Warner v Police - [2014] SASC 54

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WARNER v POLICE
[2014] SASC 54
Reasons for Decision of The Honourable Justice Nicholson
22 April 2014
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW
Appeal from a Magistrate's decision to refuse to suspend a sentence of imprisonment imposed for a lengthy repeated course of dishonesty offences.
Held: Appeal allowed.
Criminal Law Consolidation Act 1935 s141; Criminal Law (Sentencing) Act 1988 s10, s38; Magistrate’s Court Act 1991 s42, referred to.
Police v Warner Adelaide Magistrates Court, AMC-12-6741, 11/12/2013 Remarks on Penalty; R v Smith (1987) 44 SASR 587; R v Dorning (1981) 27 SASR 481; R v Pickard [2011] SASCFC 134; Bean v Considine [1965] SASR 351; R v Maniadis (1997) 1 Qd R 593; R v McIntee (1985) 38 SASR 432; R v C (2004) 89 SASR 270; R v Brain (1999) 74 SASR 92; Aplin v Police [1999] SASC 273; Neill v Police [1999] SASC 270; R v Jenkins (2000) 209 LSJS 341; R v O’Toole [2013] SASCFC 18; House v The King (1936) 55 CLR 499; Wessling v Police (2004) 88 SASR 57; R v Kruger (1977) 17 SASR 214; R v Wacyk (1996) 66 SASR 530; Dinsdale v The Queen (2000) 202 CLR 321; Naera v Police (1995) LSJS 328; Taylor v Hayes (1990) 53 SASR 282; Ware v Betts (1987) 134 LSJS 212; Wong v R (2001) 207 CLR 584; Markarian v R (2006) 228 CLR 357; Bright v Police [2008] SASC 220; The Queen v Robertson (1984) 115 LSJS 51; Re Tran ex parte A-G (2002) 128 A Crim R 1, [2002] QCA 21; R v Bandjak [2011] SASCFC 19; R v Chaloner (1990) 49 A Crim R 370; Matulich v Police (2007) 252 LSJS 219, [2007] SASC 440; R v Afford unreported, Supreme Court of South Australia, Court of Criminal Appeal, CCA No 8 of 1984 (King CJ); SA Police v John (1995) 181 LSJS 20; R v Jennings (1996) 187 LSJS 222; R v Wirth (1976) 14 SASR 291; Markovich v R (2010) 30 VR 589; R v Penno (2004) 236 LSJS 457, [2004] SASC 354; R v Maslen (1995) 79 A Crim R 199; Wilson v Green (1973) 61 LSJS 380; Cook v Huffa (1975) 12 SASR 277; R v Verdins (2007) 169 A Crim R 581, [2007] VSCA 102; Kovacevic v Mills [2000] SASC 106 ; R v Stubberfield (2010) 106 SASR 91; R v Moffa (No 2) (1977) 16 SASR 155, considered.

WARNER v POLICE
[2014] SASC 54
Magistrates Appeal: Criminal
NICHOLSON J.
Introduction

On 16 September 2013, the appellant pleaded guilty in the Magistrates Court to 60 counts of dishonestly manipulating a machine, contrary to s141(1)(a) of the Criminal Law Consolidation Act 1935. Each offence attracts a maximum penalty of 10 years imprisonment. On 11 December 2013, she was sentenced to imprisonment for two years, reduced from three years on account of her pleas of guilty, with a non-parole period of 12 months reduced from 18 months, again on account of her pleas of guilty.[1]
[1] Police v Warner, Adelaide Magistrates Court, AMC-12-6741, 11/12/2013 Remarks on Penalty; the Magistrate exercised the discretion available to him under s18A of the Criminal Law (Sentencing) Act 1988 to impose one penalty for all 60 offences.
The sentence was not suspended. However, after spending 24 hours or so in custody, the appellant was granted bail by the sentencing Magistrate pending the resolution of this appeal against the sentence. It is a term of the bail agreement entered into by the appellant on 12 December 2013 (as varied on 19 December 2013) that she is to appear before a Magistrate in Adelaide, constituting a court of summary jurisdiction, within 14 days of the day on which the Supreme Court announces its decision on the appeal, to abide the result of the decision, unless sooner dealt with by the Supreme Court.
In her notice of appeal, the appellant identified two grounds of appeal: first, that the sentence was manifestly excessive; and second, that the Magistrate erred in not ordering a suspended sentence. However, during the hearing of the appeal, the first ground was not pressed and the appellant directed her submissions only to the second ground.
At the hearing of the appeal four documents that had not been before the Magistrate were received by the Court.
(i)An affidavit of the police prosecutor, Dianne Lynette Langton, sworn 16 January 2014, was read by the respondent. In that affidavit, Ms Langton set out her recollections of what occurred before the Magistrate on the three occasions when submissions as to sentence were made, 21 October 2013, 4 December 2013 and 11 December 2013. This affidavit was received without objection by the appellant.
(ii)An affidavit by senior counsel for the appellant, Grant Raymond Algie, sworn 4 February 2014, was read by the appellant. In that affidavit Mr Algie set out his recollections of what occurred before the Magistrate on the same three days.[2] This affidavit was received without objection by the respondent.
[2]    These are no material differences in the two recollections.
(iii)A further[3] report by the clinical psychologist, Ms Mary Johnson, dated 31 January 2014 and purporting to address matters which had come to her attention after sentencing and after the appellant had been released on bail, was received over the objection of the respondent. After hearing from the parties, I was satisfied that the usual requirements for the admission of fresh evidence had been met.[4] I was satisfied that this latest report by Ms Johnson served the purpose of explaining the true significance of facts which were in existence and known at the time of sentence. In R v Smith,[5] King CJ said this.
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 have occurred since the imposition of sentence 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.
After ruling on this report, counsel for the respondent declined to take the opportunity offered of obtaining an answering report but, rather, submitted that, in the circumstances, only limited weight should be given to this report.
(iv)An affidavit sworn on 4 February 2014 by the appellant’s husband, Frederick Charles Warner, was read by the appellant. In this affidavit Mr Warner deposes to a number of aspects of his and the appellant’s financial situation and the effect upon their financial situation that would result should the appellant be required to serve an immediate term of imprisonment. Counsel for the appellant, candidly, acknowledged that not all of the matters deposed to could be characterised as fresh evidence in accordance with the notion and requirements as discussed in, for example, R v Dorning.[6] Counsel submitted that, nevertheless, it was evidence that should be received by the Court in any event. In this respect, counsel relied upon the summary of the principles, governing the reception of such further evidence, provided by Gray J in R v Pickard.[7] His Honour’s observations on this topic included the following.
