R v Howat - [2017] SASCFC 41

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HOWAT
[2017] SASCFC 41
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Parker and The Honourable Justice Doyle)
10 May 2017
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - MISCELLANEOUS OFFENCES AND MATTERS - FINANCIAL TRANSACTION OFFENCES
The appellant pleaded guilty to three groups of offences. The first involved six counts of theft. This was representative of 46 counts of theft, involving a total of approximately $105,500 stolen from the appellant’s employer during an approximately 17 month period. The second involved 39 counts of theft and eight counts of dishonestly dealing with a document. These counts involved a total of about $67,000 stolen from the appellant’s mother during an approximately 12 month period. The third involved two breaches of the appellant’s two bail agreements.
For the first group of offences, the sentencing judge commenced with a notional head sentence of eight years imprisonment, reducing this by one year on account of the appellant’s pleas of guilty to seven years. For the second set of offending, the sentencing judge commenced with a notional head sentence of six years imprisonment, which he reduced to five years on account of the appellant’s pleas of guilty. His Honour reduced the resulting total of 12 years imprisonment to an overall sentence of nine years, invoking the principle of totality. He fixed a non-parole period of five years. There were numerous delays in the progress of the matter, resulting in the appellant not being sentenced until almost 10 years after her first offences.
The appellant appealed on the grounds that the sentencing judge failed to take into account the delays in the matter and that the sentence was manifestly excessive.
Held per Doyle J (Vanstone and Parker JJ agreeing), allowing the appeal:
1.       The sentencing judge took into account the delay, and hence no error was established.
2.       The sentence imposed was manifestly excessive.
3.       Appellant resentenced to six years imprisonment, with a non-parole period of three years and eight months imprisonment.
Criminal Law Consolidation Act 1935 (SA) ss 134, 140, referred to.
R v Schaefer [2006] SASC 348; House v The King (1936) 55 CLR 499; R v Davies (1996) 88 A Crim R 226; R v Cavanagh [1999] SASC 418; R v Powell (2001) 81 SASR 9; Heaft v Police (2004) 87 SASR 496; Police v Curtis (2004) 145 A Crim R 587; R v Jorquera [2013] SASCFC 145; R v McPhee [2014] SASCFC 107; R v Varano (1989) 150 LSJS 140, considered.

R v HOWAT
[2017] SASCFC 41
Court of Criminal Appeal: Vanstone, Parker and Doyle JJ

VANSTONE J: I agree with the orders proposed by Doyle J and with his Honour’s reasons.
PARKER J: I agree with the reasons of Doyle J and the orders he proposes.
DOYLE J: In 2013 the appellant pleaded guilty to three groups of offences.
The first involved six counts of theft contrary to s 134 of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). The appellant accepted that these counts were representative of 46 counts of theft, involving a total of approximately $105,500 stolen from her employer, Northern Plumbing Pty Ltd, during the approximately 17 month period from 11 August 2005 to 21 January 2007 (the Northern Plumbing offending).
The second involved 39 counts of theft contrary to s 134 of the CLCA, and eight counts of dishonestly dealing with a document contrary to s 140 of that Act. These counts involved a total of about $67,000 stolen from the appellant’s mother, Mrs Gehlken, during the approximately 12 month period from 11 January 2011 to 26 December 2011 (the Mrs Gehlken offending).
The third involved twice breaching the reporting conditions of the appellant’s two bail agreements in respect of the above charges.
In September 2014, the sentencing judge heard evidence on disputed facts that bore upon the factual bases for sentencing in respect of both sets of offending. In summary, the appellant contended that she had been coerced by her former partner to commit both courses of offending. In July 2016, the sentencing judge delivered reasons in which he rejected the appellant’s contention. He proceeded to sentence on the basis that the appellant was not induced or pressured to steal from either Northern Plumbing or her mother, and that the reason or motivation for the offending was unknown.
