Wittwer v Police - [2004] SASC 226

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WITTWER v POLICE
Judgment of The Honourable Justice White
28 July 2004
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PRINCIPLES ON WHICH COURT ACTS
INTERFERENCE WITH DISCRETION - PENALTY - IMPRISONMENT - SUSPENSION OF SENTENCE

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT
FACTUAL BASIS FOR SENTENCE - PROOF AND EVIDENCE
Appeal against sentence - Two series of offences involving fraud - total value fraudulently converted was $37, 845 - Appeal by way of rehearing - Meaning of rehearing under s 42 of Magistrates Court Act 1991 - Principles applicable to appeals challenging exercise of discretion - Magistrate refused to accept mitigating factor submitted by appellant - Whether Magistrate was entitled to reject that factor without hearing evidence from the prosecution - Whether sentence ought to have been suspended - Objective seriousness of offences - Magistrate did not err in failing to suspend sentence - Appeal dismissed.
Magistrates Court Act 1991 s 42; Criminal Law Consolidation Act 1935 s 184, s 195; Criminal Law (Sentencing) Act 1988 s 18A, s 38; Supreme Court Rules r 97; Justices Act 1921, referred to.
House v The King (1936) 55 CLR 499; Dinsdale v The Queen (2002) 202 CLR 321; Naera v Police (1995) 184 LSJS 328; Taylor v Hayes (1990) 53 SASR 252; Ware v Betts (1987) 134 LSJS 212; Wessling v Police (2004) 88 SASR 47; R v Olbrich (1999) 199 CLR 270; R v Lobban (2001) 80 SASR 550, applied.
Weaver v Samuels [1971] SASR 116; Anderson v The Queen (1993) 177 CLR 520; R v Morrison [1999] 1 Qd R 397, distinguished.
Ware v Betts (1987) 134 LSJS 212; Williams v McDonald (1984) 113 LSJS 210; Police v Cadd (1977) 69 SASR 150; Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Rehearing"

WITTWER v POLICE
[2004] SASC 226
Magistrates Appeal
WHITE J
Introduction

This is an appeal, pursuant to s 42 of the Magistrates Court Act 1991, against sentence.
The appellant was charged on information with seven counts of obtaining money by false pretences, contrary to s 195(1)(a) of the Criminal Law Consolidation Act 1935. Each of those offences occurred in the period 16 April 1999 to 13 May 1999 inclusive. The appellant was a co-signatory with her former partner on bank accounts held with the ANZ Bank in the names of their two children. The appellant forged the signature of her partner on withdrawal slips and presented them to the bank on seven different occasions. She thereby withdrew from the two accounts sums totalling $8,400. None of this money has been recovered.
A second series of offences occurred in 2001. The appellant was charged on information with 26 counts of fraudulent conversion contrary to s 184(1)(a) of the Criminal Law Consolidation Act. In addition, on the same information, the appellant was charged with one count of larceny as a servant. Each of these offences occurred in the period 2 February 2001 to 13 June 2001.
At the time of the second series of offences, the appellant was an employee of two companies, GPJ Tree Specialists Pty Ltd and Mechanical Vegetation Solutions Pty Ltd. The appellant had commenced her employment with those companies on 2 February 2001. She was employed to attend to the payroll and to the payment of accounts of those companies. The appellant diverted monies from the accounts of those companies to her own account for her own use or benefit. The appellant fraudulently converted $14,930.33 from GPJ Tree Specialists Pty Ltd and $13,219.31 from Mechanical Vegetation Solutions Pty Ltd. The total amount involved was $28,149.64.
None of the money obtained by way of the false pretences, nor the fraudulent conversion, has been recovered.
The charge of larceny as a servant related to the theft from the two employing companies of computer software and related documents to the value of $1,296.00. As I understand it, those items were substantially recovered.
The Sentence of the Magistrate
The Magistrate summarised the appellant’s conduct as follows:
“… during two non-continuous periods of four weeks and 19 weeks respectively, that is, about 23 weeks in all, you engaged in two separate courses of conduct, each consisting of a series of related criminal acts involving repetitive acts of dishonesty on a significant scale. As a result of your criminal conduct, you obtained money in the amount of $36,549 and software and documents valued at $1,296 making a total of $37,845.”
In respect of the first series of offences, the Magistrate considered six months imprisonment to be appropriate. In respect of the second series of offences, including the offence of larceny as a servant, the Magistrate considered 18 months imprisonment to be appropriate. Further, he considered it appropriate that those two sentences should be cumulative.
The Magistrate then applied a discount of 15 per cent in consideration of the appellant’s plea of guilty. That plea had been made rather late. Although the appellant had initially been charged on 23 January 2002 and 26 February 2002 respectively, the plea of guilty was first made on 5 May 2004. Furthermore, the appellant had previously indicated an intention to plead not guilty. On 14 October 2003, a two-day trial had been fixed. In those circumstances, the discount of 15 per cent applied by the Magistrate was not unreasonable.