In sentence appeals, the courts have adopted a flexible view. Further evidence may be admitted to prevent a miscarriage of justice even if the conditions referred to have not been satisfied.[8] There is also the public interest in the finality of the court process. Tension can arise in the operation of these two principles. In seeking to resolve this tension, the courts have developed principles, including those set out [in paragraph [41] of his Honour’s judgment] to facilitate the reception of evidence in appropriate cases. The decisions of McIntee,[9] Smith,[10] C[11] and Brain[12] are examples of means by which this tension may be resolved.[13] In the criminal court where liberty may be lost, the overriding principle must be the interests of justice.
During argument, counsel for the Crown withdrew her initial objection to the reception of this affidavit and conceded that it would be in the interests of justice for the Court to receive it. Again, submissions were made as to the weight that ought be accorded to it. Leaving aside the question of admissibility which I do not need to decide, I was satisfied that the matters deposed to in Mr Warner’s affidavit (whilst, largely, in existence at the time of sentence) also served to explain facts which had been before the sentencing judge so as to put them in a new light.[14]
[3]    A number of earlier reports, dated 18/10/2012, 17/12/2012, 14/1/2013, 18/3/2013 and 9/9/2013, had been provided to the Magistrates Court by Ms Johnson on behalf of the appellant.
[4]    See for example, R v Dorning (1981) 27 SASR 481 at 485; “In order to justify the reception of fresh evidence three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; second, the evidence must be such that if given, it would probably have an important influence on the result of the case, although it need not be decisive; third, the evidence must be apparently credible… .”
[5] (1987) 33 SASR 587 at 588.
[6] (1981) 27 SASR 481 at 485.
[7] [2011] SASCFC 134 at [41]-[42].
[8]    Bean v Considine [1965] SASR 351; R v Maniadis (1997) 1 Qd R 593.
[9]    R v McIntee (1985) 38 SASR 432.
[10] R v Smith (1987) 44 SASR 587.
[11] R v C (2004) 89 SASR 270.
[12] R v Brain (1999) 74 SASR 92.
[13] See also, Aplinv Police [1999] SASC 273; Neill v Police [1999] SASC 270; R v Jenkins (2000) 209 LSJS 341.
[14] Cf; R v Smith (1987) 33 SASR 587 at 588.
Factual background
Each of the appellant’s offences involved a defalcation made from the bank accounts of her then employer. The total amount of the 60 defalcations was $138,616.44. The circumstances of the offending and its immediate effects on the appellant’s employer and some of its other employees were summarised by the Magistrate.[15]
You were employed as the payroll supervisor answerable to the company accountant. There were three other employees in the payroll section and the company had in excess of 1000 employees across Australia. Through your position as the payroll supervisor you caused monies to be electronically transferred from the company’s bank account to two accounts in your own name. Between 2003 and 2007 transfers were made to an account at the Commonwealth Bank of Australia and between 2007 and 2009 to a bank account in your name held at the ANZ Bank. Those transactions were disguised in the company records. You had created 24 fictitious employee profiles in the company records and attributed the payments to these people. Other payments were assigned to genuine employees of the company and it was this fact which ultimately lead to the discovery of your fraud. Employees who received their group certificates at the end of the financial year questioned what they recognised to be overpayments. An audit was undertaken which revealed the extent of your fraud. The company has since had to build in additional security safeguards to protect against such conduct in the future. That, of course, has involved expense. It is plain that your offending was sustained, involved and amounted to a gross breach of your employer’s trust. Embarrassment and anxiety was caused to your fellow payroll section employees during the course of the inquiry as the prospect of suspicion fell upon them. In that regard I have read, and taken into account, a victim impact statement submitted by consent on behalf of the company.
[15] Remarks on Penalty at [4].
The appellant’s personal circumstances are canvassed at some length in the Magistrate’s Remarks on Penalty, the various reports of Ms Johnson, a report of the psychiatrist, Dr Craig Raeside, dated 6 July 2013 and a report of the clinical psychologist, Mr Richard Balfour, dated 24 July 1995 (prepared in the context of earlier offending) all provided to the Magistrates Court and discussed later in these reasons. Information concerning the appellant’s personal circumstances is also to be found in Mr Warner’s affidavit. What follows is a summary, only, of the far more comprehensive treatment provided in these materials.
The appellant is 51 years old and married to Mr Warner who is 12 years her senior. She has a 29 year old son from a former marriage. She also has three adult step-children. The appellant lives with her husband and is the sole bread winner. She works in administration and database support for an enterprise which owns and/or manages a number of clubs throughout Australia and New Zealand and has done so since some time in the second half of 2010. The appellant’s employer, apparently, has not been made aware of the offending.
The appellant works full time and earns approximately $63,000 per annum. Mr Warner does not work because of an injury to his back. He requires back surgery before he can recommence work. There is no evidence before the Court as to when that surgery is likely to take place. However, after any such surgery, he would require the services of a carer for a minimum of eight weeks. Unless and until Mr Warner were able to apply successfully for and to return to work, the appellant remains solely responsible for all financial aspects of the household. They own the house they live in, valued at approximately $685,000 with a mortgage debt of a little over $342,000. The monthly mortgage repayment is approximately $1,900 which, together with all other household expenses, is met from the appellant’s employment income.
The appellant and Mr Warner were unsuccessful in their attempts to have the bank extend the loan secured by their house mortgage in order to repay the money taken by the appellant. However, Mr Warner was able to gain access to his superannuation fund so that the appellant could make full restitution in the amount of a little over $138,000. This occurred during the course of sentencing submissions and the delivery of sentence was delayed in order for the process of making restitution to be completed. However, Mr Warner has now been left with no superannuation. According to Mr Warner, if the appellant were to be required to serve 12 months imprisonment, it would not be possible for him to maintain the mortgage repayments with the likelihood that the house would be repossessed and sold, to his significant financial disadvantage.
The appellant was born and raised in north Queensland as the eldest of three children. She had a relatively unremarkable upbringing and schooling. After completing year 12 she went to a business college and has since worked in a number of secretarial and administration type jobs. At one stage she did some work in hotel management. The appellant married the father of her son when she was 22 but the marriage only lasted two years. The appellant commenced a relationship with her current husband about 27 years ago; they have been married for the last 15 years or so.
The relationship went through a difficult period during the early to mid-1990s. The appellant reacted to the situation by stealing substantial sums of money from her husband by way of unauthorised withdrawals from his bank accounts. In 1995, the appellant pleaded guilty to one charge of larceny and three charges of obtaining money by false pretences. Over a period of about three years between June 1992 and June of 1995, she, in effect, stole from her partner, now husband, a little more than $91,000. She was sentenced for this offending on 31 August 1995 to a term of imprisonment for two years and three months with a non-parole period of six months. That term of imprisonment was suspended upon her entering into a bond to be of good behaviour for a period of two years with conditions. Notwithstanding these events, the appellant and her husband reconciled. She has since then enjoyed his strong support and still does so. The appellant has no other prior convictions of any sort.