In respect of the Northern Plumbing offending, the sentencing judge commenced with a notional head sentence of eight years imprisonment. He reduced this by one year on account of the appellant’s pleas of guilty to seven years. In respect of the Mrs Gehlken offending, the sentencing judge commenced with a notional head sentence of six years imprisonment, which he reduced to five years on account of the appellant’s pleas of guilty. His Honour reduced the resulting total of 12 years imprisonment to an overall head sentence of nine years imprisonment, invoking the principle of totality. He fixed a non-parole period of five years. He declined to suspend the sentence or order a home detention sentence.
The sentencing judge recorded a conviction without further penalty for the breaches of bail.
In this appeal against sentence, the appellant relies upon two grounds of appeal:
· The sentencing judge failed to take into account the delays involved in prosecuting and determining the matter, and as a result failed to have regard to the appellant’s rehabilitative progress during the period of the delay, and failed to have regard to the unfairness to the appellant that resulted from the delay.
· The sentence, including the non-parole period, is manifestly excessive.
Circumstances of the offending
Northern Plumbing was a relatively modest sized family owned business. The appellant commenced her employment with Northern Plumbing in June 2000, when she was 17 years of age. She commenced as a junior office clerk, and over time progressed to the position of office secretary.
In her role as office secretary, the appellant oversaw the office juniors and was responsible for paying incoming invoices and accounts using the business cheque book. She wrote cheques for her employers to sign. Her employers then acquired a signature stamp that she was authorised to use on cheques for fortnightly wages and other accounts. She was also authorised to use the business credit card to pay utility bills, advertising and other expenses.
The Northern Plumbing offending commenced in August 2005 and involved the appellant using both her employer’s cheques and credit card. Over the period through to 21 January 2007 she stole a total of approximately $105,500.
By late 2005, the Northern Plumbing overdraft account was nearing its limit, and one of the owners was forced to contribute her personal funds to avoid financial embarrassment to the business. The financial problems for Northern Plumbing continued and indeed worsened, and that owner was required to use her inheritance and to sell investments in order to contribute further personal funds to the business.
The worsening financial circumstances of the business resulted in the owners causing an audit to be carried out in 2007. The audit revealed the appellant’s offending.
The appellant has made no restitution to her former employer, with her first offer of restitution coming in September 2016, at the time of sentencing submissions. Nor has the appellant ever expressed any remorse for what she did to the owners of the Northern Plumbing business.
After a gap of about four years following the Northern Plumbing offending, the appellant commenced stealing from her mother in January 2011. Over an almost 12 month period she proceeded to steal a total of $67,000 from her mother. She stole the money from a Credit Union account in which her mother had placed money received by her as compensation for injuries she suffered in a motor vehicle accident. The money was intended, at least in part, to cover anticipated future medical expenses to be incurred by the appellant’s mother.
The appellant’s theft of her mother’s money commenced not long after her mother received the money. The appellant’s mother had sought the appellant’s assistance in banking online, and for this purpose had given the appellant her online banking details. The appellant used these details to steal the sums the subject of the Mrs Gehlken offending.
The appellant’s offending was discovered when her mother received a statement from her Credit Union which indicated that her account had been closed and that all the money had gone. There was also money missing from Mrs Gehlken’s online savings account. The appellant’s mother asked her to drive her to the Credit Union in January 2012 so that she could find out where her money had gone. It was only on the way to the Credit Union that the appellant told her mother that there was no money in her account because she had stolen it. When her mother asked her why she had stolen it, the appellant answered merely that she would pay her back. She did not ever do so in the nearly five year period between this conversation and the death of the appellant’s mother in October 2016.
On 31 August 2012, the appellant’s mother signed a statement that pointed out that the appellant had never said sorry to her for stealing the money or explained why she had stolen it. Mrs Gehlken gave evidence on the disputed facts hearing in 2014 that her daughter’s offences made her sad, adding that while she knew that the appellant should be, and needed to be, in trouble for what she had done, she hoped the appellant would not go to jail. The sentencing judge was later informed by the appellant’s counsel that the appellant had subsequently apologised to her mother several times, and that the appellant’s mother had been prepared to accept the apology (although, as the sentencing judge observed, there was no confirmation of this). The appellant’s counsel also informed the sentencing judge that the appellant’s mother had not sought repayment of the money she had stolen and so she had not made any repayment.
