Raab v Godwin
[2004] WASCA 313
•23 DECEMBER 2004
RAAB -v- GODWIN & ORS [2004] WASCA 313
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 313 | |
| Case No: | SJA:1081/2004 | 10 DECEMBER 2004 | |
| Coram: | SIMMONDS J | 23/12/04 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Appellant resentenced to community based order for period of 12 months | ||
| B | |||
| PDF Version |
| Parties: | JASON TIMOTHY RAAB WAYNE GODWIN TROY NATHAN BABICH BRYAN TREVOR MORRIS |
Catchwords: | Criminal law and procedure Sentencing 32 counts of fraud One count of driving while legally disentitled to hold a driver's licence committed while the offender was subject to a conditional release order imposed for counts of fraud Offender not shown to be aware he was disqualified from driving as a result of court order Whether sentence of immediate imprisonment was the only appropriate disposition Whether Stipendiary Magistrate erred in failing to give proper consideration to suspending any period of imprisonment Whether total effective sentence of 16 months' imprisonment was manifestly excessive |
Legislation: | Bail Act 1982 (WA) Criminal Code 1913 (WA), s 409(1)(c) Justices Act 1902 (WA), s 136AA Road Traffic Act 1974 (WA), s 49 Sentencing Act 1995 (WA), s 6(4), s 39, s 63, s 67, s 128(1), s 130(1) |
Case References: | Chinnery v Hansen [2001] WASCA 349 Cross v Cook [2001] WASCA 242 Dinsdale v The Queen (2000) 74 ALJR 1538 Fernando v Keady, unreported; SCt of WA; Library No 940135; 4 March 1994 George v Birtwistle [2003] WASCA 75 Hegney v Cheeseman and Anor, unreported; SCt of WA; Library No 940466; 2 September 1994 Lavater v McCormack, unreported; SCt of WA; Library No 950033; 30 January 1995 Nevermann v The Queen (1989) 43 A Crim R 347 Zammit v Illich [2003] WASCA 88 Griekspoor v Scott [2000] WASCA 419 R v White [2002] WASCA 112 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
WAYNE GODWIN
TROY NATHAN BABICH
BRYAN TREVOR MORRIS
Respondents
ON APPEAL FROM:
Jurisdiction : COURT OF PETTY SESSIONS
Coram : MR BROWN SM
Citation : JO 6251/04, BS 533-538, BS 541-542/02, BS 625-538, BS 640-649/02
Catchwords:
Criminal law and procedure - Sentencing - 32 counts of fraud - One count of driving while legally disentitled to hold a driver's licence committed while the offender was subject to a conditional release order imposed for counts of fraud - Offender not shown to be aware he was disqualified from driving as a result of court order - Whether sentence of immediate imprisonment was the only
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appropriate disposition - Whether Stipendiary Magistrate erred in failing to give proper consideration to suspending any period of imprisonment - Whether total effective sentence of 16 months' imprisonment was manifestly excessive
Legislation:
Bail Act 1982 (WA)
Criminal Code 1913 (WA), s 409(1)(c)
Justices Act 1902 (WA), s 136AA
Road Traffic Act 1974 (WA), s 49
Sentencing Act 1995 (WA), s 6(4), s 39, s 63, s 67, s 128(1), s 130(1)
Result:
Appeal allowed
Appellant resentenced to community based order for period of 12 months
Category: B
Representation:
Counsel:
Appellant : Mr A J Robson
Respondents : Ms S E Wisbey
Solicitors:
Appellant : Legal Aid of Western Australia
Respondents : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Chinnery v Hansen [2001] WASCA 349
Cross v Cook [2001] WASCA 242
Dinsdale v The Queen (2000) 74 ALJR 1538
Fernando v Keady, unreported; SCt of WA; Library No 940135; 4 March 1994
George v Birtwistle [2003] WASCA 75
Hegney v Cheeseman and Anor, unreported; SCt of WA; Library No 940466; 2 September 1994
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Lavater v McCormack, unreported; SCt of WA; Library No 950033; 30 January 1995
Nevermann v The Queen (1989) 43 A Crim R 347
Zammit v Illich [2003] WASCA 88
Case(s) also cited:
Griekspoor v Scott [2000] WASCA 419
R v White [2002] WASCA 112
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1 SIMMONDS J: This is an appeal against a total sentence of 16 months' imprisonment on convictions in the Court of Petty Sessions on complaints comprising 32 counts of fraud and one count of driving while disqualified from holding a licence. The grounds of appeal went to the failure of the learned Stipendiary Magistrate to consider alternatives to imprisonment or to suspend imprisonment; and to the total effective sentence as being manifestly excessive.
