R v Lean

[2017] SASCFC 101

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v LEAN

[2017] SASCFC 101

Judgment of The Court of Criminal Appeal

(The Honourable Justice Stanley, The Honourable Justice Nicholson and The Honourable Justice Hinton)

14 August 2017

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - PARITY BETWEEN CO-OFFENDERS AND OTHER RELATED OFFENDERS

Crown appeal against sentence for 47 counts of deception and one count of attempted deception, for which the respondent was sentenced to imprisonment for six years and eight months with a non-parole period of three years.  The sentence was suspended and the respondent ordered to serve the sentence on home detention.  The co-offender, who was convicted of all but the first count of deception, was not granted home detention.

On appeal the Director of Public Prosecutions contends that the sentence imposed was manifestly inadequate; that the gravity of the offending rendered this case unsuitable for an order that the term of imprisonment be served on home detention.

Held: Appeal allowed.  The sentence was so inadequate as to warrant intervention, even in light of the principles governing Crown appeals against sentence.  All circumstances considered, including acceptance of the fact that imprisonment of the respondent is not required to protect the community, a punitive response greater than that provided for by the home detention order imposed was required to adequately meet the purposes of punishment.  The respondent is to be resentenced.

Criminal Law Consolidation Act 1935 (SA) s 139, s 270A; Criminal Law (Sentencing) Act 1988 (SA) s 10(1)(n), s 18A, s 33BB, s 33BC, s 38, referred to.
Walsh v Department of Social Security (1996) 67 SASR 143, discussed.
R v McIntosh [2017] SASCFC 87; House v The King (1936) 55 CLR 499; R v Osenkowski (1982) 30 SASR 212; Dinsdale v The Queen (2000) 202 CLR 321; R v Morse (1979) 23 SASR 98; R v Howatt [2017] SASCFC 41; Barbaro v The Queen (2014) 253 CLR 58; Hili v The Queen (2010) 242 CLR 520; R v Davies (1996) 88 A Crim R 226; R v Dell; R v Dell (2016) 126 SASR 571; R v Buckman (1988) 47 SASR 303; R v Hosking [2017] SASCFC 50; R v Filipponi (2016) 126 SASR 464; The Queen v Vasin; The Queen v Scherf (1985) 39 SASR 45; R v Way (2004) 60 NSWLR 168; Green v The Queen (2011) 244 CLR 462; Lowe v The Queen (1984) 154 CLR 606; R v Wirth (1976) 14 SASR 291; R v Constant (2016) 126 SASR 1; R v M, G [2016] SASCFC 116, considered.

R v LEAN
[2017] SASCFC 101

Court of Criminal Appeal:       Stanley, Nicholson and Hinton JJ

STANLEY J:

1. I would grant permission to appeal.  I would allow the appeal.  I agree with the reasons of Hinton J.  I would hear submissions on re-sentencing. 

   NICHOLSON J:

2. I agree with the orders proposed by Hinton J and with his Honour’s reasons.

   HINTON J:

   Introduction

3. The respondent, Tabitha Lean, was found guilty by a jury of 47 counts of deception committed contrary to s 139 of the Criminal Law Consolidation Act 1935 (SA), and one count of attempted deception committed contrary to ss 139 and 270A of that same Act (the deception offences). For those offences she was sentenced to imprisonment for six years and eight months with a non-parole period of three years. The sentencing Judge declined to suspend the sentence under s 38 of the Criminal Law (Sentencing) Act 1988 (SA) (Sentencing Act) but ordered that the sentence be suspended under Part 3 Division 3A of that Act and that the respondent serve the sentence imposed on home detention. The Director of Public Prosecutions now appeals against the sentence imposed on the grounds that it is manifestly inadequate. More particularly the Director contends that the gravity of the offending was such as to render this case unsuitable for an order that the sentence of imprisonment be served on home detention, so unsuitable, the Director contends, that for this Court not to interfere would undermine public confidence in the administration of justice.

   Crown appeals against sentence

4. The principles governing a Crown appeal against sentence have long been settled by the High Court and are well known. I recently restated those principles in R v McIntosh.[1] It is unnecessary to do so once again. Suffice it to say that before this Court will grant the Director permission to appeal error in the House v The King[2] sense must be demonstrated and, in addition, this Court must be persuaded that strong reasons of public policy exist which demand that permission to appeal be granted notwithstanding the public interest in ensuring that the respondent is not twice vexed by the repeated exercise of the coercive power of the State. Strong reasons are required because of the premium that the common law places upon a person’s freedom from interference by the State. Generally, strong reasons will exist where it is necessary to intervene “to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience.”[3]

   [1] [2017] SASCFC 87.

   [2] (1936) 55 CLR 499 at 504-505 (Dixon, Evatt and McTiernan JJ).

   [3]    R v Osenkowski (1982) 30 SASR 212 at 212-213 (King CJ).

5. In addition, the cautionary advice of King CJ in R v Osenkowski should not be overlooked. King CJ said:[4]

   It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform.

   [4]   R v Osenkowski (1982) 30 SASR 212 at 212-213.

   The offending, its gravity and consequences

6. The respondent was jointly charged with her husband, Simon Peisley, with all the deception offences. The offending occurred in the context of their employment with SA Health in the Aboriginal Health Service. The sentencing Judge described the offending as follows:

   You both engaged in concocting an account that you were both the victims of an ongoing campaign of threats and harassment. In fact it was the two of you who fabricated approximately 80 threatening letters and items which you sent to your home address, to colleagues at SA Health, to health professionals, whom you had engaged; to your lawyers; and, most troubling, to your children’s schools.

7. The letters were profane, frequently racist, and invariably threatened the respondent or members of her family with violence or death. On occasion items of children’s clothing, made to look as if they were blood-stained, accompanied letters sent to the respondent’s home or to others. The objective of the letters was to have the respondent step aside from her position in the Aboriginal Health Service.

8. The respondent and her husband pretended that due to the threats they could not continue in their employment. This was accepted and resulted in SA Health providing the respondent, her husband and their children with alternate accommodation, holidays, medical treatment and income maintenance payments in accordance with the workers compensation legislation. At the time of their arrest the respondent and her husband were in the process of negotiating a lump sum compensation payment. The sentencing Judge identified the benefits received by the respondent and her husband as follows:

   Group 1 is the single count of Deception, namely count 1, for which you, Mr Peisley, were acquitted. It involves the flights and accommodation to the Gold Coast at a cost to SA Health of just over $6,000.

   Group 2, involves 3 counts of deception, namely counts 2, 3, and 4 relating to accommodation in Melbourne in June of 2012, and accommodation in North Adelaide between 18 June 2012 and 3 April 2014 at a total cost of $106,191.

   Group 3, involves three counts of Deception, namely counts 5, 6 and 7. They are for the private hospital expenses for each of you between 2012 and 16 August 2014 totalling $57,997.06.

   Group 4, covers the 40 counts of Deception resulting in the receipt of fortnightly workers compensation payments, a benefit of approximately $109,440.

   Finally, Group 5 is the single count of Attempted Deception designed to obtain that lump sum of $580,000 [in workers compensation], which ultimately was not paid.

