R v Lean (No 2)

[2017] SASCFC 110

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v LEAN (NO 2)

[2017] SASCFC 110

Judgment of The Court of Criminal Appeal

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

31 August 2017

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS

The respondent was convicted of 47 counts of deception and one count of attempted deception, for which she was sentenced to imprisonment for six years and eight months with a non-parole period of three years. That sentence was suspended and the respondent was ordered to serve the sentence imposed on home detention.

The Director of Public Prosecutions appealed on the ground that the sentence was manifestly inadequate. On 14 August 2017 this Court granted the Director permission to appeal, allowed the appeal, and set aside the sentence imposed by the Judge below.

Held: The respondent is resentenced to the sentence imposed by the Judge below save that the sentence is not suspended and ordered to be served on home detention.

Criminal Law Consolidation Act 1935 (SA) ss 340, 353, referred to.
R v Filipponi (2016) 126 SASR 464; R v Francheschini (2015) 123 SASR 396; R v Howat [2017] SASCFC 41, considered.

R v LEAN (NO 2)
[2017] SASCFC 110

Court of Criminal Appeal: Stanley, Nicholson and Hinton JJ

THE COURT:

1. The respondent 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. That sentence was suspended under Part 3 Division 3A of the Criminal Law (Sentencing) Act 1988 (SA) (Sentencing Act) and the respondent ordered to serve the sentence imposed on home detention.

2. The Director of Public Prosecutions appealed against the sentence imposed on the grounds that it was manifestly inadequate.

3. On 14 August 2017 this Court granted the Director permission to appeal, allowed the appeal, and set aside the sentence imposed by the Judge below. We did not proceed to sentence afresh in view of the respondent’s intimation that she wished to make further submissions in the event that the appeal was allowed.

4. On 21 August 2017 we heard further submissions. We now proceed to resentence.

5. These reasons are to be read against the background of our reasons for granting the Director permission to appeal and allowing that appeal. Accordingly, no need arises to refer again to the circumstances of the offending, the respondent’s personal circumstances, the sentence imposed on Mr Peisley, the content of the many references and testimonials provided by the respondent, the victim impact and community impact statements, the reports of Messrs Encel and Broomhall, the submissions made before the Judge below, and his reasons for imposing the sentence that he did. We have revisited and had regard to all of the material before the Judge.

6. In this Court counsel for the respondent made five points in relation to resentencing:

   (i)The respondent was on bail for a period of two years and 10 months pending trial and sentence;

   (ii)The respondent was on home detention for five months and 24 days pending the appeal and the judgment;

   (iii)The Bail Enquiry Report reveals that the respondent has been compliant in every respect with supervision;

   (iv)Despite the Court finding that home detention is not a sufficient punishment for the respondent’s offending, the fact remains that her liberty was curtailed for five months and 24 days. During that period of time she was told not to consume alcohol, although that was not burdensome because she did not, in any event, drink. Apart from this she was told that she was not to enter the backyard of the premises, the rumpus room, the shed or the pool area of the home because doing so would trigger the electronic monitoring to which she was subject. The result was that she remained fairly confined to a part of her home during the period of home detention. Admittedly she was given leave in the last couple of months to do school pick-ups to alleviate the pressure on other family members and on three occasions was given leave to attend a support group for women offenders; and

   (v)The arrangements for the care of the respondent’s children are in a state of flux. One option currently under contemplation is that the family home where the children were living with the respondent be sold and the children move to Waterloo to live with the respondent’s father and his partner. That may result in the children having to change schools. The disruption would be significant for the oldest child who is in year 12 and hoping to start university next year.

7. Counsel then referred the Court to the R v Filipponi (Filliponi).[1] He submitted that in that case, upon resentencing, the Court took into account the anxiety caused to the respondent who was ordered to serve his sentence on home detention only to be subject to an appeal by the Director of Public Prosecutions that was ultimately successful and resulted in the respondent being imprisoned. Counsel submitted that this Court should take into account the anxiety caused to the respondent by being exposed to the risk of imprisonment a second time in the same way as was done in Filipponi.

   [1] (2016) 126 SASR 464.

8. Counsel for the Director contended that the sentence that this Court should impose is the sentence as determined by the Judge below (i.e. six years and eight months with a non-parole period of three years) save that the Court should backdate the sentence to take into account time served on home detention as though it was home detention bail.  In this regard Counsel referred the Court to R v Francheschini where Nicholson J observed that credit of up to one third of the period of time spent on home detention bail had been given a defendant subsequently imprisoned.[2]  The alternative was to backdate the sentence to 21 February 2017, the date upon which the sentence was imposed, thereby crediting the respondent with the entire time spent on home detention.

   [2] (2015) 123 SASR 396 at [42].

9. In the course of hearing submissions difficult questions arose regarding the construction and interaction of s 340 and s 353(4) of the Criminal Law Consolidation Act 1935 (SA). Such questions were not foreseen, thus Counsel were not in a position to plumb the depths of the issues. In the circumstances, without the benefit of full argument we decline to determine those difficult questions of construction. We proceed on the basis that we are required to impose the sentence that should have been imposed at first instance.

10. The respondent continues to maintain her innocence. Consequently, she expresses no remorse or contrition.

11. We remain without any explanation for her offending. Unlike the Judge below, however, we are inclined to accept Mr Broomhall’s diagnosis of the respondent as possessing a Dependant Personality Disorder and rely upon it as providing some explanation for her offending. However, as we have stated, we do not accept that the respondent failed to appreciate the harm her offending occasioned others.

12. For the reasons we have already given, her offending was grave. Not only did it involve a gross breach of trust, as referred to in our reasons, but it caused suffering to many people. We repeat, we have had regard to the victim impact statements and to the community impact statement. We have also reminded ourselves of the financial loss caused SA Health.

13. The respondent’s prior good character and the many testimonials and references can attract little weight. However, we accept that her prospects of rehabilitation are good.

14. The fear, anxiety, sadness and disruption that the respondent and her husband have brought upon their children is immeasurable.

15. We appreciate the hardship that the children will now suffer. That is most regrettable. We understand the love they continue to have for their mother and their desire that she remain with them. However, in our view the broader purposes of punishment and the interests of the community require that the respondent serve an immediate custodial sentence.

16. We have had regard to the sentence imposed upon Mr Peisley and to the survey of comparable offending conducted by Doyle J in R v Howat,[3] bearing in mind the limited use that may be made of such sentences.[4]

    [3] [2017] SASCFC 41 at [56]-[62] (Vanstone and Parker JJ agreeing).

    [4]    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).

17. In the end we have decided to impose no different sentence to that imposed by the Judge below in relation to the offences as grouped by the Judge and overall, albeit that we arrive at such conclusion upon our own consideration of all factors, and save that we refuse to suspend that sentence and order that it be served on home detention.

18. Accordingly, the respondent is sentenced to a head sentence of six years and eight months imprisonment. We set a non-parole period of three years.

19. The non-parole period might be considered merciful. Nonetheless, having regard to the respondent’s personality disorder, to the hardship that her imprisonment will cause her dependants, to her prospects of rehabilitation, and to the fact that the prison experience will be difficult for her, we consider it sufficient to achieve the purposes of the head sentence.

20. The head sentence and non-parole period shall be taken to have commenced on 21 February 2017.