White v Taylor

[2001] WASCA 350

WHITE -v- TAYLOR [2001] WASCA 350

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 350
Case No:	SJA:1132/2001	Heard:	25 OCTOBER 2001
Coram:	HASLUCK J	Delivered:	8/11/01
No of pages:	18	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	CRAIG STEPHEN WHITE DARREN LINDSAY TAYLOR
Catchwords:	Criminal law Sentencing Fraud offences by medical practitioner Unlawful use of prescription forms Repetition of offences for lengthy period Whether sentence of imprisonment the appropriate option Sufficient consideration given to suspended imprisonment
Legislation:	Criminal Code, s 409(1)(a) Justices Act 1902, s 196, s 199 Sentencing Act, s 6, s 39, s 76(3), s 89
Case References:	Bacich v Illich [2000] WASCA 133 Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998 Brittain v The Queen [2001] WASCA 117 Cross v Cook [2001] WASCA 242 Dicks v Farrell [2001] WASCA 124 Dinsdale v The Queen (2000) 175 ALR 315 Etrelezis v The Queen [2001] WASCA 327 Griekspoor v Scott (2000) 23 WAR 530 House v The King (1936) 55 CLR 499 Latham v The Queen [2000] WASCA 338 Mill v The Queen (1988) 166 CLR 59 R v GP (1997) 18 WAR 196 R v Holder and Johnston (1983) 13 A Crim R 375 R v Liddington (1997) 18 WAR 394 R v Tait (1979) 46 FLR 386 Radebe v The Queen [2001 WASCA 254 Rowlands v Caporn [2001] WASCA 66 Wongawol (1998) 101 A Crim R 350 Barrick (1985) 81 Cr App R 78 Chan (1988) 38 A Crim R 337 Lowndes v The Queen (1999) 195 CLR 665

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : WHITE -v- TAYLOR [2001] WASCA 350 CORAM : HASLUCK J HEARD : 25 OCTOBER 2001 DELIVERED : 8 NOVEMBER 2001 FILE NO/S : SJA 1132 of 2001 BETWEEN : CRAIG STEPHEN WHITE

Appellant

AND

DARREN LINDSAY TAYLOR
Respondent

Catchwords:

Criminal law - Sentencing - Fraud offences by medical practitioner - Unlawful use of prescription forms - Repetition of offences for lengthy period - Whether sentence of imprisonment the appropriate option - Sufficient consideration given to suspended imprisonment

Legislation:

Criminal Code, s 409(1)(a)

Justices Act 1902, s 196, s 199
Sentencing Act, s 6, s 39, s 76(3), s 89

Result:

Appeal dismissed

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Category: B

Representation:

Counsel:

Appellant : Mr J G Kitto
Respondent : Ms T R Watt

Solicitors:

Appellant : Kitto & Kitto
Respondent : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Bacich v Illich [2000] WASCA 133
Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998
Brittain v The Queen [2001] WASCA 117
Cross v Cook [2001] WASCA 242
Dicks v Farrell [2001] WASCA 124
Dinsdale v The Queen (2000) 175 ALR 315
Etrelezis v The Queen [2001] WASCA 327
Griekspoor v Scott (2000) 23 WAR 530
House v The King (1936) 55 CLR 499
Latham v The Queen [2000] WASCA 338
Mill v The Queen (1988) 166 CLR 59
R v GP (1997) 18 WAR 196
R v Holder and Johnston (1983) 13 A Crim R 375
R v Liddington (1997) 18 WAR 394
R v Tait (1979) 46 FLR 386
Radebe v The Queen [2001 WASCA 254
Rowlands v Caporn [2001] WASCA 66
Wongawol (1998) 101 A Crim R 350

Case(s) also cited:

Barrick (1985) 81 Cr App R 78


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Chan (1988) 38 A Crim R 337
Lowndes v The Queen (1999) 195 CLR 665

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1 HASLUCK J: This is an appeal against sentence. The question is whether the learned sentencing Magistrate erred in finding that the offences in question were so serious that imprisonment was the only available sentencing option.