9. The respondent was found guilty of all forty-eight deception offences. Her husband however was acquitted of count one and convicted of the balance. The Judge explained the jury’s decision to acquit Mr Peisley on count one as follows:

   To explain why you Mr Peisley were acquitted of count 1, the jury heard of an event at your home when Ms Lean had attended with your daughter.  Threats were sprayed in tomato sauce in the house.  You Ms Lean were found out by the cleaner of the house.  It was inevitable that the jury would find that you alone did that. In consequence of that and other matters, the jury were not satisfied at that time that you Mr Peisley were part of a joint criminal enterprise.  That tomato sauce incident should have brought the deceptive acts to an end. The difficulty for the police was that you, Ms Lean were held in such high esteem that no-one, not even the police, could consider you to be other than the victim.  Of course, it does you further discredit that you Ms Lean purported to criticise the police for their failure to identify the authors of the threats, knowing full well that it was you.

10. The gravity of the respondent’s and her husband’s offending is not limited to their preparedness and success in deceiving their employer. The breadth and depth of the deception they practised was far greater. This was apparent from the victim impact statements and the community impact statement received. The Judge summarised this material as follows:

    I received victim impact statements from former SA Health colleagues who suffered emotional, personal and professional adverse effects. Other co-workers were subjected to suspicion and scrutiny from the police. One of your many friends and colleagues adversely affected was Ms Waters. In her victim impact statement she explained that you had led her to believe that all of the alleged threats against you and your family and herself were true. She felt that your employer had let you down. She felt ‘sick and shaky’ as she described it, when she received three threats at her home. She felt a sense of betrayal. But notwithstanding all of that, she still feels sorry for you both and your children. Of most significance is that she, like everybody else, can’t understand what led to your offending.

    The Commissioner for Victim’s Rights provided a community victim impact statement pursuant to s 7B(2) of the Sentencing Act. That statement describes the significant impact upon those members of the Aboriginal Health Service; those who worked directly with you; the Aboriginal community as a whole, as well as the broader community. He explained that members of the staff at the Health Service had their reputations shattered as a consequence of these crimes. He understood there had been a notable decline in the number of people accessing those services since your offending became public. The staff generally are worried that your conduct has reinforced a misconception that Aboriginal people can’t be trusted.

    The Commissioner noted that you in particular, Ms Lean, had at all times, been highly respected and you were and are still regarded as a strong, intelligent and active as a member of the Aboriginal community.

    The staff still find it impossible to believe that you could have committed these offences. They feel sadness for you both, and also your children, despite the fact that they endured suspicion and were subject to accusations. Many of the staff questioned whether they should continue working in the Health Service. Other victims included the staff at your children’s schools. One of the schools made changes to security, so as to provide additional support to you.

11. The prosecution case at trial did not allege that the deception offences were committed as a consequence of a pre-arranged plan. Rather the genesis of the offending, led by the respondent, could be located in difficulties the respondent was confronting in the workplace. The Judge explained:

    In 2011, while you were both working for SA Health in Aboriginal Health, the service underwent a restructure. You Ms Lean were obliged to reapply for your position as a director. Objectively you were highly regarded; had an excellent work ethic, and inevitably, you would have been reappointed. Perhaps you had some doubts as you were suffering from a lack of confidence, and the effects of some undiagnosed mental health issues at the time. You reported to your superiors that others had questioned your aboriginality. I readily accept that that did occur. You were hurt by that suggestion.

    In July 2011 you Ms Lean, reported to your superiors that you had received a threatening phone call. Your employer took steps to assist you, including providing temporary accommodation. It enabled you to work from a different location. By October 2011, you finally heard that you were successful in being reappointed to your job. Significantly, the alleged threats ceased at that time, that is to say immediately after you received that news.

    I accept the hypothesis of the psychologist, Mr Broomhall, that at that stage you actually did experience stress, leading you to experiencing difficulties at work. This provides some insight into your conduct at this time.

    In February 2012 there was an announcement of yet another external review of the service. On 6 February 2012 you reported receiving an alleged threatening phone call, and complained that your house had been ‘egged’. Both were false allegations. Your employer again took steps to protect you, by moving you to serviced apartments. They provided a holiday for your family to the Gold Coast. Consistent with the jury verdict on count 1, you alone Ms Lean acted in a deceptive manner at that time. I regard however that offence as less significant than those which were to follow. It was an event of the same type as that in July 2011, when you were under stress.

12. However:

    By the time of count 2 however there was a change. You both deliberately embarked on a course of deception.

    You both had left work, never to return. After a short time you both received worker’s compensation payments. By June 2012 you were both committed to continue the deceptive conduct. There was no going back to work. You were jointly engaged in the deception that others were threatening you. I will not speculate as to your motives but it may be that you, Ms Lean, thought there would be further restructuring, and you would lose the job that you cared about. You may have thought that you had some entitlement to be compensated. Inevitably the bizarre nature of the threats pointed to one of you being the author, of the threats. Eventually you were caught by a covert police operation. The police placed UV markings on stationary [sic], which you used in a threatening letter in March 2014. You both had continued this deception for about 21 months from June of 2012. I will not detail your conduct in respect of all of the counts. It suffices to say that your conduct was outrageous over such a long period.

13. As mentioned, the perpetration of the deception included the making of threats to kill or harm the respondent’s children. The children did not know that the threats were false and were not shielded from them. They believed that they and their parents were at risk and that they moved into temporary accommodation for their protection. They watched as their parents were hospitalised. It is unsurprising then that, prior to the detection of the deception, the children required the assistance of a psychologist, Mr Jason Encel, to cope with stress, anxiety and fear. Once the respondent and her husband were arrested, the children required assistance from the same psychologist to cope with the change in circumstances as they moved home, and then for anxiety linked to the protracted legal proceedings and the prospect of their parents both being imprisoned.

    The sentencing Judge’s reasons

14. The Judge outlined the circumstances of the offending and the consequences. He noted that the respondent and her husband continued to profess their innocence. He identified the benefits they obtained and attempted to obtain as a consequence of their offending. He concluded that what motivated the respondent and her husband was not immediately apparent. In this regard the Judge considered the perpetration of the deception in order to obtain the benefits received and the prospect of a lump sum compensation payment at the cost, in the respondent’s case, of a senior position in the public service, irrational.  He said “[i]n effect, practically speaking, there is little or no financial gain of any substance. All you managed to do is cause damage to yourselves, and your family and to a large number of other people”.

15. The Judge found that the respondent and her husband, knowing that no-one would in fact be physically harmed, did not intend to cause harm to either their children or their colleagues. However they “overlooked completely the emotional impact upon all recipients of the threats”.

16. The Judge summarised the personal circumstances of the respondent as follows:

    I have been greatly assisted by the voluminous documents tendered during submissions. Those documents include medical reports, testimonials, and other background material, together with the detailed submissions of your counsel, Mr Allen. You are now aged 39. As I have already noted, you come to the court with an unblemished record. You had a very difficult start to life. You lost your mother in a motor vehicle accident when you were aged just one. You spent the next three years in very difficult circumstances with your grandparents, before eventually being returned to your father. It was not until you were an adult that you learnt that your birth mother was aboriginal. For years you had suffered self-doubt which explains the adverse reaction to some colleagues doubting your aboriginality in 2011.