2 I begin these reasons by setting out the background to this matter, including the sentencing decision of the learned Stipendiary Magistrate in more detail, followed by separate treatment of each of the three grounds of appeal.
Background
3 On 16 July 2004, the appellant, Jason Timothy Raab, pleaded guilty to complaint number JO 6251/04. This was a charge of driving a motor vehicle without being the holder of the appropriate valid driver's licence for that class of vehicle and whilst being legally disentitled to hold a driver's licence, contrary to s 49(1)(a) and s 49(2)(a)(iii) of the Road Traffic Act1974 (WA). The offence had been committed on 14 July 2004 while the offender was subject to a 2-year conditional release order with a $3500 monetary undertaking. This order had been imposed on 3 June 2003 in the Busselton Court of Petty Sessions where Raab had pleaded guilty to 32 counts of fraud forming part of a larger number of such counts, the balance of which had apparently been withdrawn. Those counts bearing charge numbers ranging from BS 0533/02 to BS 4648/02 were apparently all in similar form, referring to the offender's issuance of a cheque with insufficient cleared funds with intent to defraud by deceit and obtaining a benefit thereby from the different entities identified in the different complaints, contrary to s 409(1)(c) of the Criminal Code 1913 (WA).
4 In this case, the maximum penalty for the driving offence was in the circumstances 18 months' imprisonment and disqualification from holding or obtaining a driver's licence for a period of not less than 9 months and not more than 3 years. At a sentencing hearing on 23 July 2004 in the Perth Court of Petty Sessions, the learned Stipendiary Magistrate sentenced the appellant to 4 months' imprisonment for the driving offences and disqualification for 12 months, cumulative on any other disqualification.
5 At the same sentencing hearing on 23 July 2004, the learned Stipendiary Magistrate also sentenced the appellant for the fraud offences
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- that had resulted in the conditional release order. This sentencing was pursuant to s 130(1) of the Sentencing Act1995 (WA). That provision is enlivened if a Court convicts a person of an offence, the statutory penalty for which is or includes imprisonment and the offence was committed while the person was subject to, amongst other things, a conditional release order: s 128(1) of the Sentencing Act. The offence in this case was the driving offence.
6 So enlivened, s 130(1) says:
"If satisfied that a person committed an offence while subject to a [conditional release order] …, a court that may deal with the person under this subsection may -
(a) if the [conditional release order] or community order is then in force, do one of the following:
(i) confirm the [conditional release order] …;
(ii) amend the [conditional release order] …;
(iii) cancel the [conditional release order] … and sentence the person for the offence for which the [conditional release order] … was imposed in any manner the court could if it had just convicted the person of that offence;"
8 Further aspects of the offences will emerge as I discuss the grounds of appeal below, where I also reach circumstances personal to the appellant.
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Ground 1: error in concluding that imprisonment was the only appropriate disposition
9 This ground is that "the learned Stipendiary Magistrate erred in concluding that imprisonment was the only appropriate disposition having regard to the [appellant's] personal circumstances and the nature of the offences".
10 The basic principles of sentencing relevant to this ground were not in any dispute. They are that a Court must not impose a sentence of imprisonment unless it decides that either the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it: s 6(4) of Sentencing Act. There is a set of sentencing options in s 39(2) and s 39(3) directs a Court not to use a sentencing option in s 39(2) unless it is satisfied having regard to Div 1 of Pt 2 of the Act that it is not appropriate to use any of the options listed before that option. That list includes, by s 39(2)(d), a community based order, and, by s 39(2)(e), an intensive supervision order, among those listed ahead of (s 39(2) (f)) suspended imprisonment, or (s 39(2) (g)) imprisonment.
11 In this case, there was no articulation of the learned Stipendiary Magistrate's sentencing decision-making process that was communicated in the terms of this legislation. However, that does not seem to me to be an error that would itself warrant interference with his decision. A frequently cited authority for this is Nevermann v The Queen (1989) 43 A Crim R 347, per Malcolm CJ at 350, where his Honour said:
"It is not necessary for a full or detailed statement of reasons to be given in every case. This would not be practicable in a busy court such as the District Court and it would be even less so in a Court of Petty Sessions. The imposition of such a requirement in every case would cause delay in the administration of justice. The reasons may be stated shortly, without being developed in any detail. It does not follow either from the decision of James (1985) 14 A Crim R 364 or from s 19A of the Criminal Code that because imprisonment is the sentence of last resort, it is necessary in each case to name all the possible alternatives and the reasons for rejecting them: see, for example, Napper v Samuels [1972] 4 SASR 63 at 68 per Bray CJ; and R v Ciccone (1974) 7 SASR 110. It is enough if the sentencing Judge indicates in general terms that he has considered the alternatives
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- and states shortly his reason for his adoption of the sentence or other disposition he considers appropriate."
