Stewart v Police - [2010] SASC 28

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
STEWART v POLICE
[2010] SASC 28
Judgment of The Honourable Justice White
18 February 2010
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - OTHER MATTERS
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - OTHER MATTERS
Appeal against sentence - appellant sentenced for one count of falsifying a document with the intention to deceive another and thereby to benefit himself, contrary to s 140(4) of the Criminal Law Consolidation Act 1935 (SA) and one count of being in possession of documents which were reasonably suspected of being obtained by unlawful means, contrary to s 41(1) of the Summary Offences Act 1953 (SA) - single sentence of nine months imprisonment imposed for both offences - Magistrate declined to suspend the sentence of imprisonment.
The sentence imposed was very severe - whether the Magistrate sentenced on an incorrect factual basis - whether the Magistrate sentenced the appellant for offences with which he had not been charged - whether the Magistrate erred by failing to suspend, in whole or in part, the sentence.
Held: Magistrate erred in imposing a penalty for offending with which the appellant had not been charged and which was the subject of suspicion only - appeal allowed - appellant re-sentenced to a single sentence of three months imprisonment for both offences - not appropriate to suspend the term of imprisonment.
Criminal Law Consolidation Act 1935 (SA) s 140; Summary Offences Act 1953 (SA) s 41; Criminal Law (Sentencing) Act 1988 (SA) s 10; Financial Transactions Reports Act 1988 (Cth); Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), referred to.
R v Reiner (1974) 8 SASR 102; R v Godfrey (1993) 69 A Crim R 318; R v Taddeo (1993) 67 A Crim R 338; R v Adami (1989) 51 SASR 229; R v Mangelsdorf (1995) 66 SASR 60; R v Shrestha (1991) 173 CLR 48, applied.
Thai v Director of Public Prosecutions (No 3) [2009] SASC 97; Police v Wang [2007] SASC 228, discussed.
R v Peel [2009] SASC 280; R v Pham [2005] NSWCCA 94; R v Khem (2008) 186 A Crim R 465; R v Do [2005] NSWCCA 258; R v Qin [2008] NSWCCA 189, considered.

STEWART v POLICE
[2010] SASC 28
Magistrates Appeal

WHITE J: This is an appeal against a sentence imposed for two offences.
On 7 December 2009, the appellant committed a contravention of s 140(4) of the Criminal Law Consolidation Act 1935 (SA) (CLCA) by falsifying a document with the intention to deceive another and thereby to obtain a benefit for himself. The appellant filled out a Westpac deposit slip using the name “Mark Gallick” in order to use an account held with Westpac in that name. The name “Mark Gallick” was false. The appellant had previously opened the account with Westpac using that false name. By depositing a cheque made out to “Mark Gallick”, the appellant was then able to make a cash withdrawal of $3,735. The maximum penalty for this offence was imprisonment for 10 years.
On 16 December 2009 the appellant had in his possession documents which was reasonably suspected of having been obtained by unlawful means, in contravention of s 41(1) of the Summary Offences Act 1953 (SA). The documents comprised a Californian driver’s licence in the name of Bill Greg of 420 Main Street, Palm Springs; a text and identification card in the name of Mark Gallick of 420 Main Street, Austin, Texas; and a Victorian driver’s licence in the name of George G Stewart of 195 Gillies Street, Ballarat (but for the middle initial, this document recorded correctly the appellant’s own name and date of birth). As I understand it, each of these documents contained a photograph of the appellant. In addition, the appellant had in his possession a Westpac debit card in the name of Mark Gallick, and two cheques, one made out to Mark Gallick for $644, and one made out to Anthony Bateman for the sum of $8,500. It can be seen that the appellant had the means of establishing and using a false identity. The maximum penalty for this offence was imprisonment for two years or a fine of $10,000.
The Sentence
A Magistrate imposed a single sentence for both offences of imprisonment for nine months and refused to suspend the sentence. Had it not been for the appellant’s plea of guilty, the sentence would have been imprisonment for 12 months.
The Circumstances of the Offending
The appellant is a 24 year old Canadian with no previous convictions. He and his wife have an 18 month old child. He first came to Australia as a tourist in 2007. It was at that time that he obtained the Victorian driver’s licence. The appellant and his wife returned to Australia, again on a tourist visa, on 17 November 2009. The dishonest dealing offence involving Westpac was committed just under three weeks later, on 7 December 2009. The appellant told Police that in that three week period he had worked as a bitumeniser of driveways.