    You were an above average student who completed year 12. You eventually gained entry to and completed a Bachelor of Education degree at Uni SA. You worked for a member of parliament for about 10 years before successfully obtaining a job as an Aboriginal Health Families Coordinator at SA Health.  You were highly regarded and soon promoted to a director’s position prior to the events in 2011 and 2012. You did suffer from post-natal depression following the birth of your oldest child. You told Mr Broomhall and I accept that you suffered from depression at work. This may have been an ongoing problem, or alternatively caused by marital difficulties you faced since about 2011.

    Mr Broomhall’s diagnosis is that you now suffer from a major depressive disorder. You also suffer from a number of physical ailments including Type 2 diabetes, asthma and high blood pressure. He concluded that your mental state was the consequence of long-term traits of disordered personality functioning. I accept his assessment that you present a low to no risk of similar offending despite having made no admissions because you will not find yourself in a similar position of trust. I am cautiously optimistic about your prospects, despite the concern that you refuse to take responsibility for your actions.

    I will just very briefly mention some of the 14 testimonials included in those papers. The authors come from a wide variety of walks of life. All of them have been shocked by your offending which they regard as entirely out of character for the person they have known for many years. They vary from the Narunga elder Kevin O’Loughlin, former State and Commonwealth employees, extended family members, as well as your father, colleagues and friends. All of them regard you as community minded, a caring and loving mother to your three children and a person who generally and genuinely pursued improvements to the health of Aboriginal members of society, and as I say with an acknowledged enormous work ethic. You and Mr Peisley had acted as foster parents for about 5 years and provided emergency housing for troubled Aboriginal children. 

1. The Judge then set out Mr Peisley’s personal circumstances before noting the “delicately poorly state” then experienced by the three children of the marriage because of the risk that their parents would both go to prison as reported by Mr Encel. The Judge observed:

   … Mr Encel described you Ms Lean as ‘the epicentre of their emotional universe’. He finds that it’s in their best interests, particularly the youngest child, for you not to go to prison. This of course, raises the vexed question that whatever harm had been done to them was a consequence of the conduct of you.

   It’s clear from the content of that report that an immediate custodial sentence to you both is likely to have a profound negative impact upon their emotional wellbeing.

2. The Judge turned to impose sentence. He noted that there was no applicable tariff, that those who committed dishonesty offences were frequently of good character and that being of good character often facilitates the offending, and that the financial loss occasioned and breach of trust committed had to be reflected in the sentence, as did the harm caused to other victims. Prompted by the victim’s application for compensation under s 53 of the Sentencing Act, the Judge concluded that the respondent and Mr Peisley had lost everything as a consequence of their offending and that restitution was beyond their means.  He also considered it pertinent that compliance with any such order would, in any event, unduly prejudice the children. 

3. Utilising s 18A of the Sentencing Act the Judge imposed notional sentences for each of the five groups of offences that he identified earlier in his remarks and to which reference is made above.[5] With respect to Mr Peisley the Judge said:

   Mr Peisley, you were acquitted of the offences in group one. As to the offences in group 2, I would have made the sentences fully concurrent with each other. I would have fixed a notional sentence of imprisonment for 18 months for that group. The offending in group 3, the respective hospital admissions, were quite serious. I would also fix a notional sentence of 18 months for each of them but make each of them fully concurrent with the others in group 3.  As to the 40 workers compensation payments in group 4, I would have imposed a notional sentence of 3 years on each, and would have made each of the 40 counts fully concurrent with the others in that group.

   As to the final group 5, I would have imposed a notional sentence of 2 years imprisonment. 

   I would have made the notional sentences for groups 2 and 3 partly concurrent with each other, namely a notional sentence of 2 years and 6 months imprisonment.  I would have made sentencing for groups 4 and 5 partially concurrent, with a notional sentence of four years imprisonment.  That notional sentence would be cumulative upon the notional sentence I have noted for groups 2 and 3. That produces a total notional sentence of 6 years and 6 months imprisonment, in your case.

   That sentence is consistent with the thrust of the authorities to which I have referred.  There is no basis for a further reduction. Accordingly pursuant to s 18A of the Act, I fix a head sentence of imprisonment for six years and six months. 

   [5] At [8].

4. The Judge imposed a non-parole period of three years before declining to suspend the sentence. Significantly for the purposes of this appeal the Judge then recorded:

   You advised that you did not wish to serve the sentence on Home Detention. Mr Barklay explained that you had made the decision to improve Ms Lean’s position. I take that submission to mean that you appreciated that it was in the best interests of your children that, if either of you would be placed on Home Detention it ought be Ms Lean. That sentence of 6 years and 6 months and the non-parole period of 3 years will therefore commence from today.

5. The Judge then turned to sentence the respondent.

6. Before setting out the sentence some mention should be made of the content of the psychological report prepared in relation to the respondent by Mr Luke Broomhall, a forensic psychologist.

7. As at the date of Mr Broomhall’s assessment, 15 December 2016, the respondent was in receipt of a disability allowance. She reported feeling very depressed, anxious and not coping well with being out of work. Mr Broomhall detected no thought or perceptual disturbance afflicting the respondent and commented that her cognition was “grossly intact”. He considered that the respondent met the diagnostic criteria for Major Depressive Disorder, severe, recurrent, and a Generalised Anxiety Disorder. Mr Broomhall also reported:

   Further, it was my opinion that Ms Lean presented with long-term stable and broad traits of disordered personality functioning. There was evidence that Ms Lean experienced emotional difficulties in her upbringing, with the death of her mother at a young age, relationship dysfunction caused by the alcoholism of her father, and a somewhat dysfunctional relationship with her step-mother. Ms Lean was aware of her father being very grateful to Michelle about “…taking us on”, and also aware of Michelle’s jealousy of her relationship with her father and feeling caught in the middle of the relationship between Michelle and her father. These early developmental and pivotal relationship experiences, in my opinion, created poor self-identity, low emotional coping tolerances, and formed the antecedent factors for Ms Lean’s adult tendency to form dependency within key work and personal relationships. Evidence of this is seen in Ms Lean’s difficulties with her employer, Ms Bedford, but unwillingness to leave an unsatisfactory working relationship. Evidence also was seen in Ms Lean’s relationship with her husband, Simon, whom she believed had been unfaithful, promiscuous and disinhibited sexually with others. Despite the issues and difficulties in the relationship, Ms Lean maintained a dependent relationship upon Simon and was unwilling to leave him.

   I formed the opinion throughout the assessment that Ms Lean met the diagnostic criteria for Dependent Personality Disorder. This is marked by a pervasive and excessive need to be taken care of that leads to submissive and clinging behaviour which begins in early adulthood and presents in a variety of contexts, such as outlined above. Others include that Ms Lean has difficulty expressing disagreement in key relationships, will go to excessive lengths to obtain nurturance and support from others, feels uncomfortable or helpless when alone and is unrealistically preoccupied with fears of being left to take care of herself.

   (citation omitted.)

