Sweeney v Corporate Security Group

Case [2003] SASC 324

SWEENEY v CORPORATE SECURITY GROUP
[2003] SASC 324

Magistrates Appeal:  Criminal

  1. PERRY J. The appellant appeals against the sentence imposed upon him in the Magistrates Court sitting at Adelaide following his plea of guilty to a charge that on 23 October 2002 at Golden Grove he knowingly obstructed or hindered a Commonwealth public official in the performance of his functions, contrary to s 149.1(1) of the Criminal Code Act 1995 (Cth).

  2. This is the second occasion upon which the appellant has been convicted of an offence against the laws of the Commonwealth. The first occasion followed his plea of guilty to stealing, between May 2000 and January 2001, $10,500 from the Australian Postal Corporation.

  3. He was dealt with for that offence in the Magistrates Court on 26 July 2001. The sentencing magistrate imposed a sentence of 8 months imprisonment but released the appellant forthwith upon his entry into a good behaviour bond for a period of 18 months.

  4. The present offending occurred towards the end of the term of that bond.

  5. The same magistrate who had dealt with the appellant in 2001 imposed the penalty now under appeal.

  6. On the present offending, which I will call the breaching offence, the sentencing magistrate imposed a sentence of 9 weeks imprisonment, but made provision for an early recognisance release after the appellant had served 4 weeks of that sentence. The recognisance was for a term of 18 months, during which time the appellant is to be under the supervision of a community corrections officer.

  7. As for the earlier sentence, pursuant to s 20A(5)(c)(i) of the Crimes Act 1914 (Cth) (“the Crimes Act”), the magistrate ordered that the appellant be imprisoned for that part of the sentence of imprisonment previously fixed that he had not served at the time of his release.

  8. That was, of course, the whole of the 8 months sentence.

  9. The 4 week custodial component of the penalty for the breaching offence was directed to be served cumulatively on the activated sentence of 8 months.

  10. So that in the result, the head sentence now applicable to the appellant is 8 months and 9 weeks, but the appellant stands to be released on recognisance after serving 8 months and 4 weeks.

    Grounds of appeal

  11. The grounds of appeal set out in the notice of appeal are as follows:

    “1.The Learned Special Magistrate erred in imposing a sentence of 9 weeks imprisonment in that the sentence is manifestly excessive.

    2.The Learned Sentencing Magistrate erred in permitting the revocation of the s 20(1)(b) order and ordering (pursuant to s 20A(5)(c) Crimes Act) that the appellant be imprisoned for that part of the sentence of imprisonment fixed under s 20(1)(b) that he had not served at the time of his release.

    Particulars

    A.     The Learned Sentencing Magistrate failed to give sufficient weight to:

    (i)the circumstances in which the offence was committed in particular that there was no loss to the Commonwealth or benefit to the appellant;

    (ii)the other sentencing options available to the…

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AGLC
Sweeney v Corporate Security Group [2003] SASC 324
Case
[2003] SASC 324
Decision Date

CaseChat Overview and Summary

The appellant, Sweeney, appealed against the sentence of imprisonment imposed upon him by the Magistrates Court. The sentence arose from his admission of falsifying Armaguard Cash Collection Service slips to conceal a $2,200 cash discrepancy. Sweeney was sentenced to 8 months imprisonment, and his appeal was heard in the Supreme Court. The central issue in the appeal was whether the sentence was manifestly excessive or inappropriate. This was assessed in light of the appellant's personal circumstances and the nature of his offending. The court also considered whether the evidence presented on appeal warranted a rehearing of the case.

The Supreme Court held that the sentence was not manifestly excessive or inappropriate. It noted that the appellant had falsified the cash collection slips to conceal the discrepancy, which was a serious offence involving dishonesty. The court acknowledged the appellant's personal circumstances, including his past drug and alcohol abuse and recent gambling behaviour, but also highlighted his remorse and efforts to improve his life. The court concluded that the sentence was proportionate to the offence and took into account the appellant's personal circumstances. The fresh evidence presented on appeal did not change the court's view of the sentence's appropriateness.

The Supreme Court dismissed the appeal and affirmed the sentence imposed by the Magistrates Court. The court found that the 8-month imprisonment sentence was justified given the seriousness of the offence and the appellant's personal circumstances. The evidence presented on appeal did not warrant a rehearing of the case or a reduction in the sentence.