Procedural chronology
This matter has had an unfortunate procedural history. Given the complaint about delay now advanced by the appellant, it is relevant to outline that history.
There is reference in the materials before this Court to a police incident report in 2008, indicating that the Northern Plumbing offending had been reported to the police by this time. However, for reasons that are not explained in the evidence, it appears the matter was not allocated to a detective until some time in 2011.
The appellant was arrested for the Northern Plumbing offending in August 2012, and placed on bail. She was then arrested for the Mrs Gehlken offending in October 2012, and again placed on bail.
The Northern Plumbing offending was listed for trial commencing on 22 July 2013. On 1 July 2013, the appellant pleaded guilty to the six representative counts of the Northern Plumbing offending. On 31 October 2013, the appellant pleaded guilty to the 47 counts constituting the Mrs Gehlken offending.
On 11 December 2013, the Court was informed that the appellant’s position was that she was “to some degree coerced into this conduct, short of duress.” It was then said that a Mr Doyle (the appellant’s former partner from 1999 until 2007) was responsible for the coercion. It became necessary to conduct a disputed facts hearing to determine the factual bases for sentencing in respect of both the Northern Plumbing and the Mrs Gehlken offending.
The disputed facts hearing occurred on 11 September 2014. The sentencing judge delivered judgment on the disputed facts on 19 July 2016, concluding that he was not satisfied on the balance of probabilities that Mr Doyle induced or put pressure on the appellant to steal from Northern Plumbing or her mother. Indeed, he was satisfied beyond reasonable doubt that Mr Doyle did not do so. The sentencing judge believed the evidence of Mr Doyle, and rejected much of the appellant’s evidence, including her evidence to the effect that she was under pressure or threats from Mr Doyle to steal from Northern Plumbing or her mother.
Sentencing remarks
In his sentencing remarks of 28 November 2016, the sentencing judge noted that the maximum penalties for the offences of theft and dishonestly dealing with a document were imprisonment for 10 years. His Honour summarised the circumstances of the offending, and procedural history, in similar terms to the above.
In relation to the circumstances personal to the appellant, the sentencing judge noted that the appellant was 22 years of age when she started stealing from Northern Plumbing, 28 years of age when she started stealing from her mother, and 34 years of age at the date of sentencing.
His Honour noted the appellant’s failure to make any restitution to her former employer or mother. While the appellant had made no apology to her former employer, his Honour noted the appellant’s instructions that she had eventually apologised to her mother.
The sentencing judge considered in some detail a report obtained from a psychologist, Dr White, who had assessed the appellant in February 2014 (and hence prior to the disputed facts hearing). The history given to Dr White revealed that the appellant’s parents had separated but were both still alive in 2014. The appellant had maintained a “close and good” relationship with her mother. She also had a brother, two half-brothers, and a half-sister. She had been in a loving relationship with a supportive partner since 2009. Her partner has a daughter, with whom she has a good relationship.
The history provided to Dr White also revealed that, following her departure from Northern Plumbing, the appellant was unemployed for about nine months before obtaining employment as a contract administration estimator. That employment lasted approximately three years.
The sentencing judge noted that other aspects of the history provided by the appellant to Dr White were inconsistent with his conclusions on the disputed facts hearing. In particular, the appellant had told Dr White that her offending was the result of threats and manipulation by Mr Doyle.
The sentencing judge held that, in the circumstances, he could give little weight to Dr White’s conclusion that the appellant may have been suffering from post-traumatic stress disorder and an adjustment disorder with mixed anxiety and depressed mood. His Honour observed that “[i]n the circumstances I have little regard to his conclusions, and even less to what he reported you told him about avoiding the company of others, not being overly assertive, conservative with your ideas and very often compliant with others.”
The sentencing judge noted the appellant’s contention through her counsel that she suffered from depression and had consulted her general practitioner about this in 2015. The general practitioner drew up a mental health treatment plan and suggested she see a psychologist. The appellant did not act on this, and did not make an appointment to see a psychologist, until the week of sentencing submissions in September 2016. The sentencing judge nevertheless accepted that the appellant probably had some elements of depression, which he suspected related to her legal situation. In this context, the sentencing judge noted that the appellant had been “facing sentence for very serious dishonesty offences which [she] committed over nearly two and a half years on either side of a four year period when [she] did not offend. [She] also faced a significant period when the police were investigating [her] offending against both Northern Plumbing and [her] mother between 2008 and 2013. There was then a further period of years when [her] matters were before this court.”