12 In this case, the learned Stipendiary Magistrate imposed two sentences of imprisonment, one in respect of the fraud offences, and one in respect of the driving offence. In respect of the fraud offences, he referred to the possibility of dealing with some matters by way of fine or by way of a community supervision order. He went on, however, to say:
"In the circumstances, the crimes are sufficiently serious to justify a term of imprisonment. Frauds of that kind are common in our community. If it's an isolated incident for perhaps emergency circumstances, the courts tend to be - - understand, but when it is on a wider scale causing - I think - a breakdown in our society to some extent, in that small traders expect people to honour their - - their cheques and in this case there are 32 matters all committed back in 2002."
13 The learned Stipendiary Magistrate also referred to a number of circumstances personal to the offender. He referred to "a difficult period in his life when his business was going effectively down the tube and his relationship was also in difficulties". He also referred to the fact that:
"It's said that he has been treated for some depression, that he has had a problem with getting over his marriage breakdown, which has only recently been resolved but beyond that, I have to say that he effectively has had the opportunity to be in the community and has failed miserably by committing continuing offences, all of which involved being apprehended and spoken to the police, they been very apparently generous in issuing summonses, nevertheless he was stopped on each occasion and on each of those occasions they were imprisonable offences."
14 Both of these quoted passages (from AB 96) are preceded by a reference to the imposition of the conditional release order, and to the amount of the undertaking on it, which his Honour said "reflects the totality of the crime and was there to ensure that he understood that there were still going to be some sanctions if he was so foolish as to reoffend during the next two years" (AB 95).
15 The learned Stipendiary Magistrate also referred to a number of decisions on fraud offences similar to those here in which sentences of imprisonment had been imposed. These were Lavater v McCormack, unreported; SCt of WA; Library No 950033; 30 January 1995; Hegney v
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- Cheeseman and Anor, unreported; SCt of WA; Library No 940466; 2 September 1994; and George v Birtwistle [2003] WASCA 75.
16 However, the amounts at stake in the frauds in those cases, and the levels of planning or the use of theft to facilitate the frauds would seem to differentiate those cases from this one. In this case, the individual complaints were in respect of the acquisition of goods of varying kinds and acquisition costs ranging from $20 to $871.85, using the cheque account the appellant employed as one into which proceeds from his business activities would be paid, and in respect of which the learned Stipendiary Magistrate was informed, in the detailed plea in mitigation offered by counsel for the appellant at the sentencing hearing, the appellant had expected certain payments to be made which either were not paid, or were paid late. It should also be noted, however, that, during the two-month period over which the 32 transactions occurred, the appellant had been cautioned by the police in respect of one or more of the transactions where a cheque had not been covered by funds in the account. This case was, then, as counsel for the respondents agreed, very much at the lower end of seriousness so far as ones that might receive a sentence of imprisonment were concerned. Counsel for the respondents also conceded that the appellant's prior criminal history was a relatively minor one, although it had an element to which I will shortly return.
17 Counsel for the appellant pressed on me the recommendation in the oral pre-sentence report made to the learned Stipendiary Magistrate by a Ms Chadwick in which she expressed her conclusion that the appellant would benefit from "some intervention at the moment by way of an order of community supervision with a programme requirement and he has demonstrated a willingness to return to satisfy the requirement of a period of community service work" (AB 89). It was noted that the appellant had not previously been sentenced to a community order or any other order more constraining of him on any of his prior offences. However, if matters had rested there, I would not be prepared to conclude that the learned Stipendiary Magistrate had failed to take proper account of the appellant's personal circumstances in his determination that imprisonment was the only appropriate disposition.
18 However, counsel for the appellant also made reference to the approach taken by the learned Stipendiary Magistrate to the breaches of the conditional release order represented not only by the driving offence, but also by convictions for two other similar offences. These were convictions on 10 March 2004 in the Court of Petty Sessions at Midland for driving without a licence where that licence was under fine
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- suspension, which resulted in a court-ordered licence disqualification for the appellant, and on 15 June 2004 in the Court of Petty Sessions at Mandurah driving without a licence because of that court-ordered disqualification, which also resulted in a further court-ordered disqualification period. Both convictions were in the absence of the appellant. The complaint that led to the June conviction indicated, by its reference to the appropriate provision in the Road Traffic Act (s 49(2)(a)(iii)), the nature of the disqualification concerned. But that complaint did not spell out the nature of the disqualification as a court-ordered disqualification.