8. In an attempt to assist the Court by providing some insight into the respondent’s offending conduct Mr Broomhall opined:

   … It seemed plausible, in my view, that Ms Lean, having won the position in Aboriginal Health and making changes to the structure and operations of the department, angered both her previous Director and other staff members. Given the nature of her reported role, the political climate of SA Health, and the propensity of some individuals to act aggressively in the face of change, it seemed plausible, in my view, that Ms Lean received negative criticism and feedback from both her Director and others regarding her role. That her previous Director questioned her Aboriginality would have been particularly upsetting to Ms Lean.

   In my assessment of Ms Lean I found it unlikely that she would undertake the behaviours leading to the current charges without some form of subjective view of significant precipitating factors. She did not present with prominent antisocial traits and had a positive work ethic. It was hypothesised that Ms Lean, having undertaken the role and receiving both criticism and negative feedback, may have actually received genuine threats of some description. It also seemed plausible that when asking for assistance around these threats, that Ms Lean perceived a lack of support from the Department and found their responses to be inadequate and not what she “deserved”, given the amount of “hard work” that she perceived that she had put in to the organisation. The frustration of being in this situation would have driven both anxiety and depressive symptoms, and Ms Lean would have experienced significant distress in being in such a situation.

   It was hypothesised that from this point Ms Lean’s dependent personality characteristics were influential. It seemed plausible, in my view, that with poor emotional regulation, a lack of adequate social support, dependence upon her employer and partner, that Ms Lean embellished and fabricated threats against the family in order to make her situation seem more plausible to her employer. Such action, in my view, fulfilled a need in Ms Lean to be acknowledged for her hard work and the unfairness of her distress, without leaving or confronting an employment situation which she found unsatisfactory. This, in my view, demonstrates her unwillingness to confront her employer, her lack of faith in her partner and relationship, her unwillingness to leave a secure job and cope on her own, and may also have quelled some of the anger and frustration she felt towards her employer for not supporting her. It was my opinion that Ms Lean’s offending behaviour was a dysfunctional but long-term stable set of responses to an experience of emotional distress within her vocational context.

9. In the course of making submissions in mitigation counsel for the respondent took the Judge to Mr Broomhall’s report and referred him in particular to Mr Broomhall’s hypothesis.

10. The Judge considered that there was no basis upon which he could distinguish between the respondent and Mr Peisley as to their respective culpability save in relation to count one. For count one the Judge fixed a notional sentence of six months imprisonment to be served partially concurrently with the sentence imposed for the offending subject of offence groups two and three, for which he imposed the same sentence as that imposed upon Mr Peisley. The Judge imposed the same sentence upon the respondent as he did Mr Peisley in relation to offence groups four and five. The result was a head sentence of six years and eight months imprisonment. As mentioned, the Judge fixed a non-parole period of three years. The Judge had been urged to suspend the sentence, particularly having regard to the respondent’s mental health and the hardship her imprisonment would cause to her children. The Judge concluded that good reason to suspend the sentence did not exist. The offending was too serious. Further, the Judge did not accept that the harm to the children would justify suspension. He said:

    … Mr Allen submitted that I should find good reason to suspend that sentence. He referred to the same factors, the state of your mental health at the time and the needs of your children especially when both parents face immediate custodial sentences. They are very important factors. I refer to the cases of R v Tomlinson, [2007] SASC 222; and R v Marika, [2010] SASCFC 31. I have reflected very carefully upon that submission. Your children can of course, be cared for by others including your father if need be. That would not be the best solution particularly in light of what has gone on in the past. I repeat that I accept Mr Encel’s opinion that notwithstanding the harm done to the children, albeit unintentionally, it is in their best interests to be cared for by you. In my opinion however your offending is just too serious in those circumstances for the sentence to be suspended under s 38 of the Sentencing Act. I do not accept that there is sufficient good reason to suspend. I do not accept that obvious harm to your children themselves would justify the suspension.

11. The Judge then turned to consider the question of whether the sentence should be served on home detention. He said:

    Parliament has however, as counsel submitted, provided the court with another option which avoids the adverse effects upon your children. It has enabled the court to order that you serve the sentence that I have imposed upon home detention under s 33BB of the Sentencing Act.  It is important that you understand that you are sentenced to a custodial sentence. This section makes provision as to where you ought to serve this sentence. It is different to a suspended sentence.

    I have to consider where you are to serve the sentence.  You did participate in the Home Detention order report.  The author of the report recorded, as is common sense, that the residence is suitable for Home Detention; and equally that you are a suitable candidate for such an order.  The Act requires me, inter alia, to give paramount consideration to the safety of the community when deciding whether to make such an order.  Although your offending has significantly affected a number of people I do not consider that you pose any threat to the safety of the community.  Indeed I accept that you are the very type of prisoner whom Parliament had in mind when it enacted the Home Detention provisions. The interests of your children do not come within the criteria of the Act. However it is clearly in their best interest to have you care for them. They were unintended victims as I have explained.

    I have, of course, taken into account the reasons of the Court of Criminal Appeal when determining the case of R v Filipponi, in particular the concern expressed by that court about serious offending. That case involved serious drug trafficking which had the risk of causing danger to the community.

    I have considered all of the indicia in the Act, as it presently stands. Balancing all of these matters and weighing the factual circumstances of your offending and indeed your personal circumstances, I am satisfied that it is not only in your best interests, but that of your children and also the community more generally, that I should order the sentence that I have imposed be served on Home Detention.  The effect of this is that you have received a sentence of imprisonment, but that pursuant to that order you will serve that sentence on Home Detention.

    The submissions made in this Court

12. The Director did not take issue with the head sentence or non-parole period imposed upon the respondent. His complaint was limited to the suspension of that sentence and the related making of the home detention order under Part 3 Division 3A of the Sentencing Act. Counsel for the Director submitted that such outcome was manifestly inadequate on two bases. First, it did not reflect the gravity of the respondent’s conduct. Second, having regard to the sentence imposed upon the co-accused, the only justification for making the home detention order lay in the hardship that would be caused the respondent’s children if she was imprisoned. That hardship, counsel for the Director contended, was not exceptional such as to merit home detention.

13. In purporting to make good the first contention counsel emphasised the nature of the threats and their effect in particular upon the respondent’s children, work colleagues, and the schools the children attended. The deception drew in almost everyone with whom the respondent, her husband and children dealt on a daily basis and necessarily did so, so as to lend weight and credibility to the threats contained in the letters. In those circumstances, counsel challenged the Judge’s characterisation of the respondent’s colleagues, children and others affected as “collateral victims”. The perpetration of the deception required their victimisation.

14. Counsel took the Court to the threats made. As mentioned, they contain hate-filled, often racially-motivated, threats to harm or kill the respondent or members of her family. They were intended to and did engender great fear. Despite steps being taken to shield the respondent’s children from the threats, all three children required the assistance of a psychologist to deal with the predicament. The harm caused could not have gone unnoticed by the respondent and her husband. Within the respondent’s workplace the threats cast suspicion upon colleagues. That too could not have gone unnoticed. Neither could the steps taken by schools to protect the children have been overlooked.