Orders

Orders of the court

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Background

Background to the litigation

The order that he serve the term of 8 months imprisonment was an exercise of the power conferred by s 20A(5)(c)(ic)(i) of that Act.Factual background On the hearing of the appeal I had before me an affidavit sworn by Ms Michelle Barnes, solicitor, who appeared on behalf of the Commonwealth DPP in the court below and on the hearing of the appeal before me. In her affidavit she summarises the submissions detailing the circumstances of the offending which she put to the sentencing magistrate. What she had to say in the affidavit was not challenged by the appellant. For present purposes, it is convenient to summarise her account as it appears in the affidavit. At the time of the offending the appellant was an employee of the Golden Grove Village licensed post office which was managed by his father, John Raymond Sweeney. John Sweeney’s company, Johelen Pty Ltd (“Johelen”), is the licensee of the post office. On 22 October 2002 the postal manager from the Licensed Post Office Support Centre contacted John Sweeney to advise him that he would be carrying out an audit of the post office the following day. The licence agreement with Johelen provided that such audits might be carried out by Australia Post on one day’s notice to the licensee. Both the appellant and his father were present when the audit was taken on 23 October 2002. Two discrepancies were uncovered: the first being a $1,000 cash shortfall discovered on the day of the audit; the second being a shortfall of $2,200 discovered the day after, that is, on 24 October 2002. As for the $1,000 discrepancy, no charge was laid in respect of that and there was no adverse allegation made against the appellant as to that amount. As for the $2,200 shortfall, this concerned money involved in a transaction with Armaguard Cash Collection Service (“Armaguard”). It appears that Armaguard withdrew cash from an account with the post office and deposited cash in bags in a safe at the post office. The sentencing magistrate was told that the appellant had prepared two different Armaguard “slips” during the afternoon of 22 October 2002. They are carbon-backed slips on which the exact denominations of cash in each bag are recorded. On the day of the audit, the defendant gave Armaguard a slip stating that one of the bags contained $15,945 in cash, which was the correct amount. However, on the slip he gave to the auditors (which was supposedly a carbon copy of the one that went to Armaguard) he recorded the amount to be $18,145. The effect of this was to conceal from the auditors the $2,200 cash discrepancy. As part of the audit, the auditors contacted Armaguard, and on 24 October 2002 the auditors became aware of the discrepancy between the slip which the defendant had shown to them and the slip he had given to Armaguard. The auditors then contacted Australia Post Corporate Security Group and reported the discrepancy. Subsequently the appellant was interviewed. He admitted falsifying the Armaguard Cash Collection Service slips the day before the audit in order to conceal the $2,200 cash discrepancy. He claimed that he only did this because his father had just paid back about $2,500 worth of deficiencies; that his father was “very sick”; and that he did not want his father to “have a bloody heart attack” if he found out that a further $2,200 was missing.

Evidence

Evidence Before The Court

Later on the same day, that is, on 20 May 2003, the magistrate delivered lengthy remarks on penalty before imposing the sentence now under appeal.Fresh evidence on appeal At the outset of the hearing of the appeal, Mr Edwardson, who appeared for the appellant, asked the Court to receive what he described as “further evidence”. This took the form of a report by a psychiatrist, Dr Craig Raeside, who examined the appellant on 11 June 2003, and a letter dated 28 August 2003 from the Registrar of the Department of Mathematical and Computer Sciences at the University of Adelaide. I reserved the question whether I would admit this evidence. Dr Raeside’s report confirms that the appellant has experienced what he described as “a generally unremarkable past history apart from significant drug and alcohol abuse and more recent gambling behaviour”. He was unable to find any evidence of a current psychiatric disorder. However, Dr Raeside expressed the view that the history suggested that the appellant had experienced an Adjustment Disorder with Mixed Anxiety and Depressed Mood upon his incarceration, which was for eleven days before he was released on bail pending the appeal. Dr Raeside thought that this condition had “subsequently settled”. Dr Raeside thought that if the appellant was again to be incarcerated he would find the experience “quite unsettling and may well develop a significant depressive illness”. The letter from the University of Adelaide confirmed the progress which the appellant had made following his enrolment at the beginning of 2003 in the undergraduate course in mathematical and computer sciences. The letter confirms that his results, which were quite good before his imprisonment, fell off sharply after his incarceration. The receipt of the further evidence was opposed by the respondent. The receipt of further evidence on the hearing of an appeal from the Magistrates Court in criminal matters is governed by s 42(4) of the Magistrates Court Act 1991. This provides:“(4)On an appeal, the appellate court may, if the interests of justice so require, rehear any witnesses or receive fresh evidence.” SCR r 97.18(b) permits the court on the hearing of an appeal of this kind in its discretion to “receive further evidence upon any question of fact”. There may be a distinction between “further evidence” and “fresh evidence”, but the authorities so far do not seem to have drawn such a distinction. The question of fresh evidence on an appeal against sentence was addressed in R v Smith.[6] In that case, King CJ (Cox and O’Loughlin JJ concurring) observed:[7]“The proper purpose of fresh evidence on an appeal against sentence is to bring before the court facts which were in existence at the time of the imposition of sentence but were not known to the sentencing judge or to explain facts which were before the sentencing judge so as to put them in a new light. It is not open to the Court of Criminal Appeal to intervene upon the basis of events which had occurred since the imposition of sentence: R v O’Shea[8] and fresh evidence is therefore not receivable to establish the occurrence of such events. A clear distinction is necessary between fresh evidence as to events occurring before sentence and evidence as to events occurring after sentence.”[6] (1987) 44 SASR 487.[7] Ibid 588.[8] (1982) 31 SASR 129.