The Magistrate determined to impose one sentence pursuant to s 18A of the Criminal Law (Sentencing) Act 1988. He sentenced the appellant therefore to a period of imprisonment of 20 months and fixed a non-parole period of four months. The Magistrate directed that the head sentence and the non-parole period be deemed to have commenced on 4 May 2004.
The Magistrate declined to suspend that term of imprisonment.
Extension of Time
The appeal to this Court was not filed until 8 June 2004, some 14 days outside the prescribed time limit. The explanation is inadvertence by the appellant’s former solicitor. The respondent does not oppose an extension of time being granted. In those circumstances I extend the time for the filing of the appeal to 8 June 2004.
Evidence on Appeal
I received, on this appeal, an affidavit from the Police Prosecutor (Mr Simionato) and from the appellant’s former solicitor.
The Nature of the Appeal
Mr Stretton, who appeared for the appellant, referred to s 42 of the Magistrates Court Act 1991, to SCR 97.17 (which provides that appeals of this kind are by way of rehearing), to the powers of the court on appeal bestowed by SCR 97.18, to Police v Cadd (1977) 69 SASR 150 at 189, and to the well-known passage from the judgment of Mason J in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 620 that on an appeal by way of rehearing “the appellate court may give such judgment as ought to be given if the case at that time caem before the court at first instance.”
Mr Stretton then submitted that:
“…it is plain that the appeal is a rehearing and the appeal court is not bound in any way by the decision or exercise of discretion that the Magistrate embarked upon. The court may consider the facts itself and if it considers a different sentence should have been imposed or it considers that it was appropriate to suspend the sentence concerned it may do so.”
I do not accept that submission.
The approach of this Court on an appeal against a sentence imposed by a Magistrate is well established. The imposition of a sentence involves an exercise of judicial discretion. This Court interferes with the exercise of that discretion only when it is satisfied that the sentencing Magistrate has acted upon some wrong principle, or it if has allowed irrelevant considerations to influence it, or it has failed to have regard to a relevant consideration or alternatively, even though no precise error can be identified, the sentence is so obviously unreasonable or unjust that it can be said that there must have been a failure to exercise the discretion properly: House v The King (1936) 55 CLR 499 at 505; Dinsdale v The Queen (2000) 202 CLR 321 at 324 – 325 [3] – [4]; Naera v Police (1995) 184 LSJS 328 at 329; Taylor v Hayes (1990) 53 SASR 252 at 291; Ware v Betts (1987) 134 LSJS 212 at 216; Wessling v Police (2004) 88 SASR 47 at 60.
Contrary to the appellant’s submission, this Court does not, on an appeal against sentence, consider the matter de novo, substituting its view as to the appropriate penalty whenever that differs from that of the sentencing Magistrate. This Court interferes only when it is satisfied that the sentencing Magistrate has made some error. Different considerations apply, of course, to appeals against conviction and findings of guilt by a Magistrate.
As part of the submissions on this aspect of the appeal, the appellant argued that the Court’s function on appeals under s 42 of the Magistrates Court Act 1991 is different from that which previously applied under the Justices Act 1921. In particular, it was argued that because of the differences in the respective regimes for appeals under those Acts, the approach taken in cases involving appeals under the Justices Act[1] should no longer be followed. I reject that submission. I agree with the conclusion of Mullighan J in Naera v SA Police (1995) 184 LSJS 326 at 329 that there is not, for present purposes, any material difference between the provisions of the Justices Act and those of the Magistrates Court Act.
[1] eg Ware v Betts (1987) 134 LSJS 212; Williams v McDonald (1984) 113 LSJS 210 at 213; Taylor v Hayes (1990) 53 SASR 252 at 291.
Ground of Appeal
On this appeal, the appellant complains only of the refusal of the Magistrate to suspend the sentence of imprisonment.
Section 38(1) of the Criminal Law (Sentencing) Act 1988 provides:
“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.”
Thus, a sentence may be suspended where the court considers that there is “good reason” for doing so.
The Magistrate’s Reasons
As to the issue of suspension, the Magistrate said:
“The critical sentencing issue is whether good reason exists to suspend the sentence. All relevant consideration must be accorded weight. They include the seriousness of the offending and your personal circumstances, both at the time of each episode of offending and now. It is also important to consider the impact of an immediate custodial sentence. You have never been sentenced to imprisonment before. I am mindful of your psychological state as described by Dr White and the impact of imprisonment upon you. Your imprisonment would obviously create difficulties in relation to your ongoing court proceedings in the Federal Court, the District Court and the Family Court. Imprisonment would result in your separation from your children for a period of time. I take into account the effect of that separation on you and on them and, particularly, in relation to your youngest sons. On balance, all relevant circumstances must be accorded weight but, in some circumstances, the objective seriousness of the offending makes suspension difficult to justify. In my view, this is such a case.”
