REED v Police - [2007] SASC 26

Supreme Court of South Australia
(Magistrates Appeals: Criminal)
REED v POLICE
[2007] SASC 26
Judgment of The Honourable Justice Layton (ex tempore)
24 January 2007
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - FALSE PRETENCES AND OTHER FRAUDS AND IMPOSITIONS - OBTAINING BY DECEPTION
Appeal against sentence imposed by a Magistrate - appellant pleaded guilty to six counts of deception and six counts of attempted deception - sentenced to three years and eight months imprisonment with a non-parole period of two years and nine months - where Magistrate took a starting point of six years imprisonment, before making deductions for guilty pleas and time spent in custody - where appellant has a long history of similar offending - where appellant suffers from drug addiction - where appellant withdrew from the Drug Court programme - whether sentence manifestly excessive when compared with similar cases - whether too much weight given to deterrence and insufficient weight given to rehabilitation - Held: Sentence was not manifestly excessive - appeal dismissed.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, referred to.
Police (SA) v Curtis (2004) 145 A Crim R 587; R v Davies (1996) 88 A Crim R 226; R v Ashdown (1994) 72 A Crim R 63; R v Cavanagh [1999] SASC 418; R v Highnett [2000] SASC 280; Craven v Police [2003] SASC 307; Veen v R (No 2) (1988) 164 CLR 465, considered.

REED v POLICE
[2007] SASC 26
Magistrates Appeal: Criminal
LAYTON J:
Introduction

This is an appeal against sentence imposed by a Magistrate on 17 November 2006. The appellant pleaded guilty to six counts of deception and six counts of attempted deception committed against the Adelaide Bank between 10 March 2004 and 6 June 2005. The deception offences consisted of the appellant telephoning the bank’s call centre and applying for a Visa Card. On some occasions the appellant used his own name and on other occasions he used a false name.
On the six occasions when the credit card was approved the appellant attended the bank and produced various false documents, including birth certificates, government entitlement ID cards and disability pension cards. The appellant then obtained the credit card and withdrew funds of approximately $27,000.
The conduct forming the basis of the six counts of attempted deception was essentially the same. However, on those occasions the call centre did not approve the issue of the credit card and the card was therefore not able to be obtained and used. The amount that the appellant attempted to receive totalled $34,000.
In sentencing, the learned Magistrate took as her starting point a term of imprisonment of six years, imposed in respect of all offences pursuant to s 18A of the Criminal Law (Sentencing) Act 1988 (SA).
The Magistrate then made a deduction of 25 per cent for the appellant’s early guilty plea and a deduction of eight months for time spent in custody and on home detention bail. This left a head sentence of three years and eight months. The non-parole period was set at two years and nine months. Both the head sentence and the non-parole period were backdated to 9 October 2006.
The sole ground of appeal pursued is that the sentence imposed by the Magistrate is manifestly excessive. Two major arguments were raised. The first was that the sentence was seen to be manifestly excessive when compared with the range of sentences imposed in respect of the obtaining of larger amounts over a longer period, where greed was the motive and abuse of trust was involved. It was submitted that these elements were not applicable in this case and in particular there was no breach of trust. I note that all of these features concern the circumstances of the offending in relation to the offences.
The second major argument was that the sentence was substantially influenced by the principle of deterrence and that factors such as rehabilitation were not given appropriate weight. In particular it was argued that there was a failure by the Magistrate to give weight to an acknowledgement by the appellant of his vulnerability in relation to drugs when considering the aspect of rehabilitation.
Counsel for the appellant, Mr Mead, drew my attention to the case of Police v Curtis[1] which in turn referred to a number of cases, which he submitted demonstrated that a sentence of six years is usually imposed for offending that is far more serious than that of the appellant. Mr Mead submitted that in the cases where a sentence of six or more years was imposed,[2] there was a breach of trust and a much greater sum of money involved than in the present case. Mr Mead submitted that there was no breach of trust in this case in a sense which was relevant to sentencing.