During the time when her relationship with Mr Warner was under stress, the appellant also engaged in a period of pathological poker machine gambling. She used money taken from Mr Warner. She described herself as very lonely and stressed at that time and said that she tried to obtain relief by just spending money and gambling on the pokies. She told Dr Raeside that she would spend whatever money she had available but was not particularly interested in winning. She would simply put all of the money available back in and “just sit there until the money ran out.” According to Dr Raeside, the description she gave suggested a significant component of avoidance and escape from her life at the time.
The appellant has no history of drug or alcohol abuse. She does have a significant history, better understood now than it was prior to her committing the most recent offences, of psychological ill health and (perhaps, in part, as a consequence of) an underlying personality disorder which has lead to the expression, over a long period of time, of maladaptive patterns of behaviour. I will need to say something more about this issue with reference to the reports of Dr Raeside and Ms Johnson later in these reasons.
The appellant worked for a number of employers during the 1990s and early 2000s usually for not more than 12 or 18 months at a time. In 2002 she commenced working with the employer company which she subsequently came to defraud. She worked as a payroll supervisor for eight years. Her employment was terminated in July 2010 for reasons unconnected with her offending. At this time, her employer was unaware that she had been stealing the money. Some months later the appellant commenced to work for her current employer.
Nature of the appeal
The power of a Court to suspend a prison sentence is governed by s38(1) of the Criminal Law (Sentencing) Act 1988.
Where a court has imposed a sentence of imprisonment upon a defendant, the court may, if it thinks that good reason exists for doing so, suspend the sentence on condition that the defendant enter into a bond—
(a) to be of good behaviour; and
(b) to comply with the other conditions (if any) of the bond.
Peek J (with whom Sulan J agreed) in R v O’Toole[16] has provided the following explanation of s 38(1).
This provision has been held to require the Court to ask only one question: whether, having regard to all the relevant sentencing considerations in the particular circumstances of the case, there exists good reason to suspend the sentences.[17] The inquiry into “good reason” cannot be reduced to a set of comprehensive criteria, nor circumscribed by a precise formula to be applied in every case.[18] It is also erroneous to attempt to define “good reason” by reference to other cases in which a sentence of imprisonment has been suspended or by inferring that a particular class of offences must attract an immediate term of imprisonment.[19] The decision to suspend must be made solely on the facts and circumstances of the particular case at hand.
[16] [2013] SASCFC 18 at [50].
[17] Wessling v Police (2004) 88 SASR 57 at 63 (Besanko J).
[18] R v Kruger (1977) 17 SASR 214 at 221 (Bray CJ); R v Wacyk (1996) 66 SASR 530 at 535 (Perry J).
[19] R v Wacyk (1996) 66 SASR 530 at 535 (Perry J).

The appeal to this Court is pursuant to s42 of the Magistrate’s Court Act 1991. The decision whether or not to suspend a prison sentence involves the exercise of a discretion. An appeal from such an exercise of discretion is of the nature described by Dixon, Evatt and McTiernan JJ in House v The King.[20]
It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
[20] (1936) 55 CLR 499 at 505. See also: Dinsdale v The Queen (2000) 202 CLR 321 at 324-325; Naera v Police (1995) LSJS 328 at 329; Taylor v Hayes (1990) 53 SASR 282 at 291; Ware v Betts (1987) 134 LSJS 212 at 216; Wessling v Police (2004) 88 SASR 47 at 60.
During submissions, I specifically queried with counsel for the appellant whether it was his intention to direct the Court to specific error or errors in reasoning attributable to the Magistrate or whether it was the appellant’s case that, on the facts, the failure to suspend was so unreasonable or plainly unjust that the Court should infer that there had been a failure, in some way, properly to exercise the discretion so as not to suspend the prison sentence. Counsel’s overarching position was that the Magistrate erred in failing to have proper regard to identified important factors relevant to the issue of suspension of the sentence and in placing too much weight on other identified factors.
The Magistrate’s reasons
After setting out a summary of the circumstances of the offending (see earlier), the Magistrate turned to consider the psychiatric and psychological expert evidence. His Honour observed that to the extent that there was a disparity between the diagnoses of Dr Raeside and of Ms Johnson, any differences between them did not need to be resolved. He was invited by counsel for the appellant to sentence on the basis of the diagnosis given by Dr Raeside and proceeded to do so. That is not to say that the opinions expressed by Ms Johnson were not relevant to the overall assessment of a proper sentencing outcome.
Dr Raeside could find no evidence, on the one occasion he interviewed the appellant (18 June 2013) of a severe psychiatric illness. However, her symptoms were consistent with an adjustment disorder with mixed anxiety and depressed moods by reason of the stress over the criminal charges that she was facing. Dr Raeside recognised that the appellant had suffered depressive and anxiety symptoms for many years. In his view, the appellant suffered from a mixed personality disorder with narcissistic and obsessive compulsive traits. This had given rise to a long standing maladaptive pattern of feeling, thought and behaviour through which the appellant entertained an unreasonably elevated view of herself and her abilities. According to Dr Raeside, and as the Magistrate observed, the appellant engaged in obsessive compulsive behaviour to maintain such an image. According to Dr Raeside, the appellant’s offending appeared “to have been significantly associated with feelings of anger, resentment and narcissistic injury”. Just as her earlier offending emerged as a consequence of her, then, difficult relationship with her husband, the present offending occurred within a context of the appellant feeling unloved and unappreciated, overworked and resentful in her employment.
Ms Johnson was of the opinion that the appellant suffered from major depression and an anxiety disorder for which Ms Johnson was providing cognitive behavioural therapy progressing through treatment phases. However, and as noted by the Magistrate, Ms Johnson was of the opinion “that some considerable time will be needed before [the appellant is] well enough to transition to the final stage of treatment”. The Magistrate also took account of Ms Johnson’s opinion that the appellant would cope poorly with imprisonment, that imprisonment would worsen her mental health and that gains made so far in the treatment of the appellant’s psychological state would be at risk of being lost should she go into custody.
The Magistrate had regard to the submissions of the appellant’s counsel to the effect that, no matter how the appellant’s mental health or mental state condition might be described, it remained a relevant fact to be taken into account on the question of penalty. The Magistrate agreed with this submission. The Magistrate recorded in his sentencing remarks counsel’s submissions as to the reasons why the appellant’s mental state at the time of the offending and generally was relevant to penalty, including that it served:
(i)to reduce the moral culpability of the conduct;
(ii)to render general deterrence of less significance to the question of sentence;
(iii)to indicate that specific deterrence may be more difficult to achieve in this case than otherwise; and
(iv)to indicate that a term of imprisonment would be more difficult for the appellant as compared with a person not suffering from the same mental and psychological state.