2 The appellant, Craig Stephen White, was charged with 116 counts of fraud contrary to s 409(1)(a) of the Criminal Code.

3 Section 409(1)(a) of the Code provides that any person who, with intent to defraud, by deceit or any fraudulent means obtains property from any person is guilty of a crime and is liable to imprisonment for 7 years. Upon summary conviction an offender is liable to imprisonment for 2 years or a fine of $8,000, save that if the property obtained or benefit gained is more than $10,000, the charge is not to be dealt with summarily.

4 The matter came before the learned Magistrate, Mr Malone SM, in the Court of Petty Sessions at Perth on 1 August 2001. On that occasion the appellant was represented by counsel, Mr Kitto. When the various counts were put to him, the appellant pleaded guilty and elected for summary jurisdiction in respect of all of the matters.

5 The prosecutor placed before the Court a statement of material facts to this effect. The appellant was a 34-year-old general medical practitioner, practising at both King Edward Memorial Hospital and Princess Margaret Hospital for Children. On 116 occasions, between 4 September 2000 and 19 April 2001, he attended a total of 23 pharmacies, and using his own prescription pads, filled out the forms in the names of Ms J Wright and Ms K Ryan, without their knowledge. The prosecutor described Ms Wright as a former girlfriend of the appellant.

6 The prosecutor went on to say that the appellant informed pharmacy staff that Wright and Ryan were his patients and he would be collecting prescription drugs on their behalf. A number of prescription drugs, including Proladone and Pethidine, which are drugs of addiction, and Panadeine Forte, were provided to the appellant. None of these drugs were requested by Wright and Ryan, nor were they ever received by them.

7 The prosecutor said further that on numerous occasions the appellant used the health care card number of Wright and Ryan to purchase the prescription drugs at a reduced price. When spoken to by detectives, the appellant refused to make any comment. The appellant's record was then submitted to the Court.

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8 Counsel for the appellant, Mr Kitto, put up a plea in mitigation on behalf of his client. He said that the appellant was 34 years of age. He was educated at Perth Modern School and progressed to the University of Western Australia where he completed the degree of bachelor of medicine. He was married at a comparatively early age with he and his wife having twin daughters. It was said that as a consequence of his wife's ill-health, the appellant began to use pain-killing drugs himself. Proladone is a suppository regularly prescribed for people suffering ongoing pain.

9 The appellant was eventually obliged to receive psychiatric counselling for his addiction and reports were submitted to the Medical Board. The gradual breakdown of his marriage led to a period of depression and between August and November of 1996, while he was subject to depression and drug dependency, he committed a series of home invasions and, having stolen a chequebook, tried to cash a cheque for $5000. He eventually found himself before the District Court and was sentenced to a term of imprisonment for 4 years.

10 Counsel for the appellant conveyed to the learned Magistrate that in prison the appellant was subjected to three brutal attacks, one of which was a sexual assault by two male attackers, and as a consequence of this he was admitted to hospital for period of one week. Upon his release from prison in mid-1998 he was admitted to a general practitioners' training program and with the support of the Medical Board managed to reinstate his career. By this time he was in a relationship with Ms Wright and was again making use of pain-killing drugs. It seems that he made use of Ms Wright's health care card in order to obtain drugs. When the relationship between the parties broke down, this led to his conduct being investigated by the police. Counsel submitted to the learned Magistrate that no-one had been financially disadvantaged as a result of the events the subject of the charges.

11 Counsel referred to the fact that the appellant was now in a stable relationship. His de facto wife was expecting the birth of their first child in the near future. Steps had been taken to overcome the problem of addiction and the appellant was also under a very tight monitoring regime by the Medical Board. The appellant was in employment and presently on a training program with the Royal Australian College of General Practitioners.