The Magistrate said that the appellant was a member of group of at least seven persons. The activities of the group had come to the attention of the Office of Consumer and Business Affairs and of the Police. There is a suggestion that the group may have been involved in some kind of exploitation of consumers. The drawer of the cheque which the appellant deposited in the Westpac account of “Mark Gallick” on 7 December 2009 told Police that he had agreed, on an approach to him, to have his driveway bitumenised. He said that when he went to pay, the bitumeniser told him that the cost was triple the amount originally quoted and that he only accepted cash. It was after negotiation that he provided the cheque of $3,735 made out to “Mark Gallick”. The bitumeniser on that occasion appears to have been someone other than the appellant, but he (the appellant) was the person who attended at the Westpac branch to deposit the cheque into the account of “Mark Gallick”.
The Magistrate said:
… When police made enquiries at the Motel you were staying at it became clear that you were part of a group of at least seven people who were in Adelaide apparently to commit fraudulent acts in order to benefit yourselves or some other person. I am not given much of the detail of what that fraudulent activity involved. It is submitted that you did not know much detail about the intended fraudulent acts. I reject that. You were part of what was clearly a gang which had come to Adelaide in order to commit fraudulent acts by defrauding the financial institutions of this State for your own benefit. When police attended at the Motel you were staying at all the other members of the gang left immediately. I have no doubt at all that had you not been caught by the police you would have continued with your fraudulent activities in this State and most probably in other States. You came to this State to cheat the people of South Australia.
You are a foolish young man. It might be that you have no prior convictions for this type of offending but you came here with the intention to defraud.
It appears to have been common ground at the time of sentence (and it was common ground on the appeal) that the appellant is likely to be deported as soon as he is released from custody. The Magistrate told the appellant that deportation is “less than you deserve”. He said:
… I take the view this is a very serious offence committed against the laws of this State by a foreign national. I am aware that the immigration people intend to deport you. I think that is less than you deserve. I need to impose a penalty that will deter you particularly from ever repeating this type of offending but will also deter others who are part of your gang from this type of offending. They should know that if they get caught there will be a very serious consequence for their dishonest activities.
The Severity of the Sentence
The appellant submits that the sentence of 9 months is manifestly excessive. In the alternative, he submits that the Magistrate should have found good reason to suspend the sentence wholly or, in the alternative, at least in part.
The sentence of imprisonment of nine months in this case, after the reduction of three months for the pleas of guilty, is undoubtedly a very severe sentence. That is particularly so having regard to the facts that the appellant is a young man, has no previous convictions, and that his dishonest conduct on 9 December 2009 did not result in loss to Westpac.
In support of the submission that the sentence is too high, the appellant’s counsel referred to two authorities involving a consideration of sentences imposed for the offences of dishonest dealing. In Thai v Director of Public Prosecutions(No 3),[1] this Court allowed an appeal against sentence and ordered that a sentence of three years of imprisonment be suspended. The appellant in Thai had been sentenced for 15 contraventions of s 140(4) of the CLCA. Those offences were part of a continuing course of conduct committed over a period of eight months involving the falsification of cheques. As a result, the offender had obtained some $68,000, but if his plans had succeeded, he would have obtained more than $160,000. The sentencing Magistrate had imposed a sentence of three years imprisonment with a 14 month non-parole period and had refused to suspend it. The appellant had not challenged the sentence of imprisonment itself but submitted successfully that the sentence should have been suspended.
[1] [2009] SASC 97.
In Police v Wang[2] this Court refused, on a prosecution appeal, to interfere with an effective sentence of four months imprisonment imposed for 11 contraventions of s 140(4). The contraventions involved the provision of false documents in relation to home loan applications for amounts totalling some $200,000. Although David J considered the sentence merciful, he did not regard it as manifestly inadequate.
[2] [2007] SASC 228.