[1] Police (SA) v Curtis (2004) 145 A Crim R 587.
[2] R v Ashdown (1994) 72 A Crim R 63; R v Davies (1996) 88 A Crim R 226; R v Cavanagh [1999] SASC 418; R v Highnett [2000] SASC 280.
In considering the matter of comparative sentencing it has been expressed on many occasions that it is difficult to specifically compare sentences in different cases. In particular I note that the sentences quoted for comparison by Mr Mead were the head sentences imposed, while in this case the period of six years was merely the starting point before deductions were made for the guilty pleas and the time spent in custody. This makes comparisons even harder. Further I note that Gray J, in the case of Curtis, drew attention in [54] to the wide range of punishment for fraudulent conduct.
Ms Agnew, counsel for the DPP, acknowledged that the starting point of six years was, as she put it, on the “high side” but was nonetheless not shown to be outside a range, particularly bearing in mind the circumstances of the offending and the appellant’s prior record of offending.
In this case the Magistrate noted that the offences were extremely serious. She pointed to the degree of pre-planning and sophistication in the offences as evidenced by the use of false documentation. It was also noted by the Magistrate that the offences were committed over a period of 16 months and that it involved a systematic scheme to effectively raise funds which the appellant used either on his amphetamine addiction or his gambling addiction.
The Magistrate also noted that the maximum penalty for the offence of deception is 10 years imprisonment. The maximum penalty for the offence of attempted deception is two-thirds of the abovementioned penalty for deception.
In my view the period over which the offences occurred was a lengthy period, the occasions were not isolated but demonstrated a systematic approach, and the amounts involved were considerable.
In respect of the breach of trust, it was submitted by the DPP that there was an element of trust in a general sense, given by banks relying on the honesty of applicants when applying for loans. More importantly it was submitted that there was also a public interest in maintaining the availability of these types of loans. It was therefore submitted that general deterrence was an important consideration, as it was in all offences concerning an aspect of breach of trust.
It was also submitted that although the element of breach of trust is lesser in this case than in the more specific examples of an employee or trustee, nonetheless general deterrence is an important factor.
It is not necessary for me to decide in this case whether these offences were committed in circumstances involving a breach of trust. I consider that the circumstances are ones which require the factor of general deterrence to be given important consideration, as was noted by Perry J in the case of Craven v Police,[3] when he was dealing with the obtaining of credit cards by fraud.
[3] Craven v Police [2003] SASC 307.
In short I agree with the Magistrate that the offences, having regard to the circumstances of their commission, were extremely serious and that general deterrence was an important factor.
In relation to the aspect of rehabilitation and personal deterrence, the Magistrate in her reasons also undertook a very detailed consideration of the appellant’s personal circumstances, including his past history of offending, his amphetamine addiction, health and mental issues, lack of family and social support and the prospects of rehabilitation.
Past offending is a significant feature of this case. The appellant has a long antecedent history in four States, commencing in 1970. It includes approximately 23 charges of false pretences, four attempted false pretences, 23 cases of forgery, 19 counts of making false document to prejudice another, and 18 counts of obtaining property by deception.
In 1989 the appellant was convicted of offences of forgery, obtaining property by deception and uttering and received a head sentence of 5 years imprisonment with a non-parole period of 4 years.
In 1997 the appellant received a term of imprisonment of 2 years with a non-parole period of 9 months for committing two counts of false pretences, three counts of false pretences and one count of unlawful possession.
The appellant was convicted of similar offences in 1999 and 2001 and in 2002 he received another custodial sentence, this time of 2 months, for three counts of theft and three counts of using a false document to prejudice another.
In addition to this the appellant has previously been shown leniency when the courts have imposed suspended sentences or community service bonds with supervision. The most recent of those which had been breached was in Victoria on 25 June 2002.