12 The transcript of the hearing in the Court below indicates that the learned Magistrate took time to consider the submissions and materials

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that had been placed before him. He indicated that he had taken account of the appellant's record of convictions and the drug inventory that was tendered which showed the dates on which the various prescriptions were handed in to the various pharmacies. Further, he had looked at the report of Dr Malcolm Roberts dated 16 September 2000 and a letter from Dr George O'Neil dated 31 August 2001, verifying that the appellant had been "quite ill with opiate dependency during the last four to five years". Dr O'Neil went on to say that he was confident that the appellant's disease would be controlled for the next three to six months and if he had a second implant during the next three to six months, he was confident that the opiate-seeking behaviour would be controlled for the following 12 months. The appellant should then be managed with implants 12-monthly to protect him and the community during the next five years.

13 In the course of his sentencing remarks the learned Magistrate summed up the background to the matter. He went on to say this:

"Now in my view, when one has a look at the frauds that were perpetrated in this matter, it in my view is sufficient to be seriously regarded, or regard as sufficient seriousness to have a sentence of imprisonment looked at.

Now dealt with in this court - the Court of Petty Sessions - the offence of fraud carries a maximum penalty of a fine of $8,000 or an imprisonment up to 2 years.

And that also shows to some extent, the seriousness with which parliament has indicated that these fraud matters are to be regarded.

Now as I say, I see imprisonment as being an appropriate option and I therefore turn my mind to the question of whether any sentence of imprisonment is to be suspended. Now as part of that consideration, it's effectively necessary for me to reconsider all of the factors that were appropriate to consider as part of the decision to impose imprisonment.

Now in respect of that, as I say, I regard these matters as being serious. The length of time and the deception involved, make them serious. In terms of the personal antecedents it is the case - as again was mentioned in submissions - that this isn't a symptom of a recently manifested drug problem. It is a symptom of a long-standing drug problem, that you simply haven't been able to control despite the involvement of the

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authorities in your profession; and of course of the professionals in your profession that have included some very eminent and capable psychiatrists and some purpose designed clinics, as I understand what Mr Kitto has indicated to me."

14 Having made these remarks, the learned Magistrate went on to observe that the personal antecedents of the appellant did not allow for the conclusion that he was a person of trouble-free character. He was unable to conclude that because the appellant had received implants and had a determination to beat the addiction that this would happen. The learned Magistrate noted also that he was not in a position to be sure one way or the other what the Medical Board might do in respect of the appellant's position. In all probability they would revisit the issues and thus, the appellant's future was somewhat unclear.

15 The learned Magistrate noted that a sentence of immediate imprisonment would have an impact upon the appellant's former wife, but the fact was that the former wife was available to take care of the children. The learned Magistrate then made these observations:

"Now what it all comes down to is that I am of the view that it is appropriate to sentence you to imprisonment given the seriousness of the matter. I have looked very carefully at the question of whether the sentence should be suspended. And sadly, I've come to the view that I don't believe in all of the circumstances that it is appropriate to suspend the term of imprisonment that I intend to impose.

Now I have to say that I don't necessarily agree with what your counsel says about it being characterised as a victimless crime. The situation is of course, that there is a regulated system in which only doctors and perhaps dentists have access to a prescription pad. You were part of a trusted and to some extent, elite professional group, who because of your training and ethics are to be trusted with the prescription pads.

The people - pharmacists - et cetera, filling those prescriptions do so on the basis that they are anticipated to be truthful, accurate and legitimate. And it is part of that system that is of course struck at, by people such as yourself, when you falsify prescriptions for your own purposes."

16 The learned Magistrate went on to say that he took into account that the appellant had pleaded guilty. He intended to reflect that "in two ways,

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by reducing the terms that I might otherwise have imposed for these matters, and also by making a number of the terms concurrent". He said that but for the guilty plea, he would have imposed a term of 12 months' imprisonment. But in view of the guilty plea, he intended to make the terms of imprisonment 9 months.

