similar to the provisions to which I have just referred were considered by High Court in Dinsdale v The Queen[22] on an appeal from the Court of Criminal Appeal of Western Australia which had set aside suspended sentences imposed on two counts of sexually abusing a child; the High Court reversed the decision of the Court of Criminal Appeal.
[22] (2000) 202 CLR 321.
In Dinsdale it was accepted that imprisonment was the appropriate penalty and the only live issue was whether it should be served immediately or suspended; it was not argued in the High Court that the Court of Criminal Appeal had erred by not considering a monetary penalty. The applicable provisions of the Western Australian legislation provided that a sentence of imprisonment must not be imposed unless justified by the seriousness of the offence or by the need to protect the community.
Gleeson CJ and Hayne J appear to have construed “imprisonment” to mean immediate imprisonment. On that construction it followed that the West Australian statute required a sentence of imprisonment to be suspended unless immediate imprisonment was necessary for the protection of the community. Their Honours said:
[14]Sections 6(4) and 39(3) reflect the principle of sentencing that imprisonment is a punishment of last resort. Section 76(2) also reflects that principle, and the related consideration that committing a further offence during the period of suspension should not produce an unintended consequence.
[15]No doubt, under s 6(4), a sentencing judge must determine whether imprisonment is warranted and, under s 76(2) must fix the length of the term which would otherwise be appropriate. Neither step must be allowed, however, to obscure the need to decide whether suspended imprisonment is an appropriate disposition of the matter. Only if it is decided that it is not appropriate may a court impose a term of immediate imprisonment.[23]
[23] Dinsdale v The Queen (2000) 202 CLR 321 at 328 [14]-[15].
In South Australia the approach taken by Gleeson CJ and Hayne J is not open because s 38 of the CLCA conditions the power to suspend on a finding “that good reason exists for doing so”.[24] It follows that in South Australia the first question is whether any penalty other than imprisonment will satisfy the objects of sentencing. If a sentence of imprisonment is necessary, it will be served immediately unless good reason exists to suspend it. It may be accepted that the desirability of avoiding immediate imprisonment will inform the identification of good reason, but a sentence of imprisonment must be served unless the Judge finds that there is good reason to suspend it.
[24] Cf Sentencing Act 1995 (WA) s 76.
Gaudron, Gummow and Kirby JJ also allowed the appeal but on the ground that the Court of Criminal Appeal did not provide reasons for its conclusion that the sentence was manifestly inadequate.[25] Kirby J commented adversely on the tendency to impose a suspended sentence of imprisonment as a “compromise” between the competing dispositions of a fine or immediate imprisonment when, on a close analysis, imprisonment could not be justified. Kirby J said:
[74]The statutory power to suspend the operation of a sentence of imprisonment, although historically of long standing, is sometimes considered controversial. The ‘[c]onceptual [i]ncongruity’ involved in this form of sentence has been criticised. It has been suggested that there is a temptation to use this option where a non-custodial order would have been sufficient and appropriate. It has also been suggested that, despite the rhetoric, such sentences are seen by some not to constitute much punishment at all.
…
[76]… Nonetheless, the criticisms draw attention to the need for courts to attend to the precise terms in which the option of suspended sentences of imprisonment is afforded to them and to avoid any temptation to misapply the option where a non-custodial sentence would suffice. They also emphasise the need to keep separate the two components of such a sentence, namely the imposition of a term of imprisonment, and the suspension of it where that is legally and factually justified.
…
[78]From s 76, it may be inferred that suspension of imprisonment is only to be available where, first, the court has concluded that sentence to a term of imprisonment is warranted and where the court imposes that sentence. Moreover, by s 76(1), it is not to be available where the term of imprisonment imposed, in aggregate terms, is more than five years. Within such limitations, the discretion apparently conferred on the court is expressed in very wide language. By s 76(1), a court ‘may order’ suspended imprisonment. By s 76(2), it may not do so unless imprisonment for the term or terms equal to that suspended would, if it were not possible to suspend the sentence, be appropriate ‘in all the circumstances’. Plainly, s 76(2) is designed to restrain the imposition of an artificial term of imprisonment, inflated with the object of giving an appearance of severe punishment although it is expected that this will not actually be carried into effect.