Decision

Reasons for decision

PERRY J
I so order.JUDGMENT CITATIONSLISTED IN ORDER OF APPEARANCE IN JUDGMENT1. Section 16A(2)(m) refers to “the character, antecedents, cultural background, age, means and physical or mental condition of the” defendant. The considerations set out in s 16A bear a close similarity to the tabulation of relevant factors which appears in s 10 of the Criminal Law (Sentencing) Act 1988 (SA).2. For present purposes s 19AF(1) is not relevant.3. Section 42(1)(d).4. [2000] SASC 106.5. (1997) 95 A Crim R 391.6. (1987) 44 SASR 487.7. Ibid 588.8. (1982) 31 SASR 129.9. (Unreported) Doyle CJ, 16 June 1999, judgment No [1999] SASC 270.10. Par 20 and par 21.11. (1998) 197 CLR 172.12. (2002) 84 SASR 403 (Gray J) and 84 SASR 416 (Full Court).13. (Unreported) Gray J, 13 August 2003, judgment No [2003] SASC 266.14. (1981) 27 SASR 481.15. Ibid 485.16. Ibid 488.17. (1979) 21 SASR 424.18. (2000) 175 ALR 315.19. Ibid 333.20. Bagaric, “Suspended Sentences and Preventive Sentences: Illusory Evils and Disproportionate Punishments” (1999) 22 University of New South Wales Law Journal 535 (Bagaric).21. Bagaric at 538.22. Bagaric at 541.23. Great Britain, Home Office, “Crime, Justice and Protecting the Public” (1990) Cm 965 at [3.20]-[3.21].24. (1976) 13 SASR 516.25. Ibid 527.26. (1973) 6 SASR 265.27. (1973) 6 SASR 298.28. (1974) 8 SASR 465 per Walters J at 468.29. (1992) 57 SASR 213 at 216-217.30. [1998] 1 VR 601; (1997) 91 A Crim R 222.31. Ibid 607-608; 229.32. Citing Elliot v Harris (No 2) (supra) and Gillan (1991) 54 A Crim R 475 at 480.33. (2002) 130 A Crim R 518.34. (Unreported) Perry J, 15 August 2003, judgment No [2003] SASC 274.35. (1996) 66 SASR 530 at 535.36. (1936) 55 CLR 499 at 505, as recently affirmed in Dinsdale v R (2000) 175 ALR per Gleeson CJ and Hayne J at 317, par [3].37. See R v Weaver (1973) 6 SASR 265 at 267 (Full Court) and Graham v Miller (unreported) Mullighan J, 7 July 1993, judgment No (1993) S4040. But see Benns v Judd (1992) 58 SASR 295.38. See, for example, Davies (1996) 88 A Crim R 226 per Doyle CJ at 231, Chaloner (1990) 49 A Crim R 370 and Nath (1994) 177 LSJS 360 per Perry J at 364.39. (Supra) 175 ALR at 337, par [88].40. See, for example, Drewett v Rowbottom (unreported) White J, 2 November 1987, judgment No 241.41. [2002] TASC 108.42. (1987) 47 SASR 303.43. (1993) 65 A Crim R 595.44. (1992) 59 SASR 400.45. Criminal Law (Sentencing) Act 1988, s 58.46. Ibid at 304.47. (1992-1993) 59 SASR 403.48. Ibid at 4.49. (1997) 95 A Crim R 391 at 398 and 399.50. See R v Chandra (unreported) Court of Criminal Appeal, 17 February 1998, judgment No S6554.

Ratio Decidendi

Legal Principle Established

Established by: PERRY J

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