The Magistrate, nevertheless, went on to stress that the appellant had committed a substantial and deliberate fraud over a lengthy period of time and one which involved the breach of her employer’s trust. His Honour recognised that, by virtue of her personality disorder, the appellant was to some degree acting under a degree of compulsion. His Honour also expressly took into account the fact that in the intervening period between her earlier offending (mid-1990s) and the most recent offending she had received no treatment, that she was now receiving treatment and that a term of immediate imprisonment may have a detrimental effect on her rehabilitation, as explained by Ms Johnson.
His Honour observed, consistent with counsel’s submission, that both general and specific deterrence were important considerations but “tempered as they are by reason of [the appellant’s] condition”. His Honour expressed the view, with which I respectfully agree, that a term of imprisonment was the only appropriate sentencing option. The Magistrate then imposed the prison term as identified earlier in these reasons following which his Honour dealt expressly with the question of suspension in the following terms.[21]
I have had regard to all that has been put to me as to your personal circumstances on the question of the suspension of that sentence. Specifically, [counsel] has emphasised;
(i)the compulsive traits which lead you to offend
(ii)the fact that you have since received treatment and the effect an immediate term of imprisonment is predicted to have upon that treatment
(iii)your plea and obvious contrition
(iv)the fact that you have not reoffended in the interim and that you are now back in employment
On the other hand you have previously had the benefit of a suspended gaol term for various similar offending but, nevertheless, reoffended once again over a six year period. The duration and seriousness of your offending in that context, in my view, renders a further suspended term of imprisonment inappropriate. I am unable to find there be good reason to suspend that gaol term and I decline to do so.
[21] Remarks on Penalty at [12]-[13].
Resolution of the appeal
Comprehensive submissions as to the personal circumstances of the appellant, bearing on the question of suspension, were made by counsel for the appellant during sentencing submissions in broadly similar terms to those made by the same counsel on appeal. At first blush, the case against suspension was a strong one, for the reasons given by the Magistrate. In particular, the appellant is a repeat offender having already enjoyed the benefit of a suspended prison sentence for broadly similar offending (albeit many years ago) and the offending itself was serious involving a large sum of money committed over a long period of time and in breach of trust.
However, there are four matters in favour of suspension that were not fully taken account of. Each of these matters was before the Magistrate to some degree but, in my view, the further evidence provided to this Court on appeal and that was not before the Magistrate, adds significant weight to each of these matters. In addition, the Magistrate placed insufficient weight on the issue of restitution, independently of the further evidence given on appeal relevant to that issue. For these reasons, the appeal should be allowed and the exercise of the discretion whether or not to suspend should be revisited on the basis of all of the evidence now available to the Court. I turn to consider the four matters.
The issue of restitution
According to the affidavits of Ms Langton and Mr Algie, the bulk of the sentencing submissions were made at a hearing on 21 October 2013. However, on that day the matter was adjourned to 4 December 2013, principally, to enable the issue of restitution to be resolved. During the hearing on 21 October 2013 the Magistrate enquired of the appellant’s counsel whether compensation was able to be paid and, specifically, whether there was any equity in the home owned by the appellant and her husband that might be used to facilitate this.
It is not clear whether or not this was the first occasion when the question of the appellant’s capacity to pay compensation or make restitution was raised. If it was the first occasion, there is no evidence to assist with an understanding of why such a potentially important matter was only broached at such a late stage in the proceedings. The fact that this matter appears to have come up so late in the proceedings and, at least initially, in response to a query from the bench,[22] is a matter that might be thought to bear on the extent to which the payment of compensation or restitution came about as a genuine act of contrition. Nevertheless, the Magistrate accepted the payment of restitution as “concrete evidence” of contrition and there is no good reason on this, a defendant’s appeal, to depart from such a finding.
[22] Counsel for the appellant deposed to this in his affidavit: “at some point during the course of my submissions [the Magistrate] enquired as to whether compensation was able to be paid and specifically asked whether there was any equity in their home that would permit compensation to be paid. This seemed of importance to his Honour who permitted an opportunity to obtain instructions at some point during the course of submissions.”
When the matter came before the Magistrate on 4 December 2013, his Honour was advised that compensation had been made although not from monies borrowed against the mortgage but from monies released from a superannuation fund. However, the cheque had not yet been cleared and the matter was again adjourned to 11 December 2013. On that day his Honour was advised that the cheque in payment of restitution had been cleared and his Honour proceeded to sentence.
The only mention by the Magistrate of the issue of restitution occurs at the very beginning of his remarks.[23]
The total amount of your defalcations was $138,616.44. That amount has now been repaid last week. That is very concrete evidence of your contrition which will be reflected in the penalty I intend to impose.
The Magistrate did not, thereafter, specify the extent to which the repayment of this amount was reflected in the penalty imposed and nor was the Magistrate obliged to do so.[24] What can be inferred is that this issue, either alone or in combination with other matters, was not sufficient to enable the Magistrate to exercise the discretion to suspend the sentence. However, it is presumed that the appellant would have received either a greater head sentence or a greater non-parole period, or both, in the event that there had been no restitution. I accept that in these respects the sentence can be regarded as merciful and that something higher in each respect still would have been within the appropriate range. Nevertheless, the issue of restitution was an issue relevant not just to the sentence imposed but also to the issue of whether or not to suspend it.
[23] Remarks on Penalty at [3].
[24] Wong v R (2001) 207 CLR 584 at [74]-[76]; Markarian v R (2006) 228 CLR 357 at [35]-[39].
The principles concerning the relevance of restitution to a court’s sentencing task have been helpfully summarised by Gray J in Bright v Police[25]
[25] [2008] SASC 220 at [9]-[10]. Emphasis in the original.
A convenient starting point for the discussion of the relevant principles with respect to restitution is the decision in Robertson.[26] This decision pre-dated the enactment of the Criminal Law (Sentencing) Act 1988 (SA). The defendant in that case, was sentenced to 18 months’ imprisonment with respect to offences of dishonesty. On appeal, further evidence was placed before the Court concerning restitution. It is convenient to continue the factual summary by reference to the reasons of King CJ, with whom Zelling and White JJ agreed:[27]
[26] The Queen v Robertson (1984) 115 LSJS 51.
[27] The Queen v Robertson (1984) 115 LSJS 51 at 53.