19 The learned Stipendiary Magistrate appeared to attach considerable importance to his characterisation of all three offences for the purposes of his exercise of his sentencing discretion in relation to the fraud offences (and, as it will appear, in relation to the driving offence). This is indicated in the second of the two passages I previously quoted fromhis judgment at AB 96.
20 In relation to the complaint that led to the June conviction, the offender was said by the learned Stipendiary Magistrate to have "entered his own plea" (AB 98). However, as the endorsement on the complaint indicates (AB 106), it was not dealt with on the basis of any such plea, but rather under Justices Act 1902 (WA), s 136AA. I note, however, that the endorsed complaint was not available to the learned Stipendiary Magistrate.
21 The learned Stipendiary Magistrate, speaking with respect to the driving offence which I will reach shortly, said that it was "aggravated by the fact that without obtaining a time to pay arrangement, I accept that it is now clear that by coincidence only, the collection agency sent a letter dated 13 July to his address and he was picked up on the 14th and appeared in court on that very day" (AB 98). His Worship appears to have had in mind an exchange he had with counsel for the appellant (AB 93) in which counsel indicated his understanding from instructions that an inquiry had been made of the fines enforcement agency which had sent out papers to him for the purpose of a repayment of the fines due by instalments.
22 Before me, it was the submission of counsel for the appellant that in his personal condition at the time, having regard to his state of depression and other personal circumstances, he had understood the telephone exchange on 13 July as having the effect of dealing with the fine obligation, such that his licence suspension had ceased. It was further put
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- to me that, as he had not been present at the Court of Petty Sessions hearings on 10 March or 15 June, he would not have been aware that there was a suspension that had been court-ordered in addition to the fine-based suspension. Further, my attention was directed to the letter sent from Repcol (WA) Pty Ltd to the appellant, but care of his mother's address, in which the author refers to "your agreement to repay the amount due by way of regular payments which are to be deducted from your nominated Financial Institution account", and enclosing a "Direct Debit authority" so that "these deductions may commence". It is not apparent to me whether this letter was available to the learned sentencing Magistrate. It is annexed to the affidavit of the appellant sworn 20 September 2004 for the purpose of the hearing before me.
23 It was put to me by counsel for the respondents that it is the obligation of persons in the position of the appellant to understand their legal obligations as set out in the complaints that preceded the hearings of 10 March and 15 June. It was agreed that the appellant might not have been aware of the outcome of those proceedings, which the learned Stipendiary Magistrate may have accepted when he indicated that there was the duty on the offender to "inquire as to the outcome of what happens at court", referring to the proceedings in March and in June (AB 98). However, it was submitted he would have been under no misapprehension as to the risks he ran by driving following the dates scheduled for those hearings, to which he had made no objection. It seems to me, however, that this does not address the characterisation of the behaviour of the appellant that enlivened the jurisdiction of the learned Stipendiary Magistrate under s 130 of the Sentencing Act, the breach of the conditional release order, namely, the behaviour represented by the appellant having failed "miserably" to respond to the constraints of the conditional release order.
24 Counsel for the respondents pressed on me that, limited as the appellant's prior record was, including as it did a conviction in 2001 for driving under fine disqualification, it was sufficient, at least in conjunction with summonses he had received that had resulted in the proceedings in March and in June, to make the appellant aware that he ought not to drive without being assured of his entitlement to do so.
25 I have some considerable sympathy with that response. However, it does not appear to me that the driving undertaken by the appellant that produced the hearings in March, June and July was deserving of the characterisation which the Stipendiary Magistrate placed on it, a characterisation which was, as I have shown, of considerable importance
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- to his conclusion that imprisonment was the only option. I say it was not so deserving in light of the efforts the appellant made to satisfy the outstanding fine obligations to which I have already referred. I also note that there is a significant difference between driving while under a court-ordered disqualification and driving while disqualified under a fine suspension. This difference is found in the difference between their fines, imprisonment and disqualification penalties. By s 49(3) of the Road Traffic Act, both the minimum and the maximum fines are larger for cases of driving under court-ordered disqualification. The maximum terms of imprisonment for a first offence are the same, at 12 months, but in the case only of a court-ordered disqualification increases, to 18 months, for a subsequent offence. And in the case of driving while disqualified under court order, by s 49(3a) there must be a further disqualification of between 9 months and 3 years, while in the case of driving under fine disqualification by s 49(3b) there is a discretion whether or not to disqualify, for a period of up to 3 years.