[79]… The starting point, given emphasis by the terms of s 76(2), is the need to recognise that two distinct steps are involved. The first is the primary determination that a sentence of imprisonment, and not some lesser sentence, is called for. The second is the determination that such term of imprisonment should be suspended for a period set by the court. The two steps should not be elided. Unless the first is taken, the second does not arise. It follows that imposition of a suspended term of imprisonment should not be imposed as a ‘soft option’ when the court with the responsibility of sentencing is ‘not quite certain what to do’.[26] (footnotes omitted)
[25] Dinsdale v The Queen (2000) 202 CLR 321 at 330 [25] per Gaudron and Gummow JJ and at 341-344 [63]-[73] per Kirby J.
[26] Dinsdale v The Queen (2000) 202 CLR 321 at 344-346 [74]-[79].

The approach described by Kirby J was well known in South Australia well before the decision in Dinsdale. In Wood v Samuels,[27] Walters J spoke of the sentencing practice in South Australia in the 1970s which was that a suspended sentence
is imposed only when by eliminating all other alternatives, the court thinks the case is one for imprisonment, and though it be a case for imprisonment, an immediate custodial sentence is not required in the circumstances of the particular case. In my view a suspended sentence is aimed primarily at the offender whom it is not appropriate to send to prison for the first time and who is most likely to benefit from an exercise of the court’s clemency.[28]
[27] (1974) 8 SASR 465.
[28] Wood v Samuels (1974) 8 SASR 465 at 468. Walters J also referred to R v O’Keefe [1969] 2 QB 29 at 32 per Lord Parker CJ. The approach was confirmed in Scott v SA Police (1994) 61 SASR 589 at 592 per Mullighan J.
In this case, the sentencing remarks of the Judge proceed on the basis that a sentence of imprisonment was necessary and the real question was whether there were good reasons to suspend that sentence. There was no error in proceeding on that premise. Any penalty less than imprisonment such as a fine or conditional discharge would have been manifestly inadequate. It was not submitted during sentencing submissions that the Judge should impose a lesser penalty than imprisonment. No such submission was made on appeal. There is no reason in my view to burden a Judge with a requirement to provide reasons for eliminating sentencing options which are plainly unrealistic and not sought. Nor is there any reason to require a Judge to announce the term of the imprisonment that will be imposed before considering whether or not to suspend that sentence.
The requirement that sentences less than imprisonment be considered before imposing a suspended sentence is calculated to ensure, as Kirby J explained, that suspended sentences are not imposed to avoid making the sometimes difficult choice between a non-custodial penalty and imprisonment. A suspended sentence should not be seen as an easy way of resolving that dilemma. An offender should not be burdened with the requirements of a suspended sentence and the concern that the sentence might be activated in the future, if the offending does not warrant imprisonment at all. Moreover, a suspended sentence for one reason or another may ultimately be revoked. An offender should not be required to then serve a sentence of imprisonment that was never warranted because he or she has breached a condition of the bond under which the term was suspended.
The Judge did not make that error in this case. The Judge commenced her consideration of the issue of suspension with the words “I am urged to suspend the period of imprisonment that I must impose” (emphasis added). Plainly the Judge had decided that no penalty less than imprisonment could satisfy the objects of sentencing before she turned to whether it should be suspended. The Judge could not reasonably have decided otherwise. It follows that the Judge did not make the error of which Kirby J warned in Dinsdale.
It remains to deal with the appellant’s complaint that the Judge gave her reasons for not suspending the imprisonment which she ultimately imposed before she had announced the length of that term. Plainly enough there are many good reasons for a Judge to decide in his or her own mind the length of the term before deciding whether or not to suspend it. However, the acceptance of that proposition does not imply any further proposition about the order in which these matters should be addressed in the sentencing remarks.[29] The fact is that in most if not all cases a Judge will have decided both the terms and the issue of suspension before commencing his or her remarks. The reasons for determining the term before resolving the question of suspension are said to be twofold.
[29] Cf Lander v Police (2002) 131 A Crim R 59; R v Spong (2008) 100 SASR 55.