There is, however, one factor which was not before the learned sentencing judge, at all events in the same way as it is before us. There is now evidence that the [defendant] will become entitled to a substantial sum of money, $3,490, by way of tax refund in the near future and he is prepared to apply that money to make restitution. He has accumulated some money as a result of his endeavours since he has been on bail and is able to borrow some money. As a result of all that, he is able to say that he can make full restitution by the end of August. This is a very important factor from more than one point of view. It means that the persons who have suffered loss as a result of the crimes will be restored to the position in which they were before they lost their money and will have suffered only to the extent of any inconvenience and emotional upset which was caused to them and any interest which they might lose as a result of not having the use of the money.
The new factor is important in another way because it shows that the [defendant] has made use of the time which he has had since he has been on bail to rehabilitate himself by working, and working hard, and making good use of the money which he has earned for the benefit of those whose money he had taken. This augurs well for his rehabilitation and gives this Court some ground for extending a leniency to him which was not available to the learned sentencing judge. I think that the combination of these two aspects of the new factor is sufficient to enable this Court to intervene, bearing in mind that the [defendant] was in gaol from the date upon which he was remanded for sentence, 13 March 1984, to the date on which he was released on bail, 9 May 1984, a period of two months.
In Matulich,[28] I summarised the common law and statutory recognition of the relevance of the making of restitution on sentence:
- Statutory recognition has been given to the relevance of restitution in the sentencing process through sections 10(1)(e) and 10(1)(f) of the Sentencing Act.[29]
-       These statutory provisions provide a recognition of the common law principles identified in Robertson.[30]
-       A sentencing court, as observed in Kovacevic,[31] must treat restitution as mitigatory. This is because the making of restitution impacts directly on the extent of any loss suffered, and must be brought to account by reason of section 10(1)(e).
-       The circumstances under which restitution is made may demonstrate contrition and remorse. These are matters of mitigation. As explained in Robertson, this is because contrition and remorse suggest that there are good prospects for rehabilitation.
-       As observed in John,[32] O’Keefe[33] and Allen,[34] restitution may be of particular significance if accompanied by circumstances of personal sacrifice. Such circumstances may lead to the suspension of a term of imprisonment, or alternatively may operate to substantially reduce the time to be spent in custody.
[28] Matulich v Police [2007] SASC 440 at [30]. It might be noted that the terms of s10(1)(f) of the Sentencing Act, as referred to by his Honour in the passage that follows, are now contained in s10(1)(g).
[29] Sections 10(1)(e) and 10(1)(f) of the Criminal Law (Sentencing) Act 1988 (SA) provide:
“(1)A court, in determining sentence for an offence, should have regard to such of the following matters as are relevant and known to the court:
…
(e)any injury, loss or damage resulting from the offence;
…
(f)the degree to which the defendant has shown contrition for the offence—
(i)by taking action to make reparation for any injury, loss or damage resulting from the offence; or
(ii)in any other manner”
[30] The Queen v Robertson (1984) 115 LSJS 51.
[31] Kovacevic v Mills (2000) 76 SASR 404.
[32] SA Police v John (1995) 181 LSJS 20.
[33] R v O’Keefe (1992) 60 A Crim R 201.
[34] R v Allen [2005] QCA 73.
The relevant principles have also been identified by White J in R v Bandjak.[35]
[35] [2011] SASCFC 19 at [80].
The significance to be attached to actual steps taken by a defendant to make reparation, and to offers to take such steps, have been discussed in several authorities (both before and after the enactment in 1988 of the Sentencing Act). The relevant principles can be summarised as follows:
1.The making of restitution is always a relevant matter (R v Wirth[36]) and is mitigatory. This Court in R v Robertson[37] spoke of the significance of restitution in the following passage:
[36] (1976) 14 SASR 291 at 294; Kovacevic v Mills [2000] SASC 106; (2000) 76 SASR 404; Matulich v Police [2007] SASC 440. See also R v Stubberfield [2010] SASC 9 at [18]-[21]; (2010) 106 SASR 91 at 98-9.
[37] (1984) 115 LSJS 51.
[Full restitution] is a very important fact from more than one point of view. It means that the persons who have suffered loss as a result of the crimes will be restored to the position in which they were before they lost their money and will have suffered only to the extent of any inconvenience and emotional upset which was caused to them and any interest which they might lose as a result of not having the use of the money.[38]
[38] Ibid at 53 (King CJ with whom Zelling and White JJ agreed).
2.It is the consistent policy of Courts to encourage the making of restitution: R v Afford;[39] SA Police v John.[40]
[39] Unreported, Supreme Court of South Australia, Court of Criminal Appeal, CCA No 8 of 1984 (King CJ).
[40] (1995) 181 LSJS 20 at 22.
3.Apart from providing some reparation to the victim, and being an indication of contrition, restitution out of the defendant’s own resources also means that he or she has not profited from the crime: R v Afford.[41]
4.The making of restitution will usually be evidence of remorse: R v Wirth.[42] In particular, a defendant’s willingness to work long hours and to assume heavy burdens in order to make reparation will usually be good evidence of remorse: R v Wirth.[43]
5.There are limits on the extent to which leniency should be granted when a defendant’s family or friends assist in making the restitution because, in such circumstances, there may simply be a shift of the burden of the crime from the original victim to persons other than the defendant: R v Jennings;[44] R v Wirth.[45]
6.However, the fact that others are willing to supply the funds used in making restitution does not mean that the reparation is of no significance in the sentencing. The making good of the victim’s loss is an important factor and the fact that others are prepared to do this may speak in favour of the defendant’s intrinsic worth: R v Wirth;[46] SA Police v John.[47]
7.Courts should be alert not to permit defendants in effect to buy, or appear to buy, suspension of a term of imprisonment by making, or by offering to make, reparation for their offence: Cox v Betts;[48] Kovacevic v Mills.[49] In R v Allen[50] McMurdo P spoke of this consideration saying:
Whilst courts would never allow wealthy offenders with the capacity to pay compensation to buy their way out of an appropriate custodial sentence, restitution is, as the respondent concedes, a relevant mitigating factor in that it compensates the victim and benefits society and is often, as here, a tangible demonstration of genuine remorse.[51]
8.Courts view offers made for the first time during the course of sentencing submissions to make restitution with some circumspection. Stanley J (with whom Wanstall and Stable JJ agreed) in the Queensland case of R v O’Keefe said:
It would be of the worst example if any sentence induced or tended to induce a belief that offenders would escape punishment if, when convicted, they made or offered to make restitution. Offenders cannot bargain with the court, and, in effect buy themselves out of sentences.[52]
Nevertheless, as the decision in O’Keefe itself shows, if the Court is satisfied about the genuineness of the offered restitution it may be a very relevant consideration in the sentencing.[53]
9.In an appropriate case it may be appropriate for a court to defer sentencing so as to permit a defendant to make good an offer made in the course of the sentencing submissions by paying into court the amounts necessary to make proper restitution. The circumstances (described by Debelle J as “unusual circumstances”) in Radjevic v Police[54] provide an example.