17 The Magistrate then proceeded to sentence the appellant as follows:

"i. 9 months imprisonment on the first count;

ii 9 months imprisonment on the second count, concurrent with the first count imprisonment;

iii. 9 months imprisonment on the third count, cumulative on the previous counts;

iv. 9 months imprisonment on all of the remaining counts, cumulative on each other and on the third count;

v. Effectively a head sentence of 18 months with eligibility for parole."

18 It was against this background that the appellant obtained leave to appeal on the following grounds:

"vi. The learned Magistrate erred in fact in finding that the offences were so serious that imprisonment was the only available sentencing option;

vii. The learned Magistrate erred in fact in finding that the terms of imprisonment imposed ought not be suspended;"

19 The evidentiary materials in the appeal book included the materials that had been submitted to the learned Magistrate.

20 It will be useful to look at some principles and statutory provisions bearing upon the sentencing issue before me.

21 It is apparent from s 196 of the Justices Act 1902 that the Court shall determine the appeal on the material before the Court below. There is power to receive further evidence as the Court thinks fit, especially with a view to clarifying what plea in mitigation or version of events the appellant wished to put before the Court below in regard to a sentencing issue. Rowlands v Caporn [2001] WASCA 66.

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22 Section 199 provides that the Court may dismiss the appeal, or set aside, quash or vary the decision or remit the case for rehearing. However, the Court is not required to set aside or quash that the facts or evidence in substance support the decision or if the Court considers that no substantial miscarriage of justice has occurred.

23 It is not enough in a sentencing matter that an appellate court might have exercised its discretion in a different manner. It must appear that some error has been made in exercising the discretion, such as acting upon a wrong principle, mistaking the facts or allowing extraneous or irrelevant matters to affect the decision made. The reasons of an appellate court must clearly find and identify error. Dinsdale v The Queen (2000) 175 ALR 315 at 317.

24 Nonetheless, it can be demonstrated that the end result is so inappropriate or excessive that there must have been an error in principle even though it cannot be identified. House v The King (1936) 55 CLR 499; R v Tait (1979) 46 FLR 386.

25 Section 6 of the Sentencing Act and related provisions set out principles of sentencing. The sentence must be commensurate with the seriousness of the offence. This is determined by taking into account the statutory penalty, the relevant circumstances, and any aggravating and mitigating factors. A sentence of imprisonment must not be imposed unless it is justified by the seriousness of the offence or a need to protect the community.

26 Aggravating factors are factors increasing the culpability of the offender. Mitigating factors include assisting the police and entering a plea of guilty, with weight being given to an early plea. The policy of the criminal justice system is to encourage pleas of guilty by properly rewarding them when they are made. Radebe v The Queen [2001] WASCA 254.

27 The sentencing options for a natural person are set out in s 39 of the Sentencing Act. A court must not use a particular option unless it is satisfied, having regard to the principles of sentencing mentioned earlier, that it is not appropriate to use any of the options listed before that option.

28 Having regard to the circumstances of the present case, I note that the list of options set out in the Act concludes with the imposition of an intensive supervision order with release; suspended imprisonment with release; or a term of imprisonment. Previously decided cases indicate that a court need not refer explicitly to each option, for the conclusion that a

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specific sentencing option is appropriate carries the necessary inference of satisfaction that all other options are inappropriate. Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998.

29 A court must first determine whether imprisonment is appropriate before addressing the question of whether the proposed term should be suspended. This was the sequence outlined by Kirby J in Dinsdale v The Queen (supra) which was subsequently approved by Parker J in Latham v The Queen [2000] WASCA 338 and by the Full Court in Etrelezis v The Queen [2001] WASCA 327. It is wrong to assume, however, that the primary purpose of suspending the sentence is rehabilitative. The considerations that are relevant for the imposition of a term of imprisonment must be revisited in determining whether to suspend the term: cfR v Liddington (1997) 18 WAR 394.

