Vandervloet v Police - [2009] SASC 25

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
VANDERVLOET v POLICE
[2009] SASC 25
Judgment of The Honourable Justice Gray
10 February 2009
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON CUSTODIAL ORDERS
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING - IMPRISONMENT - SUSPENSION OF SENTENCE
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SETTING ASIDE AND AMENDMENT
Appellant charged with three counts of deception pursuant to 139(a) of the Criminal Law Consolidation Act 1935 (SA) - appellant pleaded guilty in Mount Gambier Magistrates Court - appellant sentenced to imprisonment of eight months – this sentence was to be accumulation of the unexpired period of parole of one month and 27 days - whether Magistrate erred in failing to take into account appellant's expressions of contrition and remorse - whether Magistrate erred in failing to consider appellant's prospects of rehabilitation - whether Magistrate failed to have appropriate regard to defendant's pleas of guilty - whether sentence imposed on appellant within Magistrate's discretion - whether magistrate erred in declining to suspend sentence - whether Magistrate erred in failing to have regard to provisions of section 38(2a) of the Criminal Law (Sentencing) Act 1988 (SA).
Held: Appeal allowed - sentence set aside - reduction for defendant's admissions, contrition and remorse materially inadequate - magistrate failed to have regard to appellant's prospects of rehabilitation – appellant re-sentenced - sentence of imprisonment appropriate due to appellant's prior dishonesty offending – at time of re-sentencing appellant had spent almost six months in custody with respect to subject offending - appellant sentenced to imprisonment for one month to be suspended upon the appellant entering supervised one year behaviour bond designed to enhance appellant's prospects of rehabilitation.
Criminal Law (Sentencing) Act 1988 (SA) s 38(2a), referred to.
Markarian v The Queen (2005) 228 CLR 357, considered.

VANDERVLOET v POLICE
[2009] SASC 25
Magistrates Appeal
GRAY J.