A comparison of the circumstances of one case with another is notoriously difficult. No two cases are exactly alike. Further, it is very difficult for this Court to be fully aware of all the matters taken into account by a previous court when sentencing an earlier offender. It is for this reason that comparison with earlier decisions is generally unhelpful. However, to the extent that the decisions in Thai and Wang do provide assistance, they tend to confirm that the present sentence is very high.
The appellant submitted that the Magistrate had proceeded on a mistaken factual basis in concluding that he was a member of a group of at least seven people which had come to Adelaide in order to commit fraudulent acts. He rejected a defence submission that the appellant did not know much detail about the intended fraudulent acts.
I am not satisfied that the Magistrate made the mistakes which this submission attributed to him.
As part of her submissions, the prosecutor told the Magistrate that, at the time of his arrest on 16 December 2009, the appellant had been accompanied by another man, who had run away at the time of the arrest. In addition, shortly after his arrest, a number of persons of different nationalities attended at the motel at which they and the appellant had been staying, and emptied a number of rooms, including that of the appellant. They fled when the police were called. In addition, defence counsel made submissions to the Magistrate to the effect that the appellant had fallen in with the “wrong crowd” and that he had become “entangled in a scheme in which he was a minor player”. Further, as observed earlier, the appellant was not the particular bitumeniser who had performed the work for which the cheque for $3,735 was made out to “Mark Gallick” and yet he deposited that cheque into the account which he had opened in that name. In addition, at the time of his arrest, the appellant was in possession of two cheques, one made out in the false name of “Mark Gallick” and one made out to a name other than the appellant’s.
Having regard to these matters in combination, and the inferences which arise from them, I do not consider that the factual conclusions of the Magistrate concerning the appellant’s membership of a group or his knowledge of the nature of the activities contemplated by the group were wrong.
A more significant matter, however, is that the appellant was to be sentenced only for the two offences with which he had been charged and to which he had pleaded guilty. This was not a case in which the appellant had requested that the Court take other offending into account. Of course, proof that the offences for which the appellant was to be sentenced occurred in the course of continuing offending conduct would have been relevant to the sentencing decision. Section 10(1)(c) of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA) provides that when an offence forms part of a course of conduct consisting of series of criminal acts of the same or similar character, the sentencing court should have regard to that course of conduct. A court may do so in a number of ways. The charged offences may take their colour from, and their character be affected by, the context in which they were committed.[3] Proof that an offence was committed as an incident of a course of continuing criminal conduct may indicate a degree of persistence by the defendant in criminal conduct and may also indicate that the offender cannot be regarded as having an unblemished character.[4] However, these principles apply only when the other offending is admitted or is otherwise proven. Even in such cases, a defendant is not to be punished for uncharged earlier conduct.
[3] R v Taddeo [1993] SASC 4059; (1993) 67 A Crim R 338 at 339; R v Peel [2009] SASC 280 at [35].
[4] R v Peel [2009] SASC 280 at [35] – [36].
In the present case there were clearly suspicions that the appellant and his group had engaged in other offending conduct involving the exploitation of consumers. This seems to explain the involvement of the Office of Consumer and Business Affairs. The prosecutor told the Magistrate that the charges before the Court were “the tip of the iceberg” and that there were other offences of a similar nature currently being investigated. However, the prosecutor conceded that the police had no evidence at the time of other dishonest conduct.
The appellant did not himself make any admission that he had engaged in other criminal conduct with which he had not been charged. Accordingly, he was not be sentenced for offending, the commission of which was only suspected or which had not yet occurred.
Even if other uncharged offences had been admitted, or otherwise proven, they could not have the effect, on established principles, of increasing the sentence which was otherwise appropriate. Their effect may have been to preclude the Court extending leniency, so as to reduce the sentence which may otherwise have been possible.[5]
[5] R v Reiner (1974) 8 SASR 102 at 105; R v Godfrey (1993) 69 A Crim R 318 at 332-3.
The Magistrate seems to have been influenced in a significant way by his view that the appellant had come to Adelaide to commit fraudulent acts. In the passages from his sentencing remarks quoted above, the Magistrate mentioned that purpose some four times.
The appellant was not to be sentenced for dishonest intentions upon which he had not acted. The mere intention to commit a crime, without any accompanying act, is not a crime. The appellant was not charged with any offence of attempt.
