R v Sadler (aka Reece)

[2003] VSCA 206

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 192 of 2003

THE QUEEN

v.

MARIKA SADLER
(also known as SASCHA REECE)

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JUDGES:	WINNEKE, P., VINCENT and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 December 2003
DATE OF JUDGMENT:	4 December 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 206

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Criminal law – Sentence – Whether sufficient weight given to undertaking to assist authorities – Judge not aware of extent of such assistance at time of sentencing – Obligations of trial judges to state that a less severe sentence given pursuant to s.5(2AB) of Sentencing Act 1991 – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G.J.C. Silbert	K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr R.A.R. Lewis	Tony Isaacs

WINNEKE, P. (delivering the judgment of the Court):

1. In this appeal it was conceded by Mr Silbert for the Crown – somewhat prematurely – that the sentencing judge had made an error in failing to give, or at least state that he had given, pursuant to s.5(2AB) of the Sentencing Act 1991, a “less severe sentence because of the appellant’s undertaking to assist authorities”. The judge, in his report to this Court, says that he did take that assistance into account, and we would have assumed that he did because he is a very experienced judge. One thing he did not know, and could not have known, was the level of assistance which has now been given by this appellant pursuant to the undertaking which she gave. We are informed, and Mr Silbert on behalf of the Crown has confirmed, that she has given a 39-page statement to the authorities and has given evidence in court which will, hopefully, bring to book those who are really responsible for the fraudulent scheme in which Ms Sadler became involved.

1. For those reasons the Court is persuaded that his Honour did not, due to no fault of his own, give sufficient weight to the undertaking which he knew to have been made but which he failed to mention during the course of his sentencing reasons.

1. We should say this in respect of the question of assistance by offenders.  It is important for the sentencing judge not to ignore his obligation under the sub-section to which we have referred, notwithstanding that it is only a machinery provision.  It is significant that appellate courts should know that sentencing judges are not only taking these matters into account but are clearly stating, in accordance with the Sentencing Act, that they have taken the assistance volunteered into account.

1. His Honour imposed a sentence upon the appellant of two years and nine months – misdescribed by his Honour as three years and nine months in his reasons for sentence.  He directed that she serve a minimum period of nine months before becoming eligible for parole.  The low non-parole period was the result of some very striking mitigating circumstances in respect of which benefit had to be given to this appellant, not the least of which was a delay of some five years between the offending and the charges being laid against the appellant and being dealt with.  During that period of time she has, as one might have expected, substantially rehabilitated herself. 

1. The appellant stood for sentence with two co-accused.  They all pleaded guilty to a conspiracy to defraud.  It was an audacious scheme which had as its essence the recruitment of people to make false representations to major commercial institutions, including banks, to obtain credit.  The appellant and her co-accused were what could be described as “assisters” rather than promoters of the scheme.  She did worse on sentence than her two co-accused, whose sentences of two years were wholly suspended, because she participated in this fraudulent scheme while she was on a bond for similar type of offending in New South Wales.

1. The appellant has now served approximately six months of the nine months non-parole period, but, in the circumstances to which we have referred, we believe that the sentencing discretion is reopened and we consider that the appeal should be allowed and the sentence set aside and that in lieu of the sentence imposed by the learned judge we should impose a sentence of two years' imprisonment.  We will suspend that portion of the sentence which has not already been served for a period of 18 months from today’s date.

1. Ms Sadler, do you understand what I have said?  What this Court is now doing is releasing you as from today and suspending the remainder of the sentence of two years which we have now imposed, other than the portion you have already served in custody.

APPELLANT:  Yes.

WINNEKE, P.: 

1. We have done that, and we have suspended the remainder of the sentence for a period of 18 months.  That means this.  You must be of continued good behaviour during that 18 months.  If you commit any other crime which is punishable by imprisonment, that suspension will be forfeited and you will be brought back not only to serve, in all probability, the balance of the sentence which we have suspended, but you will also have to serve whatever time you are given in respect of the offence which breaches the suspended sentence.  Do you understand what I am telling you?

APPELLANT:  Yes, I do.

WINNEKE, P.: 

1. Make sure that you live up to our faith in you.

APPELLANT:  Yes, I will.

WINNEKE, P.: 

1. The formal order of the Court is that the appeal is allowed, the sentence imposed below is set aside and in lieu thereof we impose a sentence of two years' imprisonment.  That portion of the sentence which has not already been served is suspended for a period of 18 months from today’s date.