30 In Cross v Cook [2001] WASCA 242, being a case in which suspended imprisonment was allowed to an offender with a fourth conviction for driving without a valid licence, Miller J concluded that after Dinsdale it was not correct to say that a suspended sentence of imprisonment would only be allowed in exceptional circumstances. Such a sentence was always open and only if it is decided that it is not appropriate to impose such a sentence, may a court impose a term of immediate imprisonment.

31 It seems that it is permissible to give offenders a last chance by way of suspension of sentence, although the court is not obliged to do so. This point was made in another driving without a licence case, namely, Bacich v Illich [2000] WASCA 133. It is apparent from s 76(3) of the Sentencing Act 1995 that suspended imprisonment is not to be imposed if the offender was on parole at the relevant time. Griekspoor v Scott (2000) 23 WAR 530.

32 The totality principle requires a sentencing officer who has passed a series of sentences, each properly calculated in relation to the offence, to consider whether the aggregate is just and appropriate. This may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate. The ultimate decision is arrived at by reference to the totality of the criminality involved in all of the offences. R v Holder and Johnston (1983) 13 A Crim R 375 at 389; Mill v The Queen (1988) 166 CLR 59 at 63.

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33 I note in passing that once a court sentences a person to a term of imprisonment, the question of eligibility for parole must be considered. The relevant factors are set out in s 89 of the Sentencing Act. They include reference to the seriousness and nature of the offence, the offender's antecedents, and circumstances relevant to the offender at the time he would be eligible for release on parole. A bias towards eligibility is indicated, although the discretion in that regard cannot be triggered unless there is something in the materials which points positively towards such an outcome. Wongawol (1998) 101 A Crim R 350.

34 It emerges, then, that the object of the sentencing provisions is to arrive at an appropriate sentence for the particular offence or series of offences subject to application of the totality principle. The provisions of the Sentencing Act allow for a balance to be struck between a sentence sufficient to reflect the offender's culpability, which may act as a general and/or personal deterrent, and measures directed to rehabilitation. The sentencing objectives of deterrence and protection of the community will often require that a court be firm with an offender.

35 The first ground of appeal raises the question of whether the learned Magistrate erred in fact in finding that the offences were so serious that imprisonment was the only available sentencing option. The case for the appellant was that the appellant had substantially rehabilitated himself with the result that orders providing for community-based correction were appropriate. The issues raised by the first ground of appeal inevitably brought into play the question of whether any term of imprisonment thought to be appropriate ought to have been suspended. This was the issue raised directly by the second ground of appeal, namely, that the learned Magistrate erred in fact in finding that the terms of imprisonment imposed ought not to be suspended.

36 Counsel for the appellant on the hearing of the appeal reminded me of the mitigating factors presented to the learned sentencing Magistrate in the Court below. It was put to the learned Magistrate that no injury or damage was caused by the appellant's drug addiction, this being a controlled habit, and thus a condign sentence requiring the community to be protected was not required. The appellant was providing good service to the community as a doctor and had made substantial attempts to rehabilitate himself. He had succeeded or was close to succeeding in the breaking of his opiate addiction with the assistance of surgically implanted naltrexone. Reference was made to the severe hardship arising from imprisonment, this being illustrated by the attacks made on the appellant on a previous occasion. Further, the appellant's prospect of

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addiction recovery would be prejudiced and he would not be able to provide financial or emotional support for his two children or to his de facto who is presently pregnant.

37 The learned Magistrate had been advised of the appellant's earliest possible plea of guilty and that the course of offending was initially condoned and indeed facilitated by another party. At the time of the sentence the appellant was already under a very tight drug-monitoring regime and was in full-time employment with future career prospects.

38 Counsel for the appellant submitted on appeal that the Magistrate had erred in determining that the appellant's offending could only be dealt with by way of imprisonment. According to counsel for the appellant, the offending was little more than victimless retail trickery, albeit repeated on numerous occasions, but without any injury to third parties. The root cause of the offending was a problem of addiction which had been dealt with at the time of sentence by the appellant on his own initiative. The most common disposition for a drug addict committing numerous retail thefts of comparatively small items as a result of a drug addiction would be a community based order requiring the offender to participate in a program to treat the offending and the drug addiction recovery.