The sentencing judge also noted the contents of a report obtained in late 2016 for the purpose of assessing the suitability of the appellant for a home detention sentence. The appellant told the author of that report that she did not see herself as presenting a risk to others because in her view her offending was “in the context of the toxic relationship” she was involved in at the time, and that “that situation was unique and limited”. She also told the report writer that the main issue underpinning her offending was her emotional and psychological attachment to her former partner; that her relationship with him had involved a pathological dependency and unconditional willingness to do as he demanded; and that she separated from him around the time she was charged with the offending in relation to her mother.
The sentencing judge noted that at the time of sentencing submissions in September 2016, the appellant was living with her mother, and sometimes a brother or sister. The appellant instructed her counsel that the trust between the appellant and her mother had been gradually rebuilding, largely because she had been providing daily support to her mother. She was assisting her mother with shopping and various other tasks that her mother was unable to undertake because of her failing health. This included taking her mother to medical appointments.
The appellant instructed her counsel in September 2016 that she had the capacity to make some restitution to Northern Plumbing. She had not yet saved up any money to do so, but considered she could pay $200 a week if not imprisoned. At a subsequent sentencing hearing the sentencing judge was informed that the appellant wished to pay an estimated inheritance of $12,000 to Northern Plumbing as partial restitution. However, as the sentencing judge noted, he was not told whether this was an estimate of her personal inheritance or simply the entirety of her mother’s estate. His Honour also noted that the appellant told the author of the home detention report that she recognised the impact that her offending had had on others, and that she remained willing to begin the process of financial restitution to her victims when instructed to do so by the Court. She had saved a small amount of money for that purpose.
Drawing the above threads together, the sentencing judge said:
It is hard for me now, at sentencing, to speculate with any confidence, let alone know, what your motives were in these two periods of offending, which each occurred over several months with four years in between.
I know little about your personal circumstances prior to and during your offending, what led you to offend in the way you did and what you did with the money you stole.
I do not know these things because I disbelieve most of what you said about them and what you said as to your reasons for stealing from your employer and from your mother.
I disbelieve what you recently told the report writer of the home detention report about your offending and your reasons for it. If he did not misunderstand you as to when you separated from Mr Doyle, being around the time you were charged with stealing from your mother, what you told him as to that was a lie.
You were in a position of trust in your employment at Northern Plumbing. Your employers liked you and trusted you with the finances of their business. Your own mother trusted you with her significant payout for injuries she suffered in a motor vehicle accident, which she set aside for expected future operations and medical treatment. She was, in September this year, awaiting medical treatment with no money to pay for it because you stole that money. She has since died.
It appears to me that you committed all of your offending in a most calculated and cold-blooded way. You did so in such a way that it would be hard to detect and in circumstances where you could justify, in the case of Northern Plumbing, the existence of otherwise unexplained moneys coming into the household of you and Mr Doyle.
I must sentence you on the basis that I do not know why you did what you did which caused such grief to your employer and such sadness to your mother.

The sentencing judge concluded by referring to the importance of deterrence, and hence the need for a substantial sentence, in cases where the defendant has engaged in a systematic course of dishonesty involving an abuse of the trust placed in the defendant.
I have earlier mentioned the sentence ultimately imposed by the sentencing judge.
Delay
There have been several significant periods of delay in the progress of the investigation of, and proceedings relating to, the appellant’s offending.
The Northern Plumbing offending concluded almost 10 years prior to the appellant being sentenced. There appears to have been a three year delay between the offending being reported to the police and it being investigated. The appellant was not arrested until four years after the offending was reported. Almost a year passed between the appellant’s plea of guilty and the disputed facts hearing, and the sentencing judge took some 22 months to deliver his judgment on the disputed facts.
