TAYLOR v Police - [2010] SASC 67

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
TAYLOR v POLICE
[2010] SASC 67
Judgment of The Honourable Justice Duggan
26 March 2010
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - RELEVANT FACTORS
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - RESPONSE TO CHARGES - PLEA OF GUILTY
Appeal against sentence – appellant pleaded guilty in Magistrates Court to making false representations to police contrary to s62(1)(a)(i) of the Summary Offences Act 1953 (SA) – Magistrate sentenced the appellant to nine months’ imprisonment suspended after three months upon entering into recognisance to be of good behaviour – whether sentence manifestly excessive – whether Magistrate made sufficient reduction by reason of guilty plea – whether Magistrate's error in calculating appellants age could have affected length of sentence – whether Magistrate gave weight to the mental state of the appellant – whether Magistrate placed undue emphasis on deterrence and failed to give due weight to appellant's previous good character.
HELD: appeal dismissed – sentence not manifestly excessive – sufficient reduction made for guilty plea – error in reference to age could not have affected length of sentence – Magistrate gave proper weight to considerations bearing on mental state of appellant – appropriate emphasis on deterrence given – in the circumstances punitive and deterrent aspects of sentencing process of considerable weight – Magistrate properly took into account previous good character and other favourable factors.
Summary offences Act 1953 (SA) s 62(1)(a)(i), referred to.

