Sansbury v Police No. Scciv-03-313

[2003] SASC 112

SANSBURY v POLICE
[2003] SASC 112

Magistrates Appeal:  Criminal

1. PERRY J.  (ex tempore)     The appellant appeals against the sentence imposed upon her in the Magistrates Court following her plea of guilty to multiple counts of theft and obtaining by fraud arising out of occasions when she stole credit cards and used them to obtain various goods.

2. There were two complaints.

3. The first of them alleged nine counts, being offences committed between 5 July 2002 and 26 July 2002. The second complaint alleged seven counts committed between 20-26 July 2002.

4. Exercising his powers under s 18A of the Criminal Law (Sentencing) Act 1988, the sentencing magistrate imposed a term of three years imprisonment with a non-parole period of two years. He suspended the sentence upon the entry by the appellant into a bond to be of good behaviour and to be under the supervision of a probation officer for a period of two years with further conditions as to psychiatric treatment.

5. While it is not entirely clear from the record of the court which has been transmitted to this Court, I assume that that sentence was applied as a single sentence with respect to all of the offending alleged in both complaints. However, the magistrate’s sentencing remarks do not make that entirely clear, but I will proceed on that basis.

6. In the notice of appeal, there is one ground only, that is that the penalty was manifestly excessive.

7. The appellant is a 36 year old single woman with three children aged 20, 13 and 6, all from different relationships. At the time of the offending she lived at Maitland, Yorke Peninsula, where she stayed with her sister and her children. She was in receipt of a sole parents pension.

8. The appellant had a relatively minor record of previous convictions. On 20 October 1998 at Kadina she was convicted and fined $30 for disorderly behaviour. On 18 July 2000 at Kadina she was convicted without penalty for offences of disorderly behaviour and unlawful possession. As well, she had some prior convictions for traffic offences.

9. I have been informed that the total amount of property involved with respect to the counts alleged in both complaints is $1,814.94.

10. I have had the benefit of an affidavit from Mr Fauser, the police prosecutor who appeared before the magistrate in the court below. He outlined the facts concerning each complaint. It is unnecessary to go in to them in detail except to explain that the appellant managed to obtain three credit cards belonging to other people, in one instance by stealing a purse which contained the card, in another by stealing the card from a purse, and in the third instance by somehow or other obtaining a card after it had been posted by CPS Credit Union to the intended recipient.

11. All three cards were used by the appellant to obtain, from various shops, goods to the value to which I have referred.

12. The sentencing magistrate had before him a report furnished by a psychiatrist, Mr Craig Raeside, who diagnosed the appellant as suffering from a depressive illness. He described her early home life as marked by family breakdown, longstanding physical, sexual and emotional abuse extending into her teens, and poor school performance. She appears to have developed “significant depressive and anxiety symptoms” in the course of which these offences were committed.

13. I have also had the benefit of an affidavit furnished by Amanda-Jane Lambden who appeared for the appellant in the court below. She submitted to the sentencing magistrate that Dr Raeside’s report was of particular significance and that weight should be placed upon his view as to her mental condition and particularly her depressive illness. She submitted that the offences were in part explained by a need to provide for her children the basic necessities such as food and clothing. She emphasised the cooperation which the appellant had given to the police in that she had made full and frank admissions and assisted the police in the recovery of property.

14. On the hearing of the appeal Mr Bennett, who appeared for the appellant, conceded that having regard to the objective aspects of the offending, it could not be suggested that some sentence of imprisonment was not called for. However, he submitted that the penalty imposed was outside the reasonable range within which the exercise of the sentencing discretion fell to be applied.

15. He emphasised also that the offences were committed over a relatively short period and that they were in part explained at least by the condition that was diagnosed by Dr Raeside.

16. He submitted in particular that it did not appear from the sentence which was imposed that the magistrate had given sufficient allowance for the plea of guilty and cooperation on the part of the appellant, or alternatively that his starting point in determining the sentence must have been too high.

17. Although the learned sentencing magistrate did refer to the appellant’s cooperation with the police, he did so in the context of his finding that there was good reason in which to suspend. The magistrate did not indicate expressly the allowance which he was making for the plea of guilty, and of course there is much authority which suggests that he was under a duty to say so.

18. If a discount of up to 25 per cent had been allowed for, the starting point in the determination of the penalty would have been between three and a half to four years.

19. I have carefully considered the submissions put by Mr Bennett and by Mr Prendergast, who appeared for the respondent. At the end of the day, in my opinion, although the offending was serious and although there are multiple counts, the sentence imposed was excessive to a degree which justifies intervention by this Court.

20. At the same time, I am of the view that some sentence of imprisonment, albeit suspended, was justified.

21. Taking into account all of the circumstances, in my view an appropriate penalty would have been two years imprisonment with a non-parole period of one year.

22. I allow the appeal. I quash the penalty under appeal. I order that there be substituted a penalty of two years imprisonment with a non-parole period of one year, suspended on a bond in the same terms as that imposed by the sentencing magistrate. Given the change in the penalty, it will be necessary for the appellant to attend and enter into another bond which gives expression to the order which I have pronounced.

    [AFTER DISCUSSION WITH COUNSEL]

23. I direct that the fresh bond may be taken in the registry of the Magistrates Court of either Maitland or Kadina and that she present herself to one or other of those registries for that purpose within 14 days of today. Can that be arranged?

24. MR BENNETT:     I undertake to arrange that.