Some of these periods of delay, or apparent inactivity, were significant and unfortunate. It is likewise unfortunate that the appellant was not sentenced until about 10 years after the Northern Plumbing offending was exposed and about five years after the Mrs Gehlken offending was exposed.
As the appellant accepts, neither delay, nor the passage of time, are necessarily and of themselves relevant to the sentencing exercise. However, they may become relevant if, for example, the defendant has made rehabilitative progress or there would otherwise be unfairness to the defendant.
As White J explained in R v Schaefer:[1]
A lengthy lapse of time between the commission of an offence and the time of sentence can be relevant in a number of ways. It may give the offender an opportunity to demonstrate rehabilitation or to embark upon a course of rehabilitation which the sentencing court considers should not be interrupted.The uncertainty and anxiety which a long period without determination of the offender's fate entails is also a relevant consideration.When the delay is attributable to conduct of the prosecuting authority, or to the system of administration of justice, the anxiety and uncertainty which the offender has experienced may be particularly important and considerations of personal and general deterrence may become less significant. In general, it is thought that a sentence for a stale crime calls for a measure of understanding and flexibility of approach.Different considerations may apply when the delay in the reporting of the offence, as in many cases of unlawful sexual intercourse, is attributable to the effect of the offender's conduct upon a victim.
[1] R v Schaefer [2006] SASC 348 at [36] (omitting citations).
In this case, the appellant acknowledges that the sentencing judge adverted to the issue of delay. His Honour set out the relevant procedural chronology, and mentioned the likely impact of the period of uncertainty upon the appellant’s psychological condition (in the sense that it likely contributed to her feelings of depression). However, the appellant contended that the sentencing judge erred in not having regard to the appellant’s rehabilitative progress during the period of delay, and the unfairness to the appellant resulting from the delay.
In my view, both limbs of this submission are problematic.
As to the appellant’s rehabilitative progress during the periods of delay, there is little or no evidence that there has been any material progress. While there was significant delay in the investigation of the Northern Plumbing offending after it was exposed, there is no evidence that the appellant was progressing in her rehabilitation. To the contrary, albeit after a period of four years, she resumed her offending by engaging in the course of conduct constituting the Mrs Gehlken offending. And to this day the appellant has not taken any steps to make restitution to the owners of Northern Plumbing or to otherwise express her remorse or contrition for this offending.
While there was a further period of delay between the appellant’s pleas of guilty and pronouncement of her sentence, there is again little basis for suggesting that the appellant had embarked upon any meaningful process of rehabilitation. It is true that the appellant did care for and assist her mother, and in that way made some progress in repairing her relationship with her mother. However, the significance of the progress made in this respect needs to be assessed in light of the concerning fact that the appellant was continuing to attribute responsibility for her offending to her former partner even in late 2016 (as evidenced by the history she gave the author of her home detention report).
As to any unfairness to the appellant resulting from the delay, I accept that this was relevant in a general way to the sentencing discretion. However, as mentioned, the sentencing judge adverted to this consideration when observing that the passage of time, and resulting periods of uncertainty about her fate in respect of her offending, likely contributed to the feelings of depression that the appellant had experienced. The sentencing judge thus took the matter into account, and having taken it into account the weight which it was afforded was a matter for the sentencing judge.
In light of the above, I am not satisfied that the appellant has established error in the sense required by House v The King.[2]
[2] House v The King (1936) 55 CLR 499.
Manifest excess
The appellant contends that the sentence of nine years imprisonment, with a non-parole period of five years, is manifestly excessive. In support of this ultimate contention, the appellant submits that the notional head sentences of eight years and six years for the Northern Plumbing offending and Mrs Gehlken offending are both outside of the range of sentences that might reasonably have been imposed.
The appellant acknowledged that both groups of offending involved an abuse of trust. In the case of the Northern Plumbing offending the appellant abused her position of trust within the business that employed her. In the case of the Mrs Gehlken offending, while the appellant did not hold any formal position of trust, she abused the trust that her mother had placed in her in revealing her banking details to assist her in conducting her affairs. The appellant’s counsel also acknowledged the significance of the sentencing judge’s rejection of the appellant’s version of the factual basis for the offending, the absence of any restitution, and the limited level of remorse shown by the appellant.