This is an appeal against sentence.
Introduction
The defendant, Michael Robert Vandervloet, was charged on Information with three counts of deception contrary to section 139(a) of the Criminal Law Consolidation Act 1935 (SA).[1]
[1] 139—Deception
A person who deceives another and, by doing so—
(a)dishonestly benefits him/herself or a third person; or
…
is guilty of an offence.
The offences occurred in November and December 2006 and were all minor indictable offences. The defendant was interviewed by police on 5 October 2007. On that occasion he made full and frank admissions of his offending. On the defendant’s first appearance in Court on 5 May 2008 the Court was advised that guilty pleas would be entered. Pleas to the three offences were entered in the Mount Gambier Magistrates Court on 24 June 2008. On that date the defendant’s bail was revoked and he was remanded in custody.
The circumstances of the defendant’s offending concerned the unauthorised use of a third party’s credit cards. In one case a victim of the offence was the Greyhound Bus Company and in the other the Courts Administration Authority.
In the case of the Courts Administration Authority, the defendant made unauthorised use of a credit card to pay outstanding fines. In regard to the Greyhound Bus Company, the defendant arranged and paid by credit card for a bus fare from Toowoomba to Adelaide for a young woman. He did this on behalf of an acquaintance. That acquaintance was a friend of the young woman.
The defendant was aged 21 years at the time of the offending. His antecedents included dishonesty offences. Of particular relevance were multiple dishonesty offences between 2003 and 2005 which offences were dealt with together and resulted in to a head sentence of 18 months imprisonment. A non-parole period of six months was fixed. This sentence commenced on 15 July 2005. It was while on parole in respect of this sentence that the present offending occurred.
The defendant wrote letters of apology. On 2 July and 15 August 2008 he apologised to the Courts Administration Authority. On 15 August 2008 he wrote to the manager of the Greyhound Bus Company apologising for his conduct. On 25 August 2008 he wrote to the Court conveying that he wished to apologise for his actions in deceiving the Greyhound Bus Company and the Courts Administration Authority. In each of the letter he acknowledged that his conduct had been wrong, deceitful and dishonest.
The defendant was sentenced on 26 August 2008 to the one term of imprisonment for eight months for all offending pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA).[2] At the time of sentencing the defendant was still to serve an unexpired period of parole of one month and 27 days. In accordance with the relevant statutory provisions,[3] the period of eight months was ordered to be served cumulatively on the period of unexpired parole. This led to a total sentence of imprisonment of nine months and 27 days. The Magistrate declined to suspend the sentence.
[2] 18A—Sentencing for multiple offences
If a person is found guilty by a court of a number of offences, the court may sentence the person to the one penalty for all or some of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates.
[3] provisions
The Appeal
The approach of the appellate Court when reviewing an exercise of sentencing discretion has been recently addressed by the High Court in Markarian[4] where Gleeson CJ, Gummow, Hayne and Callinan JJ observed:
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King,[5] itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy".
[4] Markarian v The Queen (2005) 215 ALR 213 at 25.
[5] (1936) 55 CLR 499 at 504-505.
The Magistrate, when sentencing, described the defendant’s offending as follows:
Mr Vandervloet, you are before the court today on charges of deceiving another, one count on 18 November and two counts on 1 December. The deception was of the Courts Administration Authority (count 1) in the amount of $2345; and then a bus company (count 2) in the amount of $1742.95. What you did was you made use of somebody else’s stolen credit cards. You well knew they were stolen, they were advertised on the internet, and you took advantage of the hapless victim, used the credit card details, paid off your debts to the court with associated benefit to you and paid for the pleasure of the company of a female person to be transported from Queensland to Adelaide, all of which was dishonest.
It is evident that the Magistrate proceeded on a misunderstanding. It was incorrect for the Magistrate to proceed on the basis that the defendant “paid for the pleasure of the company of a female person to be transported from Queensland to Adelaide”. As indicated earlier, the defendant had no relationship, past or intended, with the female passenger. Counsel for the respondent accepted that this was a material error.
The Magistrate addressed the letters of apology as follows:
I have read the many and varied documents that you have authored. I do not see one word of apology to the persons that actually owned the credit cards. You say there is no excuse for you committing the offending, but then you immediately go on and give and [sic] excuse. You say at the time when you did it that you were not handling your life well, you were living unstable, you were feeling depressed and you were not focussed on reality. That, sir, amounts to excuses that you claim not to want to advance. The fact of the matter was you were under supervision, had the benefit of a supervised regime under a parole order and had lots of facilities available to you to deal with the sorts of issues that you now talk about. In my view you simply chose to behave dishonestly.
The Magistrate appears to have treated the apologies of the defendant as insincere and disingenuous. It is correct that the apologies were not tendered to the persons whose credit cards were inappropriately used. It might be expected that the defendant would have some difficulty making contact with those persons. The point and relevance of the apologies was that they evidenced some degree of contrition and remorse, and provided some evidence that there may be a prospect for rehabilitation. The Magistrate was dismissive of the apologies and appears to have given them little or no weight. Counsel for the respondent accepted that in the circumstances this amounted to sentencing error.
The Magistrate made a reduction of about 15 per cent on account of the defendant’s plea, contrition and remorse. This was a modest reduction having regard to the full admissions made by the defendant at the time of his arrest. The pleas of guilty were entered as soon as practicable before the Court. Counsel for the respondent accepted that a reduction of the order of 25 per cent on account of the pleas was appropriate. It was further accepted that in the circumstances the reduction made by the Magistrate was inadequate and materially so.
The Magistrate considered the appellant’s offending to be serious and, in particular, observed:
You have an appalling history of theft and dishonesty that stretches all the way back to being a youth. That history involves imprisonment and some you have previously have to serve in particular 18 months’ imprisonment in 2005. It is self evident by the fact you were on parole that you had not even finished that sentence of imprisonment. The fact you had not finished it and were on parole did not deterred [sic] you. You say that you have changed your ways. I do not have much confidence that that is so. There is nothing really that I can draw upon apart from a very brief and recent association with Mr and Mrs Kearvell. I accept what they say to the limited extent of their association and experience with you.
In all of this and it is a bit astonishing really that you are only 22 years of age I will take into account the fact that you have pleaded guilty. I will take into account the fact that you admitted your misconduct. These are significant matters and you are entitled to the benefit of those and I will ensure that you get that benefit in the terms of the starting point that I will consider as an appropriate period of imprisonment. I do not think it is appropriate in these circumstances that you receive anything other than a period of imprisonment.
I take into account the other matters said on your behalf, but the plain fact of the matter is that they pale into insignificance when one looks at your offending and the fact that you were on parole.
Given the defendant’s prior record for dishonesty offending and the aggravating circumstances that the present offending occurred while he was on parole, it was appropriate for a sentence of imprisonment to be imposed. It was also appropriate that the sentence not be totally suspended. The defendant is still a young man now aged 23 years. There are indications that he has prospects of rehabilitation. Given his youth, he should be, in my view, offered the opportunity to pursue rehabilitation. He should have been encouraged to do so. Counsel for the respondent suggested that in this case, provisions of section 38(2a) of the Sentencing Act should have been considered by the Magistrate. I agree. Regrettably, such an approach is not now possible.
In the present proceeding, the Magistrate approached the sentencing process with a misunderstanding of fact. In my view he took an unrealistically pessimistic view about the defendant’s prospects of rehabilitation. This was partly caused by his misunderstanding of the facts as referred to in his reasons. But the defendant does have prospects of rehabilitation. The present offending occurred in November and December 2006 but it appears that the defendant has been out of trouble from that time until his bail was revoked in June 2008. Further, the defendant’s apologies suggest that he is taking steps to face up to acknowledging the consequences to others of his behaviour. Further, there is some evidence that he has support within the community and that that support will continue. In my view the Magistrate failed to give full effect to these factors. His unduly pessimistic view led to an inappropriately low reduction on account of the pleas of guilty. Counsel for the respondent was correct in his submission that a reduction in the order of 25 per cent rather than 15 per cent should have been made. Finally, the Magistrate was in error in failing to consider his powers under section 38(2a) of the Sentencing Act.
The defendant has now served the balance of the unexpired portion of the non‑parole period from the previous sentence and has served almost four months of the sentence for the present offending. The sentence in respect of the present offending commenced on 20 October 2008.
In my view, the notional starting point selected by the Magistrate of 12 months for all offending was well within his sentencing discretion and in the circumstances is an appropriate starting point. A reduction of one quarter reduces that notional sentence to nine months. It is appropriate then to make a further reduction of two months, as did the Magistrate, on account of time already spent in custody. This leads to a notional head sentence of seven months.
Having regard to the circumstances I would have exercised my powers under section 38(2a) and ordered that the defendant serve four months of the seven months in custody but that the balance of the sentence be suspended. As earlier observed it is not now possible to construct the sentence in this way. Counsel for the parties agreed that it would be appropriate to re-sentence the defendant in this way. As a consequence, I consider the preferable course is to re-sentence the defendant, bringing to account the total time spent in custody referred to his present offending time, and to then suspend the sentence.
Having regard to the foregoing, I set aside the sentence imposed by the Magistrate in respect of the present offending. The defendant has now spent almost six months in custody. Having regard to the time spent in custody, I sentence the defendant to imprisonment for one month but suspend that sentence on his entering into a supervised one-year good behaviour bond.