First, there is the risk of error in imposing a longer term than can strictly be justified because a Judge is comforted by his or her predetermination to suspend. That error could not have been made here because the Judge did not suspend the term. I would nonetheless observe that, if it could ever be demonstrated, the fact that a Judge had actually decided to suspend before deciding on the length of the term does not necessarily mean that he or she has imposed a term which is longer than that particular Judge would have imposed. It certainly does not mean that the term will be longer than any term which could reasonably be imposed. At most, determining to suspend before finding the length of the term is an approach which alerts an Appeal Court to the possibility of error but is not in itself demonstrative of error. I understand the view I have expressed to be consistent with the majority decision in R v Stubberfield.[30] What was described as the “correct approach” in Subberfield[31] is desirable, but a departure from it does not, of itself, show that the court has “has erred in any relevant respect in the exercise of [the] sentencing discretion”.[32]
[30] [2005] SASC 383.
[31] R v Stubberfield [2005] SASC 383 at [19].
[32] R v Stubberfield [2005] SASC 383 at [20].
The second reason for first fixing the term of imprisonment to be imposed is said to be that there is a risk that extraneous material may be considered in determining whether to suspend and conversely that relevant material may be ignored.[33] Plainly enough the weight some considerations have may be different depending on whether the length of the term or suspension is in issue. However, subject to the issue of parity between co-offenders with which I deal below, I find it difficult to imagine any circumstance which would be relevant to fixing the head sentence which would not be relevant at least to some extent to the question of suspension. I find the converse equally difficult to imagine. In any event, I do not understand why the risk of committing such an error should vary according to whether the term or the issue of suspension is first considered. Again, I can accept no more than that the order in which a sentencing Judge approaches those questions might alert the Court of Appeal to the risk of error.
[33] R v Spong (2008) 106 SASR 55.
The authorities of R v Wilton[34] and R v Palliaer[35] are often cited in support of the proposition that an error in the order in which the questions are addressed is an error in the exercise of the discretion. In my respectful opinion, those cases establish no such proposition. In Wilton, a Crown appeal, the Full Court held that the suspension of a sentence of imprisonment on one co-offender was not a relevant circumstance when considering the suspension of the imprisonment imposed on another. The oft cited passage of King CJ[36] emphasises the importance of first reflecting the relative culpability of co-offenders in the head sentence before turning to consider the reasons peculiar to each offender for suspending or not suspending that term; in that latter process considerations of disparity play no part. In Palliaer, the sentencing Judge imposed the same head sentence on co-offenders but decided to reflect the lesser culpability of one by suspending that sentence. The Full Court was again faced with sentences where a consideration which was extraneous to the discretion to suspend – the relative culpability of the co-offender – had been taken into account.
[34] (1981) 28 SASR 362.
[35] (1983) 35 SASR 569.
[36] R v Wilton (1981) 28 SASR 362 at 367.
In my respectful opinion, there is no persuasive reason to insist that sentencing judges announce the length of the term of imprisonment before announcing whether the sentence will be suspended and explaining their reasons for exercising the discretion in one way or another. There is no binding authority on this Court which so decides. I would dismiss the appeal on this ground.
Effect on children
The Judge was never informed of the arrangements which the appellant had made for the care of her children in the event that she was imprisoned. A letter provided to the Judge from the appellant’s father showed that he was in no position to care for the children because he was himself responsible for the care of a very young child. However, letters from the appellant’s brother and mother were silent as to their capacity to care for the children, although the material showed that the appellant’s brother has three children of his own. The Judge was not informed of any contingency plans which had been made for the care of the appellant’s children should she be imprisoned. The submissions focused instead on a concern that the appellant’s estranged husband might win custody of them. Reference was made to Family Court proceedings which had been initiated by him and defended by the appellant. It was said that that was a matter of great concern because the children had witnessed an assault or assaults against their mother. The eldest child was the victim of an assault himself.
A report from a child psychiatrist put before the Judge suggested that the appellant’s seven year old son was at risk of developing an anxiety disorder if his mother were to be imprisoned. However, that opinion was given on the premise that the children “would no doubt reside with their father”.