However, the appellant’s counsel maintained that the individual notional head sentences, and the ultimate head sentence imposed, were excessive having regard to the limited number of counts, limited period of time over which they occurred and limited dollars sums involved, at least relative to the offending in some of the authorities involving significant sentences of imprisonment for theft.
While each case of course turns on its own facts, and each sentence is the product of a broad discretion taking into account the full range of matters relevant to that sentence, the parties drew the Court’s attention to the following authorities as indicative in a general way of sentences that have been imposed in other cases involving large scale systematic breaches of trust.
In R v Davies[3] the defendant accountant was convicted of 18 counts of fraudulent conversion over a 12 year period, involving a total sum of $492,000. The money was taken from a wealthy elderly client, and only $50,000 was repaid. The sentencing judge imposed a single head sentence of six years imprisonment with a non-parole period of two years six months imprisonment. The Court of Criminal Appeal allowed the Crown appeal, increasing the non-parole period to four years.
[3] R v Davies (1996) 88 A Crim R 226.
In R v Cavanagh[4] the defendant was convicted of 144 counts of fraudulent conversion. The offences spanned a period of four and a half years and involved a total of $240,000. Some offending concerned money taken from an association of which the defendant was the president. The offences related to a period when the appellant was working for a law firm as a wills officer and took money from two clients. The sentencing judge imposed a head sentence of nine years imprisonment with a non-parole period of five years. On appeal, the Court of Criminal Appeal upheld the defendant’s contention that the sentence was manifestly excessive, and substituted a head sentence of eight years imprisonment, but did not reduce the non-parole period of five years imprisonment.
[4] R v Cavanagh [1999] SASC 418.
In R v Powell[5] the defendant was convicted of 52 counts of falsifying accounts over a two year period, involving a sum of about $670,000. The sentencing judge said that he would have imposed a term of imprisonment of eight years but for the defendant’s guilty pleas, remorse and cooperation. His Honour imposed a head sentence of five years six months and a non-parole period of two years. The Court of Criminal Appeal allowed a Crown appeal and increased the head sentence to seven years and the non-parole period to three years six months.
[5] R v Powell (2001) 81 SASR 9.
In Heaft v Police[6] the defendant pleaded guilty to 64 counts of falsification of accounts. The offending took place over a five year period and involved the defendant obtaining about $351,000 from his former employer. From a starting point of eight years, which the sentencing magistrate reduced on account of the defendant’s plea and time spent in custody, the sentencing magistrate imposed a head sentence of five years and 10 months imprisonment with a non-parole period of three years. On appeal to the Supreme Court, Besanko J rejected the contention that the head sentence was manifestly excessive and dismissed the appeal.
[6] Heaft v Police (2004) 87 SASR 496.
In Police v Curtis[7] the defendant pleaded guilty to 108 counts of falsification of his employer’s accounts. The offending occurred over a four year period and involved a total of around $591,000. The sentencing magistrate imposed a head sentence of four years six months imprisonment with a non-parole of 20 months. Gray J dismissed the Crown appeal against sentence.
[7] Police v Curtis (2004) 145 A Crim R 587.
In R v Jorquera[8] the defendant pleaded guilty to two counts of theft. The offending took place over a 17 month period and involved the defendant stealing 60 motor vehicle engines and 78 motor vehicle transmissions from General Motors Holden. He did so while working as a courier van driver who regularly attended General Motors Holden’s premises. The sentencing judge imposed a single head sentence of six years imprisonment with a non-parole period of three years. The Court of Criminal Appeal dismissed the defendant’s appeal alleging manifest excess in the penalty imposed.
[8] R v Jorquera [2013] SASCFC 145.
In R v McPhee[9] the defendant was convicted of 181 counts of theft, involving the misappropriation of $1.949 million over which she had control by virtue of her position as a court appointed trustee. The sentencing judge imposed a head sentence of 16 years imprisonment, reduced to 13 years on account of the defendant’s pleas of guilty, with a non-parole period of 10 years. The Court of Criminal Appeal resentenced the defendant to 13 years imprisonment, reducing it to nine years and two months imprisonment on account of her guilty pleas. The Court fixed a non-parole period of six years.