[41] Unreported, Supreme Court of South Australia, Court of Criminal Appeal, CCA No 8 of 1984 (King CJ).
[42] (1976) 14 SASR 291 at 294.
[43] Ibid.
[44] (1996) 187 LSJS 222 at 226.
[45] (1976) 14 SASR 291 at 295.
[46] Ibid at 295.
[47] (1995) 181 LSJS 20 at 22.
[48] Unreported, Supreme Court of South Australia, No 2671 of 1984 (Olsson J).
[49] [2000] SASC 106 at [81]; (2000) 76 SASR 404 at 421.
[50] [2005] QCA 73.
[51] See also R v Sheehan [2007] QCA 409.
[52] [1959] Qd R 395 at 400.
[53] Ibid at 401.
[54] (1997) 67 SASR 478.

A tension can often arise in this context between the notion that a person should not be able to buy their way out of what is a just and appropriate punishment for their illegal conduct and the notion that the making of restitution should be regarded as mitigatory for the reasons just summarised. Not everyone will be able to make restitution. Once funds have been stolen and dissipated (as usually happens) the capacity to make restitution will depend upon each offender’s personal circumstances. Care needs to be taken not to allow excessive credit for an act of restitution in the (probably unusual) case where a person is in a financial position to do so without having to suffer substantial financial or other personal detriment. It has been said that wealthy offenders should not be allowed to buy themselves out of a custodial sentence.[55] Nevertheless, this situation is likely to arise rarely and the cases consistently confirm the proposition that actual full restitution in fraud cases is an important factor in sentencing.[56]
[55] Re Tran; ex parte A-G (2002) 128 A Crim R 1; [2002] QCA 21.
[56] R v Bandjak [2011] SASCFC 19; R v Robertson (1984) 115 LSJS 51; R v Chaloner (1990) 49 A Crim R 370; Matulich v Police (2007) 252 LSJS 219, [2007] SASC 440; Bright v Police [2008] SASC 220.
In this case, the fact that a very substantial sum of more than $138,000 has been repaid is important as demonstrating contrition and that the appellant is, at the least, engaging in a process aimed at rehabilitation. In this latter respect it should be kept in mind that the appellant does not need to be rehabilitated from a propensity to commit criminal offences generally. This appellant has committed two, albeit very serious, criminal frauds many years apart and each of these incursions into criminal behaviour has been explained in terms that relate to her personality and psychological state, amenable to some degree to treatment and for which she is undertaking treatment through Ms Johnson.
However, the importance of the restitution in this case goes beyond the issue of contrition and consequential rehabilitation. As the victim impact statements disclose (summarised by the Magistrate in the passage quoted earlier in these reasons) the “injury, loss or damage resulting from the offence”[57] caused to the various victims is larger in quantum and broader in character than just the $138,000 stolen from the appellant’s employer. Nevertheless, this represented by far the most substantial harm directly caused by the appellant. The primary victim of this offending is very substantially (and unusually, it has to be said) much better off than in the case of most other victims of fraudulent conduct of this nature, because of the act of restitution. In this sense, the making of restitution is mitigatory of the offending (additional to showing contrition going to the question of rehabilitation). The harm caused to this victim has largely (although not entirely) been redressed. This mitigatory aspect of restitution was not referred to in the Magistrate’s brief remarks on this topic.
[57] Criminal Law (Sentencing) Act, s10(1)(e).
It is also the consistent policy of the courts to encourage the making of restitution.[58] Our society operates on the assumption that criminal sentences have an educative effect. The need for a sentence to incorporate an appropriate deterrent effect, both general and personal, is an important feature that is reliant on this assumption. The educative effect must work in other ways as well. In this case, the appellant has effected restitution of a very substantial amount. It was not made clear to her in advance what effect the making of such restitution might have on her sentence. In particular, it was not specified whether or not it would lead to a suspended sentence or, for example, only to a lower than otherwise non-parole period. I do not suggest that the appellant should have been informed of this. She would or should have been led to understand no more than that the making of full restitution would be helpful and a matter relevant to the Magistrate’s consideration of all components of the sentence.
[58] R v Afford unreported, Supreme Court of South Australia, Court of Criminal Appeal, CCA No 8 of 1984 (King CJ); SA Police v John (1995) 181 LSJS 20 at 22 and R v Bandjak [2011] SASCFC 19 at [80] (White J).
Nevertheless, there can be no doubt that, from the beginning, the appellant would have expected to receive a custodial sentence; the burden of submissions by way of mitigation put on her behalf was always to the effect that suspension of the inevitable term of imprisonment could be justified. In these circumstances, it is of concern that the failure to suspend in this case and the failure by the Magistrate to explain why the making of restitution of such a substantial amount was not, in the circumstances, sufficient to permit suspension, might act as a significant disincentive to other offenders faced with the decision of whether or not to make restitution. I recognise that the primary victim in this matter, the employer, would be anxious, as a good corporate citizen, to see that the appellant is properly punished for her offending. However, I also have little doubt of the importance to a victim in these circumstances of a sentencing regime that encourages full restitution of monies stolen or defrauded.
There is another factor that in my view should be taken into account. It is true that there are limits to the extent to which leniency can be granted when a defendant’s family or friends assist with making restitution for the reason that “there may simply be a shift of the burden of the crime from the original victim to persons other than the defendant”.[59] I will refer to this matter again when I deal (below) with the position of the appellant’s husband. However, I do not accept that there has been such a shifting of the burden of the crime away from the appellant in this case.
[59] R v Jennings (1996) 187 LSJS 222 at 226; R v Wirth (1976) 14 SASR 291 at 295 and R v Bandjak [2011] SASCFC 19 at [80] (White J).
According to the affidavit of Mr Warner, he and the appellant, who have been together now for some 27 years, have only modest joint resources. They were unable to borrow money by extending their house mortgage loan. As a consequence, Mr Warner’s retirement fund was used to achieve the restitution. He deposes in his affidavit to the fact that apart from the quite limited equity remaining in the house property, he is left with “no superannuation for retirement”. This is a matter that bears very much in a negative way not just on the financial but also on the personal circumstances of both Mr Warner and his wife, the appellant.
For the reasons just given, the issue of restitution in this case was deserving of very significant weight. It is difficult to form an appreciation of just how much weight the Magistrate in fact gave to this issue. The reference to it in the sentencing remarks is cryptic and suggests that its relevance for the Magistrate was much more confined than it should have been. I am satisfied that the Magistrate placed insufficient weight on the issue of restitution. Whilst his Honour accepted that it was “concrete evidence” of contrition he should also, in my view, have placed weight on the substantial amount involved (as mitigatory of the offending itself) the effect it could be expected to have on the appellant’s husband’s future financial security (particularly given his age) and the very real need to educate and encourage others, in similar circumstances, to make genuine efforts and to take all steps open to them to make full restitution where possible.