On appeal this Court was informed the children are now being cared for by the appellant’s brother and his wife.
Section 10(1)(n) of the CLSA provides that the court must take into account the effect of the sentence on the offender’s family. It was held in R v Adami[37] that that provision does not alter the effect of the common law because the preamble to s 10 requires the court to have regard to such of the matters it enumerates “as are relevant”. The common law position is that “as a general rule the court does not mitigate a sentence because of its effects on the offender’s family. If his feelings for his family are those of genuine concern and affection, it behoves him to avoid crime”.[38]
[37] (1989) 51 SASR 229.
[38] Tame v Fingleton (1974) 8 SASR 507 at 511.
It is often observed that sentences of imprisonment necessarily impose hardship upon the dependants of a convicted person.[39] In R v Wirth,[40] Bray CJ thought that it would be patently unjust if two people accused of the same crime in the same circumstances with no other differentiating factor were to receive different sentences because of the effect of the sentence on the family of one. Bray CJ accepted that it may be that in “extreme cases” the court could take into account the effect of the sentence, but he found it difficult to envisage any circumstance where it would be logical to do so. Wells J thought that “hardship likely to be caused by a sentence of imprisonment under consideration ought to be taken into account where the circumstances are highly exceptional, where it would be, in effect, inhuman to refuse to do so”.[41]
[39] See Sullivan v The Queen [1975] Tas SR 146 per Green J; R v Wirth (1976) 14 SASR 291 at 296.
[40] (1976) 14 SASR 291.
[41] R v Wirth (1976) 14 SASR 291 at 296.
The exception articulated by Wells J has been recognised in many cases since.[42] In my respectful opinion, even though the exception is not strictly logical by reference to matters of sentencing principle, it is justifiable on the grounds of public policy. In my view, where a claim is made to mitigate a sentence on the grounds that it will adversely affect an offender’s family, the court must necessarily weigh the public interest in imposing a sentence which sufficiently serves the purposes of punishment and deterrence against the public interest in the welfare of the children and dependents of the offender.[43] The offender’s failure to discharge his or her duty to them does not extinguish the public interest in their welfare. The welfare of children is a matter of public interest of the highest importance.[44]
[42] R v Moffa (No 2) (1977) 16 SASR 155; R v Spiers (1983) 34 SASR 546; Boyle v The Queen (1987) 34 A Crim R 202; R v Maslen (1995) 79 A Crim R 199. Cf R v Warying (1982) 62 A Crim R 1; R v Amuso (1987) 32 A Crim R 308; Stewart v The Queen (1994) 72 A Crim R 17.
[43] Neill v Police [1999] SASC 270 at [24].
[44] Family Law Act 1975 (Cth) s 60CA; Walsh v Department of Social Security (1996) 67 SASR 143 at 147; Hillman v Black (1996) 67 SASR 490 at 518; Jones v Dodd (1999) 73 SASR 328 at 338 [62].
With respect, I do not find the threshold test of “exceptional circumstances” useful because it focuses on circumstances which are peculiar instead of the substance of the concern about the childrens’ welfare and its relationship to the other sentencing considerations.[45] I would prefer to take the approach that the welfare of the children of an offender who faces imprisonment is always a relevant consideration but that in the majority of cases it will have no material effect on the sentence imposed because of the public interest in the imposition of condign punishment. However, the effect of imprisonment of an offender on his or her children or other dependents must be considered in the circumstances of each case and an appropriate balance struck between their welfare and the need to protect the community through the enforcement of the criminal law. The approach I prefer probably differs little in the results it yields, but in my respectful opinion it better explains that result and, in part at least, answers the illogicality which concerned Bray CJ in Wirth.
[45] Cf R v Hinton (2002) 134 A Crim R 286 at 292 [26].
That said, it remains the evidentiary responsibility of the offender facing imprisonment to show the extent to which imprisonment will adversely affect his or her children. The appellant did not demonstrate that her estranged husband would win custody of the children or that the children would be separated. It always remained possible, if not likely, that the appellant’s family would accept the responsibility of looking after her children and that the Family Court would not order that the children reside with their father. Indeed it was always improbable that the Family Court would order residence arrangements which put the children at risk of serious harm. The appellant did not suggest in the course of sentencing submissions that a placement of the children with the appellant’s brother would leave them at significant risk of emotional harm. The report of the child psychologist did not consider the affect on the children’s welfare if they were to reside with their uncle and cousins.