[9] R v McPhee [2014] SASCFC 107.
I am conscious of the limited assistance to be obtained from comparison with other cases. However, bearing in mind both my general survey of the authorities and all of the circumstances of the present case, the sentence imposed by the sentencing judge was manifestly excessive. While the focus must remain upon the ultimate sentence, it seems to me that the notional head sentences with which the sentencing judge commenced were both too high. It must be acknowledged that the time frames, number of counts and overall sums stolen were significant. However, as the appellant contended, they were less significant than in those cases that have attracted head sentences of the order imposed in this case. There have been several instances of objectively more serious offending attracting lower head sentences. In the ultimate analysis, I am satisfied that the sentence imposed by the sentencing judge is manifestly excessive.
In so concluding, I have not overlooked the matters emphasised by the sentencing judge, and in particular the abuses of trust involved in the offending, the sentencing judge’s rejection of the appellant’s explanation for the offending, the absence of any restitution, and the limited level of remorse shown by the appellant. Despite these important considerations, and the concerns they raise in terms of the appellant’s prospects of rehabilitation, I am nevertheless satisfied that a lesser sentence was appropriate and required.
Resentencing
I would use s 18A of the Criminal Law (Sentencing) Act 1988 (SA) to fix one sentence for each group of offences.
The Northern Plumbing offending involved a gross breach of trust and was committed over a period of about 17 months. While the amount of money stolen was of great significance to the business, it was not as high as is often seen in offences of this nature. For that offending I would start with a notional head sentence of four years and six months imprisonment.
Two matters are particularly relevant to the extent of the reduction for the pleas of guilty in relation to that offending. The first is that, although she had the opportunity, the appellant made no attempt to make any restitution. The second is that she gave evidence before the sentencing judge in an attempt to shift some of the blame for her offending to her former partner. The sentencing judge rejected her evidence. That is a matter which is to be weighed when assessing the appropriate reduction to reflect pleas of guilty.[10] Having regard to these matters I would fix a head sentence of four years imprisonment for the Northern Plumbing offending.
[10] R v Varano (1989) 150 LSJS 140 at 141.
The second group of offences were committed against the appellant’s mother. Again they involved a breach of trust, although I would not put it in the same category as the breach involved in defrauding a trusting employer. The total stolen through these offences was about $67,000. Furthermore, for the reasons expressed above, the credit due for the pleas of guilty is eroded to some extent by the false evidence she gave in an attempt to mitigate the crimes. In addition, these offences were committed against the background of the appellant having already defrauded Northern Plumbing. That is a significant aggravating feature. Again, no restitution was made and indeed no apology had been offered by the appellant to her mother even as late as the date of the disputed facts hearing. From a starting point of two years and three months I would deduct three months for the pleas of guilty and fix a sentence of two years imprisonment.
In relation to the breach of bail offences, I would convict the appellant without penalty.
Since the two groups of offences amounted to two separate incursions into the criminal law I would accumulate the two sentences to give a total of six years imprisonment. I do not consider that there is any need to effect a reduction on account of totality.
Against the total head sentence of six years I would set a non-parole period of three years and eight months. Although the appellant was only 22 years of age when the offending commenced, it continued over a number of years and, as seen, was followed by further offending against the appellant’s mother. In these circumstances little weight can be given to the fact that the appellant had no prior convictions at the time when she started offending. Further, as I have mentioned, there is reason for caution about the appellant’s rehabilitation.
Given the seriousness of the offending, the significance of general deterrence in offending such as the present and the reservations I have about the appellant’s contrition (despite her pleas) and rehabilitation, I am not satisfied that there is good reason to suspend the above sentence. Nor, for essentially the same reasons, am I satisfied that it would be appropriate to make a home detention order.
The sentence should date from the time the appellant was taken into custody, being 28 November 2016.
Orders
I would allow the appeal. I would resentence the appellant to four years imprisonment for the first group of offences and two years imprisonment for the second group, to be served consecutively, giving a head sentence of six years imprisonment. I would fix a non-parole period of three years and eight months imprisonment. I would backdate the head sentence and non-parole period to commence on 28 November 2016.