15. Counsel pointed to the lengthy period throughout which the deception was perpetrated, the content of the victim and community impact statements, that the deception only came to an end upon being detected, and that it entailed a gross breach of trust. In the circumstances, she submitted, general deterrence was to be afforded paramountcy. Further, counsel reminded the Court that the respondent maintained her innocence and was neither contrite nor remorseful.

16. With respect to the second argument, it was contended that the Judge erred in two respects; first, it was wrong for the respondent to benefit from the hardship her children would experience by avoiding prison when their “delicately poorly state” was the product of her conduct. Here counsel returned to the threats addressed to the children. Those threats included references to the children having their throats slit and having their baby sister being set on fire or burnt alive. Counsel also referred to the sending of packages to the children’s schools addressed to the children in which there was clothing made to appear as if it was soaked in blood. The children were used as a tool to further the deception. That the respondent and her husband would expose their children to the harm sustained aggravated their conduct. In such circumstances, the hardship sustained by the children could not be used to alter the otherwise appropriate sentence.

17. Further, in the light of the threats and the consequences for the children, which must have been apparent to the respondent and Mr Peisley, counsel questioned the respondent’s ability to care for her children. In this regard, she submitted that the opinions expressed by Mr Encel appeared to have been advanced without the benefit of the detail of the offending or an appreciation of the same.

18. In any event, counsel contended, the hardship that the children would experience as a consequence of the imprisonment of both parents was not exceptional such that the respondent should not be imprisoned. The seriousness of the offending, its protracted nature, the breach of trust perpetrated, the harm caused, the lack of contrition and remorse, the absence of restitution and the demands of personal and general deterrence warranted imprisonment and outweighed the community’s interest in minimising the consequential hardship that the children would suffer.

19. Second, the Judge accepted that there was no difference in the culpability of the respondent and her husband, save that the respondent committed count one alone. In these circumstances, for the respondent to receive a different, less onerous penalty, suggested error. This latter submission dovetailed with a third argument to the effect that the Judge wrongly acquiesced in Mr Peisley sacrificing himself to better the respondent’s chances of obtaining a home detention order. Doing so, it was said, had the consequence that the Judge impermissibly fettered the sentencing discretion. In this regard counsel pointed to the Judge’s observation of the profound negative impact upon the respondent’s children that the incarceration of their parents would have and to the following statement then made by the sentencing Judge:

    One of the matters I will need to consider is whether one of you ought not receive an immediate custodial sentence because of that profound negative impact.

20. This statement and the different penalties imposed upon the respondent and her husband were indicative of an error of principle. There is no legal principle, counsel contended, that required a sentencing court to consider whether one parent should be spared punishment so that dependents may be cared for. To sentence on such basis is to offend the principle of equality.

21. In the course of argument counsel accepted that if this Court considered it appropriate to allow the appeal the appropriate order was to set aside the sentence imposed and either sentence the respondent afresh, or, remit the matter for the same purpose. That way allowance could be made in re-sentencing for the period served on home detention to date.

1. Counsel for the respondent commenced his submissions by referring the Court to R v Osenkowski and the excerpt from the judgment of King CJ to which reference has been made above.[6] Counsel submitted that this was not a rare and exceptional case that warranted a grant of permission to appeal and was, in any event, a case in which it might be concluded that the sentencing Judge had reasonably extended mercy to the respondent. In support of the former proposition he referred to the risk of the respondent re-offending, accepted by the Judge as being low, to the evidence of her suffering an underlying condition, to the hardship that would be occasioned the respondent’s children if she were imprisoned, and to the importance to the community of the welfare of children and the maintenance of the family unit. Further, counsel submitted that the Judge’s acceptance that the respondent did not intend to harm her children was not wrong.

   [6]   R v Osenkowski (1982) 30 SASR 212 at 212-213.

2. Counsel for the respondent also submitted that where the sentencing Judge referred to the offending as being inexplicable, he should be understood as meaning that it was not understandable. That is, bearing in mind the position enjoyed by the respondent within SA Health and her career prospects, that she would engage in the conduct subject of the offences for the sake, ultimately, of a workers compensation payout with the consequent loss of her career, was not understandable. Accepting this, however, did not alter the fact that the respondent had at no time offered any explanation for her offending.

3. With respect to the extension of mercy, counsel for the respondent relied upon the hardship that would be occasioned to the respondent’s children as referred to in Mr Encel’s report if the respondent was imprisoned in addition to her husband.  He drew the Court’s attention to Walsh v Department of Social Security as authority for the proposition that where the parents of young children are both facing a custodial sentence, the sentence imposed on one may be ameliorated in order that the welfare of the children be adequately protected.[7]

   [7] (1996) 67 SASR 143.

   Consideration

4. In Dinsdale v The Queen Gleeson CJ and Hayne J said:[8]

   Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.

   [8] (2000) 202 CLR 321 at [6]; see also, Hili v The Queen (2010) 242 CLR 520 at [59] (French CJ, Gummow, Hayne, Crennan, Kiefel, and Bell JJ).

5. In R v Morse King CJ described in some greater detail the process to be undertaken by this Court where manifest excess was asserted.[9] He said:[10]

   There is no suggestion that the learned sentencing Judge made any error of fact or law or that he failed in any way to take into account the relevant considerations. This Court can interfere only if it is convinced that the sentence was manifestly excessive. To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender. …

   [9] (1979) 23 SASR 98.

   [10]   R v Morse (1979) 23 SASR 98 at 99.

6. No different approach applies where, as in this case, the contention is one of manifest inadequacy.

7. The Director’s submission, starkly put, focuses on retribution – the gravity of the respondent’s conduct is such that she deserves a punitive experience no less than that provided by her immediate imprisonment. It is then said that if the respondent is subjected to anything less than such punitive experience, the sentence imposed will not likely deter others who might be tempted to offend in a manner similar to the respondent. Underpinning the submission is, essentially, the breadth of the deceit and the depth of the harm done to the various victims over the best part of two years.

8. In R v Howatt Doyle J, with whom Vanstone and Parker JJ agreed, conveniently summarised a number of sentencing decisions of this Court involving large scale systematic breaches of trust:[11]

   In R v Davies 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.

   In R v Cavanagh 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. 

   In R v Powell 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.

   In Heaft v Police 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.

   In Police v Curtis 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.

   In R v Jorquera 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.

   In R v McPhee 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.

   (footnotes omitted.)

   [11] [2017] SASCFC 41 at [56]-[62].

9. I appreciate the limited assistance that a comparison of sentences imposed in other cases provides.[12] However, Doyle J’s survey bears out the fact that ordinarily frauds perpetrated over an extended period of time, involving repeated acts of dishonesty,  gross breaches of trust, and causing significant loss, both monetary and human, are punished by sentences of immediate imprisonment. This is so even if the offender is of previous good character because, generally speaking, his or her good character will have facilitated the offending.