It may be that firm arrangements were not made for the childrens’ care in the event of imprisonment because the appellant could not face up to that prospect. However, if an offender fails to fully inform a sentencing Judge of the range of residential and guardianship arrangements available for the care of his or her children, he or she can not expect a Judge to reduce the sentence that would otherwise be appropriate on the basis that the worst should always be feared and expected.
In my view, no error has been demonstrated in the approach taken by the Judge. The risk to the welfare of the children was not so great as to call for any material reduction in the sentence that was otherwise appropriate. Indeed, the non-parole period is relatively short and consequently reduces the potentially adverse consequences, on her children, of the appellant’s imprisonment. As it turns out, it appears that the children have been properly cared for in their uncle’s home. There is no application to adduce evidence on this appeal of any material or serious risk to their welfare which has emerged since the sentence was passed. In particular, I observe that the appellant will be eligible for release on home detention after serving six months, being one half of her non-parole period. I accept that it is not permissible to anticipate the legislative and administrative adjustments which might be made to a sentence for the purpose of modifying the sentence which would otherwise be imposed to counteract the effect of those adjustments.[46] However, in assessing the consequence of a term of immediate imprisonment on the welfare of the appellant’s children and the weight that consequence should be given, it is permissible in my view to have regard to the possible favourable exercise of such powers.[47]
[46] Hoare v The Queen (1989) 167 CLR 348 at 364-5.
[47] R v Wirth (1976) 14 SASR 291 at 294, 296.
This ground must therefore be rejected.
Failure to take into account police statements
A convicted person may appeal against the sentence passed on the conviction on any ground with the permission of the Full Court.[48] The appeal being against the discretionary exercise of imposing a sentence, the ground must allege an error that “has been made in exercising the discretion”.[49] The appellant by her notice of appeal complained that the Judge erred in the exercise of the discretion by failing to have regard to the statements which she and her children gave against her estranged husband and which detailed the assaults against her.
[48] Criminal Law Consolidation Act 1935 s 352(1)(iii).
[49] House v The King (1936) 55 CLR 499 at 505.
The statements were said to be relevant to the potential affects of the appellant’s imprisonment on her children, who had witnessed the violence and who may be required to give evidence against their father. It was also contended that the statements would give the Judge a full appreciation of the appellant’s background. In the course of submissions the appellant’s counsel described the appellant’s marriage as “extremely violent” and “one in which there were numerous sexual assaults”. Counsel informed the Judge that the appellant received a “significant beating” even after their separation. The appellant stressed that the violence was much more than “a couple of isolated counts of domestic violence”. Prosecuting counsel did not oppose the invitation to read the statements but submitted that the details of the violence were not material.
The Judge did not read the statements. The Judge expressed the view that it would be inappropriate to read the detail of the allegations made by the appellant against her estranged husband and make findings on them when he was awaiting trial in the District Court. In my opinion the Judge was wrong to take that view. The proceedings brought against the husband were separate and distinct from the matters for which the appellant was before the court. Any finding made for the purpose of sentencing could have no effect in the proceedings brought against her estranged husband and certainly would not bind the parties to those proceedings. Moreover, insofar as the appellant relied on the violence inflicted on her by her estranged husband as a mitigatory factor, the onus she carried was only on the balance of probabilities. Furthermore, there could have been no real dispute between the appellant and the Director of Public Prosecutions as to that violence. The Director was prosecuting her estranged husband on the basis of those statements. The Director could hardly be heard to deny the truth of the events therein described.
However, the erroneous view of the Judge is not an error which vitiates the sentence unless it affected the exercise of her discretion. Relevantly to these proceedings the error could only be said to affect the exercise of the sentencing discretion if the statements, which were, for mistaken reasons, ignored by the Judge, were in fact material to the exercise of her discretion. After reading those statements, I have concluded that the Judge was not bound to take them into account.