The appellant’s intentions with respect to the false identity documents did provide part of the context in which the unlawful possession offence was committed. They helped explain the purpose of his possession, and added to the culpability of that possession. But the appellant could not, for the reasons already given, be punished for conduct which, although intended, had not yet been attempted or carried out.
Although the Magistrate did not say so expressly, his sentencing remarks give rise to the very strong impression that the sentence he imposed was to punish the appellant not only for the two offences which he had committed, but also for his coming to this State with the intention to commit fraudulent activity, and for his intentions while here. This is particularly evident in the Magistrate’s statement that the appellant had come to this State “to cheat the people of South Australia” and his statement that he would impose a penalty “that will deter you particularly from ever repeating this type of offending [and] will also deter others who are part of your gang from this type of offending”.
That leads to the conclusion that the Magistrate has made a sentencing error. He has sentenced the appellant for conduct with which he was not charged and to which he had not pleaded guilty. Accordingly, the appeal must be allowed and the appellant re-sentenced.
Re-sentence
The offence of dishonest dealing was serious. It involved some premeditation, as the appellant had previously established the account in the name of “Mark Gallick”. Westpac was deceived as to the true identity of the person with whom it was dealing.
The unlawful possession offence was also serious. The appellant had equipped himself with the means of establishing more than one false identity. He had the means to mislead others as to his true identity. Our community depends very much upon its members, and those who visit it, being the persons they purport to be. The conduct of public, commercial, financial and social intercourse within the State relies very much upon the members of the community, and visitors to it, having a single, genuine identity and upon citizens being able to rely upon the truth and accuracy of proffered identifications. Honesty in dealing is an essential part of a free and civilised society.[6] The enforcement of the law, vindication of rights, and the obtaining of remedies for wrongs depends upon it being possible for a wrongdoer to be identified and traced.
[6] The obligations under the Financial Transactions Reports Act 1988 (Cth) and the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) are two expressions of this principle.
The appellant’s possession of false identifications had the potential to undermine these essentials, and to reduce the confidence of members of the community in the conduct of their relationships with other generally.
On the hearing of the appeal, the appellant tendered by consent an affidavit sworn by his wife. The affidavit deposed to matters which had not been put before the Magistrate. In substance, the appellant’s wife deposed to the difficulties which his continuing incarceration are causing to her and her son. She also deposes that she and the son must leave Australia by 16 February 2010 upon the expiry of their tourist visa.
The appellant’s wife and son have been dependent upon him for financial support. It is readily understandable that the separation from him, the loss of his support, the uncertainty as to their futures while the appellant remains incarcerated, and the more extended separation once they leave Australia while the appellant remains in custody here will cause difficulties.
Section 10(1)(n) of the CLSA provides that a sentencing court should have regard to the probable effect that any sentence under consideration would have on dependants of the defendant. However, the cases indicate that the effect on dependants may be taken into account to ameliorate a sentence in exceptional cases only.[7] After a review of the authorities in R v Carpentieri[8] Doyle CJ (with whom Martin and Besanko JJ agreed) accepted a submission that:
… At common law and under the Sentencing Act, a court must have regard to the probable effects of a sentence on the dependants of the defendant. … However, the effect of the cases referred to is that ordinarily hardship to a dependant will not be a reason to mitigate or reduce a penalty, but in exceptional cases that hardship may be a reason to do so.[9]
[7] R v Adami (1989) 51 SASR 229 at 232-3; R v Mangelsdorf [1995] SASC 5328; (1995) 66 SASR 60 at 70.
[8] [2001] SASC 420; (2001) 81 SASR 164.
[9] Ibid at [19], 168.

Although I am sympathetic to the difficulties which the appellant’s wife now faces, I do not consider that the present case is of an exceptional kind, so as to warrant some reduction in the sentence which is otherwise appropriate for the appellant.
There was some discussion at the hearing of the appeal about how account is to be taken of the pending deportation of the appellant. The Court was not told of the reason for the deportation, but it was not suggested that it had been prompted by the subject offending. That is, the appellant did not contend that the deportation would itself be part of the punishment visited upon him for his offending.
It is plain enough that the non-citizen status of the appellant is not relevant to the question of whether a custodial sentence, rather than some other form of sentence, should be imposed, or to the length of any sentence of imprisonment which ought to be imposed. If it was relevant, it would mean that the sentencing process could discriminate between two offenders according only to the their places of origin, or to their citizenship status.[10]
[10] R v Shrestha (1991) 173 CLR 48.