26 It was indeed "foolish", as the learned Stipendiary Magistrate indicated (at AB 95), for the appellant to have reoffended while he was under a conditional release order. But if all the appellant knew was that his licence was under fine disqualification, then driving in those circumstances, while serious, was less serious than if he knew he was under court-ordered disqualification.
27 The driving in these cases does not appear to me to be driving involving a "willed defiance of the law, a wilful disobedience of the order of disqualification made on a former occasion by the court". This was the description of the driving in Fernando v Keady, unreported; SCt of WA; Library No 940135; 4 March 1994, Murray J where his Honour concluded that the term of imprisonment for the driving so characterised was not outside the range of an appropriate sentencing discretion.
28 In summary, given the antecedent circumstances that had been drawn to the learned Magistrate's attention, including those of the March and June proceedings, of depression, and of the dealings with the fines enforcement agency, the matter emerges as a materially less serious failure to comply with the terms of the conditional release order than the learned Stipendiary Magistrate described. It therefore seems to me that there was an error made by the learned Stipendiary Magistrate in one of the material assumptions on the strength of which he proceeded to make his determination that imprisonment was the only appropriate option.
29 On this basis, I would sustain this ground of appeal.
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30 I should not conclude on this ground without referring to other features of the personal circumstances of the appellant that were referred to in this connection. These were the appellant's prospects for rehabilitation, his new relationship after his marriage had collapsed, certain character references and his work to provide restitution to those who were the victims of the fraud offences. It would appear that all of these matters had been referred to in the oral pre sentence report made to the learned Stipendiary Magistrate, the submissions in the plea in mitigation, or other material before him. Of these matters, only the efforts towards restitution were specifically referred to in the sentencing remarks of the learned Stipendiary Magistrate (AB 95). However, on Nevermann (supra), and the terms of the learned Stipendiary Magistrate's sentencing remarks I have quoted previously (from AB 96) I would not be of the view that on this aspect alone the ground should be sustained.
31 I turn now to the learned Stipendiary Magistrate's determination as to imprisonment on the driving offence. He referred again to the circumstances of the other convictions, in March and June, as well as an outstanding fine for breach of the Bail Act1982 (WA). Here, he makes the references, to which I referred above, with respect to the matter concerning the dealing with Repcol, which he sees to have "aggravated" the matter because he drove "without obtaining a time to pay arrangement" (AB 98). He emphasised the "repetition of such offences" (driving while disqualified) "of concern to the community, the whole reason for a disqualification is to keep people off the road who have shown an inability to obey the law and in particular the road traffic laws" (AB 99). He referred as well to the decisions of this Court making it clear that such driving is regarded as a serious matter, with particular reference to Zammit v Illich [2003] WASCA 88, McKechnie J at [15]. The learned Stipendiary Magistrate expressed his "regret" that "this young man has demonstrated that he is not prepared to comply with the court orders" (AB 99).
32 The learned Stipendiary Magistrate concluded that "a community supervision order is not going to solve the problem, it's simply a question of understanding and accepting that you are not permitted to be on the road". He refers to the fact that there are "certain mitigating factors", apparently subsuming within this the same factors as were referred to for the fraud offences, but characterising them as "unremarkable" (AB 99).
33 I would make the same points about the characterisation of the learned Stipendiary Magistrate of the conduct of the appellant in driving as he did in this context, as I made with respect to the fraud offences. It
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- seems to me that Zammit (supra) is distinguishable from this case as one where the offender had previously received a suspended sentence for a (fourth) offence of driving while under disqualification, and then drove again while still disqualified. I do not diminish the seriousness of driving under disqualification, whether fine-based or court-ordered. However, in the circumstances of the present case, there was, as I have explained, an important distinction between the two bases for disqualification for the purposes of the exercise of sentencing discretion.
34 Again, it was pressed on me that the learned Stipendiary Magistrate had failed to refer to the other personal circumstances of the appellant of the sorts of referred to in connection with the fraud offences. I would make the same comments with respect to those in this context as I did with respect to them in the other.