It is commonplace for offenders to inform a Judge of abuse or other misfortune that they have suffered in their lifetime. The fact that they suffered the abuse or misfortune may be relevant for a number of reasons; for example, it may have left them in impoverished financial circumstances or in a frail psychological state which in some way explains the commission of the offending. Alternatively, it may demonstrate a capacity to overcome adversity which augurs well for their rehabilitation. However, Judges are rarely, if ever, presented with statements detailing the particular circumstances of every event or misfortune. Sentencing is a practical matter. Although it is true in a general sense that a Judge must obtain a sound understanding of the personal circumstances of the offender, there are very obvious limits to the nature and extent of the enquiry that can practically be undertaken. Criminal courts simply do not have the time to hear the minute detail of an offender’s past whether in written or oral form. It would be an abuse of the process of those courts to burden them with a level of detail that is not materially relevant to their sentencing function.

In this case, the report of Dr Raeside and the lengthy submissions made by the appellant’s counsel made it abundantly clear that the appellant was the victim, over many years, of protracted and persistent violence and sexual abuse and that that abuse had persisted through to the time of the offending and beyond. However, it is plain from the opinions of Dr Raeside which I have set out in [80] above that the psychological effect of that violence was not a significant factor in the commission of the offences. Given the relatively insignificant part played by the appellant’s psychological condition in her offending it was simply immaterial to know precisely how and when the various assaults were committed. Those particulars could not have provided any stronger basis for mitigation than that which appeared in the report of Dr Raeside and from the submissions of counsel.
The Judge expressly took the violence suffered by the appellant into account in the following way:
Dr Raeside’s report continues on to some other important things and Dr Raeside refers to the allegations made to him of what he has described as protracted domestic violence from your former husband.
I am told and I accept that these allegations have been made and I will sentence on the basis that those allegations, indeed, have affected you, that the allegations relate to violent assaults upon you and your children and include allegations of rape. …
As I have said, because of that matter being a live matter contested before this very court, I do not intend going beyond the oral submissions made to me which I will act upon and the material contained in the report of Dr Raeside. I do not consider it appropriate for me to go beyond that nor do I make any findings specifically; given that [your estranged husband] will be tried before this court in the future.
I will sentence you on the basis that you alleged that you were a victim of an abusive relationship involving serious acts of violence and sexual offending and I will consider what effect Dr Raeside expresses in respect of that alleged conduct. (emphasis added)
Reading the remarks as a whole, it is clear to me that the Judge sentenced the appellant on the basis that she had in fact suffered the violence described in Dr Raeside’s report and mentioned in the oral submissions even though the word “allegations” construed narrowly and in isolation might suggest otherwise. Mere allegations could not have had an adverse effect on the appellant, but the Judge clearly accepted that the appellant was affected in the way described by Dr Raeside. It follows that, unless one were to treat the passage of the sentencing remarks that I have just cited as meaningless, the Judge accepted that the appellant was the victim of protracted violence and that she had suffered the psychological consequences described by Dr Raeside.
I am satisfied that the expatiation of the allegations of violent assaults and rapes inflicted on the appellant do not add to the weight of the report of Dr Raeside or the submissions of counsel. They do not lessen the culpability of the appellant or add anything further to the explanations of her conduct which were before the Judge. They do not contain any relevant material which the Judge was bound to consider.
It follows that the Judge has not failed to take into account a relevant matter and that error in the exercise of the discretion has not been shown. This ground of appeal is dismissed.
Lack of contrition
The Judge turned her mind to the issue of contrition; it is not suggested that the Judge failed to consider it at all. The appellant’s complaint is that the Judge did not give it sufficient weight. Placing more or less weight on a sentencing consideration than would have been placed on it by the Judges who constitute the Appeal Court is not a sentencing error. It is not identified as a relevant error in House v The King.[50] It is the very essence of a discretion that some judges will accord a different weight to particular circumstances than others.
[50] (1936) 55 CLR 499.
In any event I would have dealt with the issue of contrition in much the same was as the Judge.