This antecedent criminal history demonstrates, in my view, a continued attitude of disobedience of the law in relation to the same type of offending.
As the court noted in Veen v R (No 2),[4] retribution, deterrence and protection for society may indicate a more severe penalty is warranted.
[4] Veen v R (No. 2) (1988) 164 CLR 465.
Before the Magistrate the appellant submitted that his addiction for amphetamine use was the basis for his criminal history. This submission was not repeated before me. Counsel for the appellant Mr Mead accepted that a large number of offences pre-date the amphetamine use which it was contended, commenced after the death of his mother in 1992. Therefore the offending prior to 1992 does not have behind it any explanation such as drug addiction.
It was submitted by Mr Mead that the Magistrate failed to give sufficient weight to the fact that the appellant’s first five months on the Drug Court programme were relatively drug-free; that the inherent nature of drug rehabilitation includes relapses; the absence of further allegations of offending when on the programme; and the appellant’s developed awareness of his vulnerability to offending behaviour demonstrated by his request that he be withdrawn from the programme and placed back in custody.
I note that the appellant was accepted on to the Drug Court programme on 23 November 2005 when he initially performed well. However in April 2006 the appellant appears to have relapsed into amphetamine use and eventually withdrew himself from the programme. I further note that the appellant also failed to engage the support services when he encountered difficulties whilst on the programme. He was remanded into custody for detoxification and on his release he relapsed after two more reviews. He again failed to seek the assistance of the Drug Court staff and instead provided them with an altered medical certificate to excuse his non-attendance. He then voluntarily withdrew from the programme. It was on this basis the appellant was brought before the court to be sentenced by the Magistrate on 17 November 2006.
On the critical issue of rehabilitation, the Magistrate gave consideration to the appellant’s performance on the Drug Court programme and to his history of offending. Ms Agnew, counsel for the DPP, submitted to me that the Magistrate had considerable knowledge of the appellant’s performance on the Drug Court programme as she had been involved in aspects of his monitoring. The Magistrate noted a clear link between the appellant’s offending and his amphetamine addiction and concluded that the appellant’s failure to overcome his drug problem rendered his prospects of rehabilitation as poor. In sentencing the Magistrate stressed that the appellant was not being punished, nor was his sentence being increased because of his failure to complete the Drug Court programme.
Mr Mead submitted that it was important to note that the appellant had demonstrated an insight into his vulnerable drug addiction and that he should have been given greater credit for this in respect of rehabilitation.
Whilst it may be true that he has shown insight, that must be put into a context in which he had earlier failed to take full advantage of the help that was available to him. The voluntary withdrawal from the programme could also be viewed as simply bowing to the inevitable, as he was failing in regard to his attendance at that programme.
The reality is, that whilst acknowledging that relapses can and do occur, the appellant’s drug addiction has not been overcome and in my view the Magistrate was correct in concluding that his prospects of rehabilitation are, given all of the history, poor.
In my view the starting point of six years with the resultant head sentence given by the Magistrate who made appropriate reductions for the plea and the time spent in custody and home detention, was not manifestly excessive. Many cases of lighter sentences can be distinguished from this case and those apparently involving equivalent head sentences for more serious offences can similarly be distinguished. This case does not, in my view, appear to be outside any sentencing parameters for such offending.
In setting the non-parole period the Magistrate was required to have regard to the same factors relevant to the fixing of the head sentence, but to give greater weight to considerations of rehabilitation. In the light of the appellant’s poor prospects for rehabilitation, the Magistrate imposed a non-parole period which was a significant proportion of the head sentence imposed. This decision was open to the Magistrate in all of the circumstances and I see no error in the setting of that non-parole period.
Having regard to the Magistrate’s remarks and also the helpful submissions that have been made by the appellant’s counsel Mr Mead and by Ms Agnew for the Crown, I do not consider that the sentence imposed was manifestly excessive for the reasons that I have given. The appeal is dismissed.