Ground 2: failure to give proper consideration to suspending any period of imprisonment
35 There is no doubt that Courts must "proceed on the basis that a suspended sentence of imprisonment is always open and only if it is decided that it is not appropriate to impose such a suspended sentence may the court impose a sentence of immediate imprisonment": Chinnery v Hansen [2001] WASCA 349, Hasluck J, at [47]. Further, the Court "must first determine whether imprisonment is appropriate before addressing the question of whether the proposed term should be suspended": Hasluck J at [24]. It is appropriate in this connection to quote from a judgment of Kirby J in Dinsdale v The Queen (2000) 74 ALJR 1538 at [85], as Miller J did in Cross v Cook [2001] WASCA 242 at [14]. Kirby J in the quoted passage said this:
"… the same considerations that are relevant for the imposition of the term of imprisonment must be revisited in determining whether to suspend that term. This means that it is necessary to look again at all the matters relevant to the circumstances of the offence as well as those personal to the offender."
36 However, it also seems to me, consistently with Nevermann (supra) that it is not necessary for the sentencing judicial officer to articulate in so many words either the fact of the undertaking of this process or the factors referred to. It is only necessary that the Court be satisfied it has in fact properly been undertaken.
37 Unlike the case in Chinnery (supra) (see particularly [62] and [63]), there was here a fully argued plea in mitigation made by counsel for the
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- appellant, in which alternatives to imprisonment were addressed. In addition, the learned Stipendiary Magistrate specifically addressed the question of suspension of imprisonment for the offences: see AB 99. In these circumstances, I would not consider that the ground of appeal could be sustained in terms of a failure of the learned Stipendiary Magistrate to proceed as the law in this area requires. It would thus not be appropriate on that account to sustain this ground of appeal.
38 Of course, counsel for the appellant referred again to the circumstances of the driving offences, as well as the factors personal to the offender, as matters of which the learned Stipendiary Magistrate ought to have taken account in relation to the suspension of sentence. For the reasons I have already indicated, I would sustain this ground of appeal in those respects, but confined to the circumstances of the driving offences.
Ground 3: error in that the sentence of 16 months' imprisonment was manifestly excessive
39 At the hearing before me, counsel for the appellant put it to me that this ground went to the matter of whether a sentence of any sort was appropriate in light of the alternatives to immediate imprisonment that were available in this case and that should have been seen to be appropriate. In this respect, the ground of appeal seemed to me to add very little to the first ground with which I have dealt.
40 However, in this context counsel for the appellant laid particular emphasis in the argument before me on the oral pre-sentence report made to the learned Stipendiary Magistrate at the July hearing commending to him an order of supervision under s 65 with programme requirements under s 66. At the hearing before me, counsel for the appellant referred to the possibility in this case of a community based order under s 62 to s 67 of the Sentencing Act. The order, it was suggested to me, might appropriately contain, in addition to a supervision requirement within s 65, a programme requirement under s 66 with two elements, namely, a programme of financial counselling, and a programme of treatment if necessary to ensure that his depression was properly managed, or would be less likely to recur. I note there was a reference to similar programme requirements in the oral pre-sentence remarks made to the learned Stipendiary Magistrate, but to include as well counselling on any unresolved issues arising out of the breakdown of the appellant's marriage. Those remarks also contained a reference to community service as a possibility for the appellant, presumably within s 67 of the Sentencing Act.
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Conclusion
41 It follows from my treatment of the grounds of appeal that I have concluded there was an error made by the sentencing Magistrate involving a misunderstanding of a matter of such significance that the sentencing discretion in relation to imprisonment he exercised could be seen to have miscarried: Hegney v Cheeseman (supra). In these circumstances, it falls me to re-exercise the sentencing discretion.
42 In that respect, I have been assisted both by counsel for Raab and counsel for the respondents. As counsel for the respondents acknowledged to me, the sentence of imprisonment was a fairly heavy penalty for these offences for someone who had not previously been subjected to a custodial disposition. Further, as counsel for the appellant emphasised, there were the circumstances of the offender I have referred to which would make a community based order with supervision and programme requirements appropriate.
43 In the circumstances, then, I will impose a community based order with supervision and programme requirements. I do not see an additional community service element being called for in this case. The order will be for a duration of 12 months from the date of this judgment. There will be a supervision requirement. There will also be programme requirements going to financial counselling and any counselling needed in relation to depression and to unresolved issues arising out of the breakdown of his marriage. These are in addition to the standard obligations for such orders, in Sentencing Act s 63.
44 Finally, consistently with these reasons, I would not vary the learned Stipendiary Magistrate's order for the appellant's licence disqualification for 12 months, cumulative on any other licence disqualification he was under.
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