39 Counsel emphasised that pursuant to the principles enunciated in the Sentencing Act imprisonment must be strictly regarded as the sentence of last resort. In the circumstances of this case more appropriate dispositions were available.

40 Counsel for the appellant went on to submit that a second but equally clear error in the line of reasoning adopted by the learned Magistrate was apparent from his sentencing remarks.

41 The learned Magistrate's line of logic seemed to be that if the appellant had a promising career, imprisonment would be less appropriate because it could derail or end that career. In this case the appellant was likely to be suspended or deregistered from practice by the Medical Board and therefore his career was going to be jeopardised in any event. Accordingly, imprisonment would not be as harmful, as compared to a practitioner who would not be subject to such suspension or deregistration. Counsel for the appellant submitted that this approach was flawed and wrong. It could result in an offender being twice punished for the same act.

42 In regard to this aspect of the matter I was referred to a particular passage in the sentencing remarks where the learned Magistrate said this:

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" … in terms of suspending a prison sentence that I am expressing surprise about Dr White being able to continue on in practice. I mean, I'm a bit surprised he will be able to do that. And suspending the term to enable him to do that may be naïve on my part, because he may not be able to anyway …"

43 Counsel for the appellant submitted that the inference from these remarks was that the learned Magistrate would be more likely to suspend the term of imprisonment if the Medical Board was not punishing the appellant by suspension of his medical licence.

44 Counsel sought to identify a third error in those passages of the sentencing remarks in which the learned Magistrate arguably misconstrued the present effect of the naltrexone implants to treat the appellant's opiate addiction. The learned Magistrate's summary of Dr O'Neil's letter was that the appellant would remain opiate-free for the next six months. The learned Magistrate then went on to say that what he understood the medical adviser to mean by that was "that if he takes medication, he might be in serious trouble from the body's reaction. But after the six months the medication will cease to have that effect. So then Dr White will be on his own resources … and the prognoses would have to be pessimistic given the previous failure …". The learned Magistrate's comments seemed to depend upon a degree of supposition and were contrary to the medical evidence submitted by Dr O'Neil. In any event, the appellant had never had "a previous failure" because he had not been treated with naltrexone implants before.

45 According to counsel for the appellant, the error in the learned Magistrate's reasoning was perpetuated when he said "that it would be just blind faith for me to conclude that because you have received the implants and made yet again, the determination to beat the addiction, that therefore this time it's going to happen."

46 Counsel submitted that the correct approach should have been as follows. The appellant has previously attempted to overcome his addiction by means of oral naltrexone and counselling. On 20 June 2001, on his own initiative, he received two implants in a further attempt to overcome the addiction. The uncontested medical evidence was that the implants would control his addiction for the next three to six months and that he could be further fortified against a relapse by further implants. The appellant was presently drug-free, and subject to a tight drug testing and monitoring regime as part of his employment and registration with the Medical Board. The appellant had not previously had the benefit of a

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community-based penalty, or a suspended sentence, either of which dispositions would enable the existing treatment regime and self-rehabilitation of the appellant to continue.

47 Counsel submitted that the learned sentencing Magistrate went beyond not giving the appellant the benefit of the doubt on the question of rehabilitation. His Worship in fact went the other way by positively concluding that the appellant's rehabilitation would be not likely to succeed, and therefore, by inference, imprisonment would not deprive him of the opportunity of successful treatment and rehabilitation. This represented a fundamental flaw in the reasoning and demonstrated, in the context of the grounds of appeal, that the learned Magistrate had erred in determining that immediate imprisonment was the only available sentencing option and without giving proper consideration to whether the terms of imprisonment in contemplation ought to be suspended. The decided cases, and especially Dinsdale, clearly required that the learned Magistrate, in considering the question of imprisonment, should revisit and look carefully at all the factors bearing upon the issue of immediate imprisonment. It was apparent from the sentencing remarks that the process of giving double value to the relevant factors had not been followed.