   [12]   See Barbaro v The Queen (2014) 253 CLR 58 at [40]-[41] (French CJ, Hayne, Kiefel and Bell JJ); Hili v The Queen (2010) 242 CLR 520 at [48]-[49] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

10. In R v Davies (Davies), a Crown appeal against sentence involving 18 counts of fraudulent conversion perpetrated by an accountant and financial adviser against one of his clients over a lengthy period of time and converting $492,000,[13] Cox J said:[14]

    I have said that, in my opinion, the head sentence in this case [6 years imprisonment] was not outside the learned judge’s sentencing discretion when judged by existing standards for this kind of crime. There is a question whether those standards are adequate. The day after this application was argued we heard an appeal by a defendant against his sentence of seven years imprisonment, with a non-parole period of five years, for 12 breaking offences, committed within a few weeks, which involved goods to the total value of $35,000. The defendant was a man of 37, with a fairly minor record, who had just lost his job through no fault of his own and was understandably in a state of depression. He turned to crime to supplement his very modest income. His appeal was dismissed; indeed, given the large number of offences and the tariff for repeated breaking offences, a longer sentence could probably have been justified. The defendant, like the respondent, only stopped his series of offences because he was caught. People who commit breaking offences are usually uneducated, untalented, with few advantages in life, live in a discouraging environment and are sometimes quite poor. The respondent was comfortably settled in his profession, with an income of $160,000 a year, and he committed 19 substantial thefts (for that is what they really were), to the tune of $500,000 in all, over a period of two and a half years. He was a fairly typical offender for this kind of crime — respected, greedy and unscrupulous. As far as moral blameworthiness is concerned, he compares quite unfavourably with the typical multiple housebreaker. …

    [13]   With $50,000 having been repaid to the victim.

    [14] (1996) 88 A Crim R 226 at 229-230 (Doyle CJ and Bollen J agreeing).

11. Similar may be said of the respondent in this case. She maintains her innocence and thus accepts no responsibility for the conduct of which she has been found guilty, and is not remorseful. Consistent with this she offers no explanation for what she has done. Whilst one may not be able to conclude that she was motivated by greed, she was unscrupulous. The respondent may not have commenced offending with the intent of carrying it on to the extent that she did, but it evolved to become a large and deliberate course of deceit that abused the trust placed in her by her employer, colleagues and family. She made frequent, conscious decisions to continue the deception, and frequent, conscious decisions to expose others to emotional harm including her children.  She too compares “quite unfavourably” to the house breaker referred to by Cox J in Davies.

12. In the wake of the respondent’s continued profession of innocence her counsel did not, understandably, press Mr Broomhall’s hypothesis upon the sentencing Judge and, equally understandably, the Judge did not embrace it. That said, my reading of Mr Broomhall’s report suggests that whilst the Major Depressive Disorder and Generalised Anxiety Disorder are founded in part on mental health incidents occurring during the period of the offending, which the prosecution contends were false and part of the overall deception, the opinion that the respondent has a Dependent Personality Disorder is not so founded. If that is right the possible influence of the Dependent Personality Disorder cannot be discounted. It may be accepted as providing some explanation for the respondent’s offending, but its mitigatory effect is minimal at most in the absence of the respondent embracing the diagnosis and advising the Court how it impacted upon her.

13. I do not accept that the respondent failed to appreciate the harm her offending occasioned others. To perpetrate the fraud it was necessary that others take the threats seriously. To achieve that outcome meant crafting the letters such that they would instil fear in the recipients and others. Further, the respondent and her husband had themselves to act as if they were in fear and, in doing so, cause their children to be fearful. That occasioned the need to obtain professional help for the children, to feign the need for hospitalisation, and to acquiesce in schools taking action to protect the children.

14. I also do not accept that the influence of the respondent’s actions upon her workplace colleagues would have gone unrealised by her. True she knew no-one would be physically harmed, but to succeed in her design everyone with whom her family regularly dealt had to believe the contrary.

15. In R v Dell; R v Dell Doyle J, with whom Kelly and Parker JJ agreed, said:[15]

    The power to order that a defendant serve their term of imprisonment on home detention is intended to provide an alternative to custody within a prison. A home detention order sits in the sentencing hierarchy between a suspended sentence under Pt 5 and a custodial sentence. That is, it is a more onerous punishment than a Pt 5 suspended sentence of imprisonment, but a less onerous punishment than a custodial sentence.

    [15] (2016) 126 SASR 571 at [42].

16. A suspended sentence is generally reserved for the offender who deserves a last chance.[16] The offender subject of a suspended sentence is, generally, free to move about the community and mix with people unhindered, although the sentence suspended hangs over his or her head providing incentive not to re-offend. It is a significant penalty.[17]

    [16]   R v Buckman (1988) 47 SASR 303 at 304 (King CJ).

    [17]   See R v Hosking [2017] SASCFC 50 at [47]-[48] (Blue J) and the authorities cited therein.

17. The constraint upon liberty and the punitive experience that home detention exacts is qualitatively different, and significantly so, to serving a sentence in prison.[18] At its most relaxed, it “may come to approximate a suspended sentence”.[19] Two things flow from this. First, as Doyle J said in R v Dell; R v Dell:[20]

    … it is important to bear in mind that while serving a term of imprisonment on home detention represents a significant entrenchment upon a defendant’s ordinary liberty and freedom of movement, and is a more onerous form of punishment than a suspended sentence of imprisonment, the reality is that it is a significantly less onerous form of punishment than a requirement that the defendant serve an immediate term of imprisonment within a prison. The New South Wales authorities in relation to the similar regime for home detention orders that exists in that jurisdiction make this plain.

    The significance of the less onerous nature of a home detention order is that courts will need to be astute to ensure that the making of such an order – even if it will assist in the rehabilitation of the defendant and provide sufficient personal deterrence – does not inappropriately undermine achievement of the objectives of punishment and general deterrence. The ultimate sentence imposed must always be appropriate having regard to the criminality of the conduct involved, and the Court’s concern to achieve a level of punishment and general deterrence. The greater the weight to be attached to these objectives in an individual case, the less likely it will be appropriate that there be an order for home detention.

    (footnote omitted.)

    [18]   R v Filipponi (2016) 126 SASR 464 at [31] (Kourakis CJ).

    [19] (2016) 126 SASR 464 at [31].

    [20] (2016) 126 SASR 571 at [56]-[57].

18. Second, accepting the variable constraint on liberty that a home detention order may have dependent upon the conditions imposed, it will be important that a sentencing court turn its mind to the conditions to be imposed as part of making a home detention order.[21] The variation or imposition of conditions may be necessary to achieve the purposes of punishment and compliance with s 33BB(3) and (4) of the Sentencing Act in the individual case.

    [21]   In R v Filipponi (2016) 126 SASR 464 at [30] Kourakis CJ held s 33BC(3) of the Sentencing Act to confer a discretion on a sentencing court to amend the prescribed conditions set out in s 33BC(1).

19. Put slightly differently, the imposition of conditions is a means by which the punitive quality of home detention may be fashioned to achieve the purposes of punishment in the individual case. It follows from this that for a sentencing court to treat the conditions set out in s 33BC (1) of the Sentencing Act as automatically applying risks error.