The effect of an immediate term of imprisonment on the appellant’s husband
Sub-section 10(1)(n) of the Criminal Law (Sentencing) Act provides that in determining the sentence for an offence, one of the factors to which a court must have regard is the probable effect any sentence under consideration would have on dependents of the defendant. The authorities in this area are to the effect that hardship to dependents of an accused person is not generally to be taken into account in an accused’s favour other than in extreme or exceptional circumstances.[60] The probable effect on defendants has been said to be a limited aspect of the power to exercise mercy[61] and the hardship must be of such a serious character so as to call for a merciful approach to sentencing.[62] It must be a matter that goes beyond the hardship which inevitably results from a bread winner being sent to prison; there must be something that demands the exercise of mercy.[63]
[60] See for example R v Wirth (1976) 14 SASR 291; R v Moffa(No 2) (1977) 16 SASR 155.
[61] Markovich v R (2010) 30 VR 589.
[62] R v Penno (2004) 236 LSJS 457, [2004] SASC 354.
[63] R v Maslen (1995) 79 A Crim R 199, Neill v Police [1999] SASC 270.
The position of the appellant’s husband, Mr Warner, is somewhat unusual. In 1995 a substantial sum of money was taken by the appellant from Mr Warner’s bank accounts by way of unauthorised withdrawals. Even though they were in a relationship at the time and had been for quite some years, the matter was dealt with through the criminal courts. Nevertheless, the two of them reconciled and have been together since. Notwithstanding this breach of faith and the loss of a substantial amount of money, Mr Warner continued in the relationship and continued to support the appellant. According to the psychological report prepared by Mr Balfour in 1995, when the appellant was sentenced for this offending, her offences were not motivated by avarice. The money was mostly frittered away on trivial items and the offending, according to Mr Balfour, was to be seen as acts of passive aggression which can arise when a non-assertive individual becomes distressed about an interpersonal relationship. Such a person will “frequently internalise this and become depressed. Because they are unable to overtly express their anger they develop covert ways of expressing their anger.”
Mr Warner has now, for a second time, taken financial responsibility for his wife’s criminal conduct by providing more than $138,000 from his superannuation fund in order to permit restitution to be made. He has done so within the context, it would seem, of there now being a clear recognition of the appellant’s personality and psychological problems, that they appear to be amenable to treatment and that she is undergoing that treatment with some success, according to Ms Johnson. Mr Warner has deposed, in his affidavit, as to his present medical and financial circumstances including, to the effect, that until he can apply for work, after having and recovering from back surgery, the appellant will be responsible for all financial aspects of the relationship. In particular, if the appellant were to be required to serve a term of imprisonment, it would not be possible for them to maintain the mortgage repayments and their home would likely be repossessed by the bank and sold. Any such forced sale would be in circumstances (as deposed to) where Mr Warner and the appellant would receive only a modest capital return.
Given Mr Warner’s age and lack of other financial resources, all of this would add significantly to the price he has paid already in both supporting the appellant throughout the relationship and, in particular, assisting by way of providing the $138,000 made available for restitution. It is likely that if the appellant were to be required to serve an immediate term of imprisonment, Mr Warner would suffer a very significant financial detriment for a third time at the hands of his wife.
It must be recognised, for the reasons briefly outlined at the beginning of this section, that the effect of the appellant’s conduct on her husband, as a dependent at least for the present, can only carry limited weight. I do not suggest that, on its own, it would be a particularly significant consideration going to the question of suspension. However, it is a matter that deserves some weight and it appears to be a matter that was overlooked by the Magistrate. This is quite understandable given that his Honour appears only to have had before him the bare information that restitution had been made but no information as to the source of that restitution, as to the effect that making restitution has had on the financial circumstances of the appellant and her husband and as to the likely worsening of those financial circumstances, particularly with respect to Mr Warner, that would arise in the event that the appellant were required to spend time in prison.
The appellant’s mental state
Available to this Court, but not to the Magistrate, is the report prepared by Ms Mary Johnson subsequent to sentencing and dated 31 January 2014. Ms Johnson has been the appellant’s treating clinical psychologist since late 2012. According to Ms Johnson, her client suffers from major depression and panic disorder.[64] Ms Johnson in her latest report specifically addressed the applicant’s current level of psychological functioning.
I have noted, in the time since Ms Warner was released under appeal from prison that there has been a marked deterioration in her presentation, such that therapeutic gains are very discernibly diminished.
. . . .
Turning now to specific symptomology, [the appellant] is feeling extreme guilt, sadness, pessimism, sense of failure and worthlessness, loss of pleasure, interest and energy, sleep and appetite problems, and difficulties with decision making, suicidal ideation, concentration and memory.
[64] This is to be contrasted with the findings of Dr Raeside, based on his single interview of the appellant on 18 June 2013, that whilst she had a number of depressive and anxiety symptoms over many years, including during the period she was offending, he could not find strong evidence to suggest a severe mental illness at the time of the offending. Dr Raeside was enquiring into the mental health of the appellant with a view to advising as to whether or not she was suffering from a mental illness at the time of the alleged offending such as to give rise to a mental incompetence defence. He was unable to support such a defence.
Ms Johnson expressed the view in her latest report that the appellant was suffering “an extremely severe and reactive depression and is ruminating on thoughts of death and suicide”. In Ms Johnson’s view, any incarceration would exacerbate the appellant’s chronically depressed state such that the risk of suicide would also be exacerbated. Ms Johnson assessed Ms Warner as a severe risk of suicide. Her opinion gains some support from Dr Raeside’s prognosis (in July 2013) that if imprisoned, the appellant “would be at a marked risk of developing a severe depressive and anxiety disorder … and would certainly need early medical and psychiatric review.”
I am not so much concerned about the appropriate diagnostic label to be applied to the appellant’s mental state. What is of concern is that the appellant’s treating clinical psychologist has expressed in quite strong terms a concern that the appellant is a potential suicide risk. The Crown was given an opportunity to obtain a second report dealing with the appellant’s post-sentence state but did not do so. In the circumstances, I am not in a position to lightly ignore the opinion expressed by Ms Johnson in this respect. Ordinarily, one would expect members of the clinical psychology profession to be guarded in the way they arrive at, justify and express such opinions. They can expect that while a court will not necessarily accept as conclusive any such opinion, it will be obliged to place weight on it.
The mental state of a defendant, such as depression and, I would add, a capacity for suicidal ideation and the fact that the defendant is a suicide risk, can be a basis for extending leniency,[65] although it is of course only one factor to be taken into account. I note, again, that this opinion evidence from Ms Johnson concerning the appellant’s mental state and Ms Johnson’s concern as to her risk of suicide, as at a time after the appellant had been sentenced and after she had spent 24 hours in custody and after she had been released on bail pending appeal against the failure to suspend the sentence, was not before the sentencing Magistrate.