48 Counsel for the respondent reminded me that the maximum punishment for an offence under s 409(1)(a) of the Criminal Code on a summary conviction was 2 years' imprisonment or a fine of $8,000. It was apparent from the decision of the Full Court in Bessell that save in very exceptional circumstances a term of imprisonment is inevitable when breaches of trust are involved, regardless of the amount of money obtained. The seriousness of the offence and the deliberate, preplanned and prepared nature of the offence, involving, as it did, the preparation of false documentation to obtain the medication, made the offence a serious example of this kind of offence. Dicks v Farrell [2001] WASCA 124 at 11.

49 Counsel for the respondent drew upon the reasoning in Bessell in order to submit that various matters must be considered by the Court in determining the appropriate sentence on a charge of fraud. Such matters included the quality and degree of trust reposed in the offender, including his rank, the period over which the fraud or thefts have been perpetrated, the use to which the money or property dishonestly taken was put, the effect upon the victim, the impact of the offences on the public and public confidence, the effect on fellow employees or partners, the effect on the

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offender himself, his own history, and those matters of mitigation special to himself.

50 Counsel for the respondent submitted that the learned Magistrate had taken account of various specific matters when sentencing the appellant. These included that he was a practising medical practitioner and thereby had the privilege of access to his own prescription pads. He continued the falsification of the prescription by presenting them in person to the pharmacy, relying on his trusted position as a doctor to accept the medications on behalf of his patients, thereby demonstrating a breach of trust. This continued even after the Medical Board was aware of and monitoring the situation. The fraud was committed over a seven-month period on 116 occasions involving 23 pharmacies with the appellant often presenting multiple prescriptions in one day. The drugs accessed were used by the appellant to support his addiction to prescribed medication. The learned Magistrate accepted that such a case would diminish public confidence in the medical profession. The learned Magistrate took account of the fact that the appellant had joint custody of his twin daughters with his estranged wife and was expecting a child with his new partner. It was noted that he had been addicted to pain-killers since 1994 and had previously been sentenced by the District Court to a total of 4 years' imprisonment for eight counts of burglary of habitations and one count of possessing house-breaking implements.

51 Counsel for the respondent said that the sentencing remarks reflected an awareness that despite psychiatric assistance and intervention by the Medical Board, the appellant had been unable to control his addiction to prescription medication. In mitigation, the appellant had recently attempted to address his addiction with the assistance of anti-opiate antagonist implants in consultation with Dr George O'Neil. He was in a stable relationship and on a further training program with the Royal Australian College of General Practitioners.

52 Counsel for the respondent accepted that the effect of ss 39(2) and 76 of the Sentencing Act was to provide an unfettered discretion to suspend a sentence of imprisonment. The decision of the High Court in Dinsdale established that this involved a two-step process, being, first, a determination by the sentencing Judge that a term of imprisonment was called for and, second, a determination that such a term of imprisonment should be suspended for a period set by the Judge. The same considerations relevant to both the offender and the offence, whether aggravating or mitigating, had to be applied at both stages of the two-stage test.

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53 Counsel for the respondent went on to submit, however, that in reviewing the relevant factors, the gravity of the offence in certain cases could be taken as outweighing all other factors so as to make a suspended sentence inappropriate. R v GP (1997) 18 WAR 196; R v Liddington (supra). This was so even when the offender had made conscientious efforts to rid himself of his drug problem. Brittain v The Queen [2001] WASCA 117. Another factor that might render a suspended sentence inappropriate was the need for a sentence to demonstrate the condemnation of the community for particular offences.