Differing considerations may, however, apply in relation to the fixing of a non-parole period[11] or in relation to suspension, whether in whole or in part of a custodial sentence.[12] In R v Shrestha,[13] Deane, Dawson and Toohey JJ held that there was no sentencing principle making it inappropriate for a non-parole period to be fixed for a foreign offender who has no ties in Australia and whose sole purpose in entering Australia was to commit serious crimes. Their Honours went on to say that the likelihood of deportation, the lack of ties with Australia and the difficulty or even impossibility of effective supervision and enforcement of parole condition are factors which will properly be taken into account by a parole authority when considering whether the prisoner should be released on parole. Their Honours held that such factors did not compel a sentencing Judge to decide that it is inappropriate that such an offender should be eligible to be considered for parole.[14] Their reasons seem to leave open the possibility that factors concerning suppression and enforcement of parole conditions may be relevant considerations in an appropriate case.
[11] CLSA s 32.
[12] CLSA s 38.
[13] (1991) 173 CLR 48.
[14] Ibid at 73.
This was the view taken by Brennan and McHugh JJ who dissented in the result in Shrestha:
That is not say that the court discriminates against non-citizens, but the fact that an offender is not and is not likely to become a resident is material in considering whether there is any public benefit by way of rehabilitation to be gained by an early release to conditional freedom. If an offender, who is not and is not likely to become a part of the Australian community, comes to this country and attacks the peace and order of the community by the commission of a serious crime, the public interest may be served by imposing a custodial sentence on him, but will seldom be served by his early release in favour of his “rehabilitation through conditional freedom”.[15]
[15] Ibid at 64.
Since Shrestha was decided in 1991, the Courts of Criminal Appeal in some States have held that the prospect of deportation is irrelevant as a sentencing consideration. See for example R v Pham;[16] R v Khem;[17] R v Do;[18] and R v Qin.[19] On their face, these authorities appear to go beyond the majority position in R v Shrestha which, as seen earlier, was only to the effect that the prospect of deportation did not compel a sentencing Judge to decide that it would be inappropriate to fix a non-parole period for a foreign offender. Given the view which I have reached as to the appropriate sentence to be imposed, it is not necessary to examine these questions further.
[16] [2005] NSWCCA 94 at [13].
[17] [2008] VSCA 136 at [31]; (2008) 186 A Crim R 465.
[18] [2005] NSWCCA 258 at [24].
[19] [2008] NSWCCA 189 at [38].
Although, the reasons in Shrestha were directed to the fixing of non-parole periods, the principles discussed are also applicable, in my opinion, to the making of a decision concerning suspension of a custodial sentence.
The appellant was arrested on 16 December 2009. It is to his credit that he pleaded guilty to the two offences on the next day.
I referred earlier to factors touching upon the seriousness of the offending. I agree with the Magistrate that a single sentence under s 18A is appropriate. I also agree with the Magistrate that the offending is so serious that a sentence of imprisonment is appropriate. I would take as a starting point a sentence of four months. The greater amount of that sentence should be attributed to the contravention of s 140(4) of the CLCA.
The appellant should be given credit for his pleas of guilty which, as I noted earlier, were made on the day following his arrest. That means that a sentence of imprisonment of three months should be imposed in lieu of that imposed by the Magistrate. That sentence should have been taken to have commenced on 16 December 2009, being the date upon which the appellant was taken into custody.
I have given careful consideration to the question of suspension. I have reached the conclusion that there is not good reason to suspend the sentence. I take into account in particular the seriousness of the offending and the pre-meditation involved in the contravention of s 140(4) but have ignored the prospect of the appellant being deported. The personal and general deterrent effect of the sentence will be best achieved by the appellant serving the whole of the sentence in custody.
Conclusion
For the reasons given above, I allow the appeal. I set aside the sentence of nine months imprisonment imposed by the Magistrate. I impose a sentence of imprisonment for three months and direct that the service of that sentence be taken to have commenced on 16 December 2009. The orders of the Magistrate concerning fees, costs and the Victims of Crime Levy are to stand.