20. In his speech on the motion that the Statutes Amendment (Home Detention) Bill be read a second time the Attorney-General referred to the Bill as seeking to “divert offenders from custody who are assessed as low risk of causing harm to the community while providing a suitably intensive penalty that involves monitoring and restrictions on liberty”.[22] He added that the Bill “provides greater opportunity for minimising the harm associated with imprisonment by allowing a prisoner to maintain important community ties and enhance opportunities for engagement with appropriate treatment and counselling services…”.[23] It is to be noted that the Act does not limit home detention as a sentencing option to particular offences or offenders. It vests in sentencing courts a discretion to impose home detention subject to the paramount consideration of ensuring the protection of the community and satisfaction of the requirements contained in s 33BB(2) of the Sentencing Act.

    [22]   Parliament of South Australia, House of Assembly, Parliamentary Debates, Hansard, 10 September 2015 at 2470.

    [23]   Parliament of South Australia, House of Assembly, Parliamentary Debates, Hansard, 10 September 2015 at 2470.

21. The harm to the offender and the community associated with imprisonment has always been taken into account by sentencing courts. Such harm, and the loss of liberty, provide reasons why imprisonment has long been considered a penalty of last resort.[24] Further it hardly need be said that sentencing courts are alive to the fact that, ordinarily, the ultimate aim is that the offender be reclaimed by the community with the consequence that harm done to the chances of the offender being reclaimed by the imposition of punishment itself is to be minimised to the extent that it is possible.

    [24]   The Queen v Vasin; The Queen v Scherf (1985) 39 SASR 45 at 48 (White J); R v Way (2004) 60 NSWLR 168 at 191 (Spigelman CJ, Wood CJ at CL and Simpson J).

1. The weight that the harm associated with imprisonment attracts is, however, very much a function of the sentencing options available to the courts. Similarly, the determination of what in the way of penalty is necessary to achieve the purposes of punishment is also, in part, a function of the sentencing options available. It follows that the expansion of sentencing options necessarily requires a degree of recalibration of sentencing approach.

2. As indicated, Part 3 Division 3A of the Sentencing Act vests a significant discretion in sentencing courts as to when it is appropriate to order that a sentence of imprisonment be suspended and served on home detention. In enacting Part 3 Division 3A Parliament has provided an additional sentencing option that may, depending on all relevant circumstances, best serve the purposes of punishment where previously, because the option was not available, a different sentencing response was appropriate. The ordinary sentencing response to large scale systematic breaches of trust evident in the authorities decided prior to the insertion of Part 3 Division 3A must be considered in this light. That sentencing response determined that lengthy periods of imprisonment actually served was, generally speaking, the appropriate means of achieving the purposes of punishment. In this it may be said that general deterrence and retribution played no small part.

3. In this case the punitive experience to which the respondent is subjected by the home detention order as made can be considered, allowing for the full expanse of executive action possible, as, indeed, the order does, “very proximate to a suspended sentence”. In R v Filipponi Kourakis CJ observed:[25]

   …Yet, because the statutory premise is that a suspended sentence has already been excluded it necessarily follows that the occasions on which a relatively relaxed home detention order can properly be made will be limited. That is all the more the case if suspension pursuant to Pt 5 has not been ordered because it would not provide adequate punishment or deterrence.

   [25] (2016) 126 SASR 464 at [31].

4. The significant difference between the punitive experience imposed in sentencing for large scale abuses of trust and that imposed in this case is, in my view, suggestive of error, even having regard to the need to reconsider sentencing approaches in the light of home detention now being available as a sentencing option.

5. This is borne out by an examination of the conditions of the respondent’s home detention, as imposed by the Judge.  In summary, she was mandated to be of good behaviour and remain under the supervision of a home detention officer, to reside at a specified residence and remain there at all times except for the purpose of pre-approved remunerated employment, urgent medical or dental treatment, averting or minimising risk to herself or others or attending pre‑approved education, training or activity.  The order also required her to wear an electronic transmitter, and to maintain in operating condition a mobile phone.  Upon request of her supervising officer, she was to present herself at the front door of the specified address.  She was required to surrender her passport and not leave the State without written permission.  She was ordered not to possess a firearm and to submit to tests including testing without notice.  She was to undergo assessment, counselling or treatment as deemed appropriate.

6. As may be discerned from the above conditions, the respondent was relatively free to go about her normal life.  She was not restricted from working or attending educational or other training courses and activities.  She was not restricted from socialising with others in her own home.  There was no condition restricting the consumption of alcohol. As the Chief Justice made clear in R v Filipponi, some home detention orders, such as that in this case, allow for a great degree of social and community interaction.  Guests, as in this case, can be received and entertained in the home. He said:[26]

   Be that as it may, it is important to observe that s 33BC of the Sentencing Act contemplates that some home detention orders will allow a great deal of social mobility and interaction with the community. That is particularly so if the defendant is in employment. I take remunerated employment to include self-employment. Much employment is now not confined to a particular workplace. It is not uncommon for employees to travel to public places or to private homes to perform their work. The condition allowing a person to leave his or her home for a purpose approved by a home detention officer also allows much scope for community interaction. The effect of such wide conditions is to substantially ameliorate the burden of home detention. The major part of the day for most working people is taken up by obligations such as work, child-minding and household chores. If permission to leave the home for those purposes is allowed a home detention order may not pose much restriction on movement. That is even more the case if permission is granted to leave the home for important family and social occasions or for the purposes of education. It must also be remembered that people can be received and entertained in the home. Even though deprivation of the freedom to come and go at will, to enjoy the outdoors, other public places and to visit others privately is a substantial burden, if the conditions are too relaxed a home detention order may come to approximate a suspended sentence …

   [26]   R v Filipponi (2016) 126 SASR 464 at [31].

7. In addition, by contrast to the prison experience, a person subject to home detention, unless the order specifies to the contrary, is able to live with whom they choose, eat at times of their choosing, sleep and exercise at will. They may watch television, listen to music, and search the internet whenever they wish. No restriction is placed on communication with the community or the world at large electronically. The freedom permitted is considerable. On my understanding, a person on home detention is also permitted to access their garden.  Further, on my understanding, this would be so even where the detainee is subject to a condition of electronic monitoring provided they remain within the bounds of their home and the range of the electronic equipment. Thus in small to medium sized homes the offender may walk to their letterbox at will, and, standing inside their gate, engage passersby in conversation.

8. Bearing in mind the past approach to offending constituted of large scale breaches of trust, I cannot see how the order of home detention made in this case, having the relaxed content it has and allows for, adequately punishes the respondent and can be said to meet the needs of general deterrence. That it amounts to error is made plain when one recalls the breadth and depth of the ongoing deception, that the respondent maintains her innocence, is not remorseful and offers no explanation for her conduct. As I have said, there is little put that mitigates her offending.

9. I am also influenced in arriving at my conclusion by the comparative disparity in the punitive effect of the sentences imposed on the respondent and Mr Peisley. I appreciate that Mr Peisley did not cooperate with the interview conducted for the purposes of the preparation of the home detention report compiled by Correctional Services so as to assist the respondent. I do not think that non-cooperation necessarily foreclosed the question of home detention for Mr Peisley. In any event, the gulf separating the punitive experience of Mr Peisley on the one hand, who was less culpable than the respondent, and the respondent on the other, is so great as itself to suggest error.

10. I accept that the respondent’s separation from her children would make any time she served all the more burdensome for her in prison. But that factor attracts little weight bearing in mind the harm she willingly exposed them to in order to achieve her ends.