54 Counsel for the respondent submitted that the offence in the present case was serious and required general deterrence and condemnation to protect the integrity of the medical profession and the use of prescriptions. The appellant had falsified prescriptions on 116 occasions and attended 23 pharmacies to fill the falsified prescriptions, over a seven-month period. These offences continued even after the offences came to the attention of the Medical Board in March 2001. While the appellant had made an attempt to rid himself of his drug habit by having anti-opiate implants, being a factor which ought to be taken into account, a factor of this kind was outweighed by the serious nature of the offence. Put shortly, no demonstrable error was reflected in the sentencing remarks of the learned Magistrate and the Court below had been correct in concluding that the only appropriate punishment was an immediate term of imprisonment. In these circumstances, and in the absence of any identifiable error, an appellate court should not intervene.

55 It is apparent from the sentencing remarks of the learned Magistrate that he was fully aware of the precept reflected in s 6(4) of the Sentencing Act that a court must not impose a sentence of imprisonment unless the seriousness of the offence is such that only imprisonment can be justified or the protection of the community requires it. He referred to this precept expressly and identified those elements in the facts and matters before him which underscored the seriousness of the offence, namely, the position of trust occupied by the appellant, the repetition of the offences, the stratagems employed to avoid detection, such as the attendance at various pharmacies, the use of false names, and the continuance of the misconduct after the Medical Board had taken an interest in the matter. The decided cases indicate that in circumstances of this kind, it is certainly open to the court to impose a sentence of immediate imprisonment. Accordingly, I am not satisfied that any error has been demonstrated in the learned Magistrate's refusal to make orders for community-based correction in these circumstances.

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56 I note in passing in regard to that aspect of the matter that the learned Magistrate clearly took account of the appellant's plea of guilty as a mitigatory factor and of the totality principle, for he made specific provision for the sentence that might otherwise have been applicable to each count to be discounted and for all but one of the terms to be served concurrently, so as to produce an aggregate sentence of 18 months' imprisonment with eligibility for parole. Evidentiary materials supported the learned Magistrate's view that the appellant's actions were referable to a long-standing drug problem and it could not be assumed that he was a "trouble-free" character or that his rehabilitation was necessarily complete. These considerations also weigh against any finding of identifiable error.

57 When one turns to the question of whether the learned Magistrate erred in finding that the term of imprisonment ought not to be suspended, I am obliged to note immediately that the learned Magistrate in his sentencing remarks adverted to this option explicitly, and in the manner required by the High Court in Dinsdale went on to say that it was necessary for him "to reconsider all of the factors that were appropriate to consider as part of the decision to impose imprisonment". Accordingly, there is no obvious error or extraneous consideration to be found in the sentencing remarks which might warrant the interference of an appellate court with a discretionary judgment. It was certainly open to the learned Magistrate to conclude that the seriousness of the offences and the elements of premeditated criminality involved in persisting with the offences over a lengthy period outweighed the mitigatory circumstances, with the result that a suspended sentence could not be justified. Dicks v Farrell (supra). While an offender's addiction is a matter which arouses sympathy, it is not necessarily a matter which, of itself, entitles the offender to any less punishment than a person who is not addicted. Brittain v The Queen (supra) at par 23.

58 This brings me to the subsidiary lines of argument advanced by counsel for the appellant. To my mind, the learned Magistrate was entitled to take account of a degree of uncertainty as to how the Medical Board might respond to the full range of offences committed by the appellant. As I have already noted, he was also entitled, having regard to the somewhat equivocal nature of the medical evidence before him, to adopt a cautious approach to the question of whether the appellant had fully or substantially overcome his problem of addiction. Accordingly, in my view, it cannot be said that the learned Magistrate misconstrued the facts before him to such an extent that an appellate court would be warranted in interfering with the exercise of the Magistrate's discretion.

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The decided cases are adamant that it is not enough that an appellate court might have exercised its discretion in a different manner.

59 In summary, then, I consider that in the circumstances of the present case it was open to the learned Magistrate to conclude that the seriousness of the offences and the need for deterrence in order to protect the integrity of the medical profession's use of prescriptions justified the imposition of immediate imprisonment for an aggregate term of 18 months in respect of the 116 counts in issue. Specific errors in the exercise of the learned Magistrate's sentencing discretion have not been demonstrated. It follows that the appeal will be dismissed.