The appellant’s treatment and prognosis
[65] Wilson v Green (1973) 61 LSJS 380; Cook v Huffa (1975) 12 SASR 277.
Of particular concern in this matter is that this is the second time the appellant has committed a sustained course of offences involving serious dishonesty. A related concern is the explanation that Dr Raeside has given for the offending on each occasion. According to Dr Raeside, the primary diagnosis is that of mixed personality disorder with narcissistic and obsessive compulsive traits. It is this underlying personality disorder that has manifested itself on each occasion the appellant has offended. Dr Raeside accepted that the appellant appeared to have benefited from the psychological treatment she had been receiving. However, in his view, it is not likely that psychological therapy would “cure” or significantly alter her personality style.
For this reason Dr Raeside expressed concern about the appellant’s risk of further offending. He concluded his report in this way.
Finally there is obviously some concern about her risk of further offending given her previous issues with problematic gambling and the ongoing nature of the more recent offending. Because it appears associated with her personality disorder and there is little “cure” for such a condition then she remains a moderate risk of offending. Therapy aimed at increasing her insight and assisting her to deal more adaptively with stressful situations is likely to reduce her risk.
However, and as the above quoted passage suggests, Dr Raeside was not dismissive of the benefits of continued psychological therapy. Under the heading “Treatment and prognosis”, Dr Raeside said this.
[The appellant] appears to have benefited by the psychological treatment she has been receiving, particularly in terms of increasing her understanding as to some of the causes for her behaviour, as well as being provided with various relaxation techniques to address some of her anxiety symptoms. However, she still lacks considerable insight into the nature of her underlying personality disorder, which would be entirely normal given the relatively short period in which she has been addressing these issues.[66] She would necessarily require considerable psychological therapy to develop an adequate understanding of the role that her personality disorder has had in various difficulties in her life. Whilst it is not likely that psychological therapy would “cure” or significantly alter her personality style, such therapy could lead to increased insight that may assist her to look at more adaptive ways of dealing with stress in her life rather than resorting to more maladaptive patterns of behaviour.
Consequently, for the Court’s purposes, there are obviously significant issues about whether [the appellant] is incarcerated or not should she be convicted of these charges. Should she receive a non-custodial sentence then she would be able to continue with the current psychological therapy, which has been helpful, and ultimately hopefully could help her to address the maladaptive aspects of her personality disorder.
Should [the appellant] be incarcerated then she is at marked risk of developing a severe depressive and anxiety disorder in such an environment. She would certainly need early medical and psychiatric review. Periodic psychiatric review, primarily managing her with medication, would be the type of treatment that would be available to her. She would be unlikely to receive any individualised psychological therapy in custody and if so, would only focus on her distress about being incarcerated rather than addressing any of the more long standing issues.
[66] In this respect, it is to be noted that Dr Raeside saw the appellant in June of 2013, the appellant had only started her assessment and treatment with Ms Johnson in December 2012 and that it is now 2014.

It can be seen that in important respects relevant to the question of Ms Warner’s capacity for rehabilitation, including, the difficulties she confronts in this respect and the importance of the psychological treatment provided by Ms Johnson to her prospects of reducing her risk of further reoffending, both Dr Raeside and Ms Johnson are quite closely aligned.
There is a risk, for the reasons Dr Raeside has given, that the appellant might commit further dishonesty offences. However, I am not persuaded that a term of imprisonment necessarily will assist to prevent this. In this respect, because of the nature of the appellant’s personality disorder and other psychological difficulties, the effect that an immediate term of imprisonment might have by way of personal deterrence is to be considered, at best, as problematic.[67] Furthermore, both Dr Raeside and Ms Johnson agree that, through the treatment being provided by Ms Johnson, the appellant is making progress towards rehabilitation in this respect. The continuation of this treatment and progress towards rehabilitation would appear to be the best option available for the protection of the public. To incarcerate the appellant now would run the real risk of undoing the good work that has been done to this point and arguably exacerbate rather than reduce the risk of the appellant offending in this way again. It is in this sense that, in my view, the Magistrate appears to have placed insufficient weight on the importance of the appellant continuing with her treatment.
[67] See generally R v Verdins (2007) 169 A Crim R 581; [2007] VSCA 102.
Conclusion
This was the second time the appellant has offended in this way. This consideration had a strong influence on the Magistrate’s refusal to suspend[68] but, given the other matters I have referred to, too much influence. The previous offending occurred many years earlier. From the end of the first period of offending to the beginning of the second period about eight years had elapsed. The appellant has not offended again over a period of five years (four and half years at the time of sentence) and is now, for the first time, engaging in appropriate psychological treatment. Notwithstanding the undoubted seriousness of the present offending, the question of suspension remained open on the information before the Magistrate.[69]
[68] Remarks on Penalty at [13].
[69] Kovacevic v Mills [2000] SASC 106 at [40], [43]; R v O’Toole [2013] SASCFC 18 at [50].
With the benefit of the additional evidence available on appeal (the affidavit of Mr Warner and the new report by Ms Johnson) I am satisfied that, at the time of sentencing, insufficient weight was placed on the question of restitution when understood in its full context, on the mental state of Ms Warner and in particular the potential risk of suicide, again when understood in its full context, on the effect that an immediate term of imprisonment would have on Mr Warner who himself has suffered as a result of the appellant’s conduct and on the importance to the community of the appellant being able to continue with her psychological treatment. These matters, in combination, cause me to conclude that the discretion not to suspend miscarried. The appeal is allowed and the sentence of the Magistrate set aside.
In undertaking a resentencing of the appellant, I see no reason to depart from the starting points for head sentence and non-parole period determined by the Magistrate nor from the discounts given with respect to the pleas of guilty. The head sentence of two years with a non-parole period of 12 months is confirmed. However, for the reasons set out, I am satisfied that good reason does exist to suspend the term of imprisonment and I will do so provided that the appellant is prepared to enter into a bond to be of good behaviour with conditions.
Given the appellant’s underlying psychological and personality disorder problems, and the utmost importance to the appellant’s continuing rehabilitation of addressing these problems, the term of the bond should be the maximum three years permitted by legislation. In addition, it will be a term of the bond that the appellant be supervised by a community corrections officer for that three year period. It will be a term of the bond that the appellant is to undergo such psychiatric, psychological and other forms of counselling and treatment that the community corrections officer responsible for her supervision reasonably requires. I direct that a copy of Dr Raeside’s report and the various reports of Ms Mary Johnson be provided to the Department of Community Corrections.