TAYLOR v POLICE
[2010] SASC 67
Magistrates Appeal: Criminal

DUGGAN J: The appellant was charged with an offence against s 62(1)(a)(i) of the Summary Offences Act 1953 (SA). The complaint alleged that between the 6 and 8 August 2008 at Port Adelaide the appellant “made a false representation to a member of the police force knowing the representation to be false and that the representation was such as would reasonably call for investigation by the police”.
After pleading guilty to the offence the appellant was sentenced to imprisonment for nine months. He was required to serve three months of this term of imprisonment for three months and the remainder of the sentence to be suspended upon the appellant entering into a recognisance to be of good behaviour for six months from the time of his release from prison. He was also ordered to pay $21,966 by way of compensation for the expense involved in the police investigation which resulted from his false report.
The appellant has appealed against the sentence on the ground that it is manifestly excessive.
The appellant is 50 years of age. He has four children, three from his most recent relationship and one child from a previous relationship. Jacob, a son from the most recent relationship, was 10 years of age at the time of the offence.
On the morning of 6 August 2008 the appellant reported to the Port Adelaide Police Station that his son, Jacob, was missing. He said that the boy had been living on the appellant’s yacht which was moored at Port Adelaide. The report resulted in an extensive search by the police over the following three days, including two underwater searches conducted by the police Water Operations Unit. The search and investigation involved 30 police officers at one time or another.
During the search the police examined the appellant’s telephone records. This led them to visit the premises of a woman, residing at Sturt, who has been known to the appellant for approximately 19 years. At this residence the police found Jacob covered by a blanket inside of a wardrobe. The woman told police that on the day before the appellant reported his son missing he asked her to look after him for a few days and left the boy at the house later that evening.
When interviewed by the police the appellant denied that he had asked anyone to look after his son. He denied any knowledge of the Sturt address.
It transpired that the appellant was involved in a custody dispute at the time of the offence. Jacob had been living with him and the appellant had removed the boy from school and was educating him at home. The appellant became aware that a lawyer appointed to act in Jacob’s interests in the custody proceedings was about to recommend that the child be returned to the custody of his mother and recommence normal schooling. The appellant was sentenced on the basis that he had made a false report to the police as part of a scheme to thwart the process of the Family Court.
It was argued by counsel for the appellant that an insufficient reduction had been made to the sentence by reason of the appellant’s plea of guilty. The Magistrate reduced the sentence by one month, a reduction of 10 per cent, as a result of the appellant’s plea. The Magistrate observed that, as the plea was very late, a smaller than usual discount was appropriate.
The appellant’s first appearance in court on this matter was on 11 August 2008. A series of pre-trial conferences followed and on 28 January 2009 the matter was set down for a trial to take place on 30 April 2009. According to the police prosecutor’s affidavit, he informed the Court on this occasion that Jacob did not want to give evidence against his father and that the prosecution would have difficulty proving its case without him. The prosecutor said that he applied for an adjournment in order to seek instructions as to whether the charges should proceed. He denied an allegation in defence counsel’s affidavit that he told the Court on this occasion the charges were likely to be withdrawn.
On 29 June 2009 the prosecutor told the Court that the charges were likely to proceed but that Jacob had not been proofed as at that date. On 7 September 2009 a new trial date of 5 November 2009 was set.
The appellant did not enter a plea of guilty until the day of trial when the prosecution witnesses were at the court ready to give evidence.
It is evident that the appellant was not prepared to intimate a plea of guilty until the day of trial. It is clear that the plea was not entered out of remorse and, although it saved the witnesses from giving evidence, it did not relieve them of their anticipation that they were to give evidence until the last moment. In my view, the circumstances did not warrant a reduction in sentence greater than was allowed by the Magistrate.
Next, counsel for the appellant pointed out that the appellant was 50 years of age at the time of sentencing whereas the Magistrate said in his sentencing remarks that the appellant was 40 years of age. It was argued that this was an error which may have affected the length of sentence on the basis that the appellant had been a person of good character for 10 years longer than he had been given credit for. I reject this argument. I am quite satisfied that the error as to the appellant’s age in these circumstances could not have affected the sentence in any respect.
It was also claimed that the Magistrate failed to give weight to the mental state of the appellant. No medical evidence as to the appellant’s mental state was put before the sentencing court, however, a report from an employee of the New South Wales Justice Advisory Centre Inc was provided to the Magistrate. The report referred to the stress which the appellant was under in his family and business life. At one point in the report the author said that “there was clear evidence of depression and a severely diminished capacity to make day‑to‑day decisions”. However, this comment was not made by someone qualified to express a medical opinion.
During the hearing of the appeal Ms Veloskey, for the appellant, invited attention to a report by Mr Allen Fugler, a psychologist, who interviewed the appellant on 21 February 2010, well after the appellant had been sentenced. It is clear that the report does not meet the requirements for the admission of fresh evidence on appeal. In any event, it does not contain any material which would justify the imposition of a lesser sentence.
The appellant was clearly stressed and under pressure as a result of the breakdown of his family relationship, the failure of his business and the Family Court proceedings. The Magistrate referred to these considerations in his sentencing remarks. He commented on the fact that they, and the death of the appellant’s parents in the last few years, contributed to the appellant’s lack of judgment. The suggestion that the Magistrate did not give proper weight to these considerations must be rejected.
The Magistrate was criticised for placing undue emphasis on the aspect of deterrence and failing to give due weight to the appellant’s previous good character. In my view, the Magistrate was justified in regarding the offence as a serious example of its type. The maximum penalty for the offence is imprisonment for two years. The gravamen of the offence is the falsity of the report and the fact that it is of such a nature as to lead to investigation by the police. The report of a missing child in circumstances such as the present naturally gives rise to considerable concern in the community and requires the prompt diversion of police resources so that a thorough enquiry and search can take place. In this case the appellant was prepared to allow the search and enquiries to continue for an extended period of time in the knowledge that they were futile. When the police eventually found the child, the appellant denied all knowledge of how he came to be where he was found. When to this is added the appellant’s motive arising out of the custody proceedings, it can be seen that the punitive and deterrent aspects of the sentencing process are of considerable weight in this case.
There are a number of factors which tell in favour of the appellant, not the least of which is his previous good character and the fact that he has been able to obtain employment since the offence. The report prepared by the New South Wales Justice Advisory Centre Inc refers to the assistance he has been given in rehabilitation. I have also considered the submissions in relation to the compensation which the appellant must pay.
However, in my view these matters were properly taken into account in substantially reducing the immediate term of imprisonment which the appellant was ordered to serve. It has not been demonstrated that the Magistrate erred in the exercise of his discretion by ordering that at least part of the sentence of imprisonment is to be served immediately.
The appeal will be dismissed.