The appellant pleaded guilty on the day of trial, 21 October 2009. The plea to counts two and four were entered on the basis that a nolle prosequi would be entered on counts one and three. However, the Director of Public Prosecutions had informed the appellant’s lawyers as early as February 2009 that it would accept pleas to counts two and four in satisfaction of all charges even though there remained some disagreement about the relevance of the conduct which was the subject of counts one and three to the sentencing of the appellant on counts two and four.
The appellant’s responses to the police officers who interviewed her suggested no remorse; she did not acknowledge the gravity of her conduct. To Dr Raeside the appellant claimed that she assumed Tassone knew the witness and that she gave Tassone his name because his statement supported Tassone’s account. Those statements misrepresent the purpose behind her improper disclosure. Nor did the appellant fully disclose to Dr Raeside the reason for providing Tassone with the registration checks but instead sought to minimise her culpability by claiming that checking registration details for personal reasons was a common police practice.
On 6 December 2007 the appellant supported her claim to full pay during her continuing suspension by asserting:
The incidents have been misrepresented and at no time did I intend to commit any offences. I will be contesting the charges. I believed at the time I was going the right thing by exchanging information to assist with police intelligence. The matter is currently before the District Court and set for a Directions Hearing on 2^nd October 2007.
The Judge was right to remark to the appellant that her false protestations of innocence, which she made in support of her claim for ongoing payment of her salary while she was suspended, were a “clear demonstration that you lacked contrition”. The Judge was entitled, indeed bound, to have regard to that fact. I accept that the appellant was no doubt motivated to do so by a concern for her children, as well as herself, but the weight to be given to this consideration was for the Judge.
It follows that there was an abundance of material which demonstrated a lack of contrition.
It appears from two personal references which were put before the Judge that the appellant did express regret and remorse to those referees. However, the appellant’s private comments to those individuals contrasts starkly with her conduct overall. The Judge was right to observe that “actions speak louder than words”. It is apparent that the Judge gave very little weight to the bare expression of remorse referred to in those references, but it is equally plain that the Judge did not treat the lack of contrition as an aggravating factor. Indeed no such submission was made.
For the above reasons, the appeal on this ground should be dismissed.
Assistance to authorities
The appellant claims that the Judge failed to have regard, in her favour, to the assistance she has given and will give police in the prosecution of her former husband for the assaults and rapes committed against her.
In my view credit is, as a general rule, given to offenders for co-operating in the investigation and prosecution of other offenders where that co-operation is given in the public interest and at some risk to themselves. I am prepared to accept that in exceptional cases credit may be given for co-operating in the investigation and prosecution of a crime of which the offender is a victim. In the generality of cases, the offender’s own interest in self-preservation will usually be the predominant reason for reporting and co-operating in the prosecution of offences against himself or herself. There may be exceptions to that general rule. A former member of an organised crime syndicate who, at great risk to himself or herself, assists the prosecution of members of that syndicate for offences committed against him or her may in some circumstances be entitled to some credit for that.
The circumstances surrounding the complaint made by the appellant about her former husband’s conduct do not warrant taking the exceptional course of giving her credit for making that complaint. I make the following observations in that regard. First, the appellant’s own interests and the interests of her children are served by taking that action. The successful prosecution of the proceedings will result in greater protection and security for all of them. Secondly, there is no reason to think that the appellant is in any greater danger of assault as a result of making the complaint than she was before she made it. Thirdly, for the reasons given above there is no close connection between the commission of the offences for which the appellant is to be sentenced and that violence. Finally, there is no evidence that her decision to report her former husband’s violence in any way stems from a desire to atone for her offending.
Conclusion
The appellant has not demonstrated a failure to take into account relevant matters or that the Judge took into account irrelevant matters. It follows that the appellant has not shown error which I would describe as a process error in the exercise of the discretion.[51] If a process error had been shown, this Court would have been entitled to resentence the appellant even though the sentence was not manifestly excessive.[52] However, I would not in any event have imposed any lesser sentence than the one imposed by the Judge. The appeal must be dismissed.
[51] See R v Horstmann [2010] SASC 103 at [36].
[52] Winzor v The Queen [1991] SASC 2732 at [4]; R v Moyle (2007) 96 SASR 287 at 289 [14]-[15]; R v Horstmann [2010] SASC 103 at [38].