11. I do not accept the Director’s submission that the hardship experienced by the children as a consequence of separation from their mother should she be imprisoned should not have been taken into account by the Judge. In truth it was the only factor present that could support some amelioration in the penalty to be imposed. The submission that the hardship occasioned to the children should not be taken into account overlooks the fact that the focus of s 10(1)(n) of the Sentencing Act is the hardship occasioned by the dependents irrespective of how it arises, and not the hardship occasioned to the offender. In nearly all cases the hardship occasioned by dependents is the product of the offender’s failure to consider the consequences of his or her conduct for his or her dependents.

12. Here, despite her offending, the respondent remains at the “epicentre of [her children’s] universe”. No-one suggested to the Judge that the respondent’s offending proved that she could not be attentive to the needs of her children going forward as was floated in this Court. The fact remains that to deny the children their mother will occasion the children hardship. In this regard no reason arises to doubt Mr Encel’s report.

13. At this juncture I pause to say something more about the sentence imposed upon Mr Peisley. Arguably the Judge acceded to Mr Peisley’s request that he not be considered for home detention in order to better the respondent’s chances of home detention. It is not necessary to decide whether the Judge did in fact do so. It is one thing to take into account an opinion expressed by one parent as to which of two parents is the best person to look after the children of the relationship if it were the case that circumstances allowed, or might allow, only one to do so. It is another to allow one parent to dictate the outcome or attempt to do so. To accede to Mr Peisley’s request would mean, in effect, permitting him to influence the sentence to be imposed upon the respondent by influencing the weight to be afforded the hardship that the children would suffer if their mother was imprisoned. If that occurred the sentencing discretion would have been impermissibly fettered. As noble as Mr Peisley’s act might be, it could not influence the Judge’s exercise of the sentencing discretion. It is for the Judge to determine the appropriate sentence to be imposed.

14. As I understood the Director’s second argument, it was to the effect that to take into account in sentencing an offender the fact that his or her spouse is in custody with the consequence that there is no one to look after the children of the marriage would undermine the principle of equal justice in that the parties would be treated differently on the basis of an arbitrary, and therefore, irrelevant, difference. [27] That is, the offender who happens to have a family and whose partner happens to be in prison, is treated differently to the offender who, all other things being equal, has a family and whose partner is not in prison, or, again all other things being equal, has no partner and no family.

    [27] See Green v The Queen (2011) 244 CLR 462 at [28] (French CJ, Crennan and Kiefel JJ); Lowe v The Queen (1984) 154 CLR 606 at 610-611 (Mason J).

15. In R v Wirth Bray CJ expressed a similar concern. He said:[28]

    It seems to me, as I said in Moore v Fingleton, that it would be patently unjust if of two people accused of the same crime in the same circumstances with no other differentiating factor one were to receive more lenient treatment than the other simply because of the effect of the sentence on his family. It also seems to me that it would be wrong in principle if the generosity of a stranger to the proceedings were permitted in effect to purchase leniency for the offender. The law does not recognise vicarious atonement for crime. In saying this I in no way disparage the magnitude of the sacrifices made on the appellant's behalf or the magnitude of the peril in which his relations stand, but it seems to me that these are matters which ought not to be allowed to deflect the course of justice.

    (footnote omitted.)

    [28] (1976) 14 SASR 291 at 294.

16. The force of Bray CJ’s reasoning cannot be denied. However, s 10(1)(n) of the Sentencing Act requires sentencing courts to consider the hardship occasioned to dependents. In considering that hardship s 10(1)(n) is concerned with the price the community pays if the penalty otherwise appropriate is imposed. In R v Constant the Full Court explained: [29]

    ... In our view, consistent with Dr Thomas’s first exception, both s 16A(2)(p) and s 10(1)(n) invite sentencing courts to consider whether the community’s interest in the imposition of the appropriate sentence, being a sentence formulated having regard to the purposes of punishment and for the promotion of the community welfare through the administration of justice and the enforcement of the criminal law, would, if imposed, pursue those purposes at a cost to the defendant’s family or dependants that is, in the community’s interests, too high such that the sentence under consideration should be adjusted. This, in our view, is what is entailed in the application of the exceptional circumstances test. In this regard, we find ourselves largely in agreement with Kourakis J, as he then was, where, in R v Buckskin, he said:

    The exception articulated by Wells J has been recognised in many cases since. 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. 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.

    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. 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.

    (Footnotes omitted.)

    In our view, however, to adopt such approach is not to abandon the exceptional circumstances test, but to give it the content which belies its original formulation in the judgment of Wells J in Wirth. Where the hardship occasioned by a defendant’s family travels beyond what is appropriate in securing the community’s welfare and protection through the enforcement of the criminal law, it becomes special or uncommon – exceptional.

    (footnote omitted.)

    [29]   R v Constant (2016) 126 SASR 1 at [66]-[67].

17. In R v M, G I added:[30]

    The exceptional circumstances test so understood will most obviously have work to do in those borderline cases where, for example, whether to impose an immediate custodial penalty is in the balance, or where the offender’s dependants can cope without him or her for a period but not quite as long as the appropriate penalty would normally be, or where to impose home detention imprisonment as opposed to a sentence in prison is under consideration. However, quite clearly, the greater the need to incapacitate the offender in order to protect the community, and the greater the need to separate the offender from the community in order that he or she be adequately punished and deterred along with others from future offending, the greater the tolerance of hardship caused to his or her dependents becomes.

    [30] [2016] SASCFC 116 at [100].

18. In my view this was not a borderline case in the sense referred to above. All the circumstances considered, including acceptance of the fact that imprisonment of the respondent is not required to protect the community, a punitive response greater than that provided for by the home detention order made was required to adequately meet the purposes of punishment.  Lamentably, the judiciary does not have available as a sentencing option the discretion to order that part of a non-parole period be served in prison and the remainder be served on home detention. Such outcome may only be achieved upon the decision of a member of the executive government to release a prisoner early on specified conditions.[31] That possibility is not something to which this Court can have regard.

    [31] Correctional Services Act 1982 (SA) Pt 6 Div 3.

19. I consider the gravity of the respondent’s offending, the non-acceptance of responsibility and the absence of any explanation such that it was inappropriate to suspend the sentence of imprisonment imposed and order service of that sentence on home detention where such home detention was as relaxed as I have described above. So concluding I make plain that I also consider that the hardship occasioned to the respondent’s children did not exceed what was appropriate in securing the community’s welfare and protection through the enforcement of the criminal law such as to warrant the home detention order as made.

20. For these reasons, in my view, the sentence imposed was manifestly inadequate. Further, for the same reasons, I consider the home detention order to result in the imposition of a penalty so far below what was appropriate in all the circumstances as to undermine the administration of justice. I make plain that in arriving at such conclusion I consider that strong reasons of public policy exist which demand that permission to appeal be granted notwithstanding the public interest in ensuring that the respondent is not twice vexed by the repeated exercise of the coercive power of the State.

    Conclusion

21. I would grant permission to appeal and allow the appeal. I would hear from counsel further on the appropriate sentence to be imposed.