At the time of sentencing, the appellant was aged 43. She had four children, a son aged 22, a daughter aged 19 and two sons aged 8 and 7, from three different relationships. In the second and third of those relationships, the appellant had been subjected to domestic violence. The third relationship with the father of the two younger children ended in 1998. It apparently ended in circumstances of some acrimony. The Federal Court proceedings to which the Magistrate referred are proceedings relating to the former partner’s bankruptcy. The District Court proceedings to which the Magistrate referred are proceedings relating to property settlement. The Family Court proceedings are proceedings relating to the residence of the two youngest children and the custody and access arrangements.
Alleged Error of Principle
In the submissions to the Magistrate, counsel for the appellant submitted that the appellant had used the monies fraudulently converted for three purposes: one, to pay fees to the lawyers representing her in the Family Court, two, to buy personal items for herself; and three, to pay general living expenses, including expenses associated with child care, furniture storage and removal costs. The Police prosecutor questioned that explanation. In particular, he drew the Magistrate’s attention to a passage in the Police Apprehension Report in which it was said:
“Purchases and automatic teller machine withdrawals during this time indicate large amounts of money being spent on items from retail department stores within Adelaide.”
The prosecutor invited the Magistrate to draw the inference that the appellant had used large amounts of the monies fraudulently converted for that purpose. The Magistrate held that that inference was open. He invited the appellant to give evidence on the topic. The appellant declined to do so. The Magistrate said that he drew the inference which he had previously indicated was open.
Mr Stretton submitted that the Magistrate had thereby erred in principle. He submitted that a circumstance of aggravation not admitted by a defendant has to be established by the prosecution by evidence and beyond all reasonable doubt. He relied on three authorities in support of this proposition: viz, Weaver v Samuels [1971] SASR 116; Anderson v The Queen (1993) 177 CLR 520; and R v Morrison [1999] 1 Qd R 397. The principle relied upon by Mr Stretton may be accepted but I do not think it has any application in the circumstances of this appeal.
Before explaining that conclusion in more detail it is appropriate to say something about the status of the material before the Magistrate indicating the use to which the money was put. The Police prosecutor had “tendered”(without objection) a copy of the two Police Apprehension Reports relating to the two series of offences. The second Report includes the statement as to the use to which the monies were put which I have quoted above.
The precise status of the “tender” of the Police Apprehension Reports is a little unclear. Mr Stretton submitted that the Reports, being tendered during the course of the prosecutor’s submission, did not have a status any greater than the submissions themselves. The tendering of the reports was merely a convenient way of putting before the Magistrate what would otherwise have been communicated orally.
The Magistrate’s Court file does not show that the Reports were received as evidence. Ms Lam, who appeared for the Crown, accepted that the Reports had been tendered as part of the submissions of the Prosecutor, and not as evidence. I will proceed on that basis.
In Anderson v The Queen (1993) 177 CLR 520 at 536, the majority said:
“If, on a sentencing hearing after a plea of guilty, the Crown wishes to rely on some alleged, but disputed, factual circumstance as aggravating the offence, the ordinary rule is that the onus lies upon the Crown to establish the existence of that circumstance … It is common ground, and rightly so, that the standard of proof which rests upon the Crown in such a case in South Australia is the ordinary criminal standard, namely beyond reasonable doubt … If the Crown fails to establish the disputed circumstance of aggravation to that standard of proof, the offender must be sentenced on the basis that the circumstance of aggravation has not been shown to exist…”
See also Weaver v Samuels [1971] SASR 116 at 119.
The issue in this case is different.
The submission of the appellant as to the use to which the monies were put was a submission in mitigation. The effect of the submission was that the appellant should be treated more leniently than would otherwise be the case because she had not spent the monies on luxuries, or in self-indulgence, but for the most part on “necessities” and for the benefit of her family rather than herself. It was this circumstance of mitigation which was questioned by the Police prosecutor. He did not, as I understand the position, submit that the use to which the monies were put constituted a circumstance of aggravation.
Mr Stretton accepted that the Magistrate was entitled not to accept a mitigating factor put by counsel for the defendant, without hearing evidence from her. A sentencing Magistrate who is not satisfied of some matter urged in mitigation on behalf of an offender is not required nevertheless to sentence the offender on a basis which accepts the accuracy of that submission unless the prosecution proves the contrary beyond reasonable doubt: R v Olbrich (1999) 199 CLR 270 at 280 [23]; R v Lobban (2001) 80 SASR 550 at 556 – 557.
In the present case, it was the appellant, and not the prosecution, who wished to rely on the fact disputed by the prosecution. It was the appellant therefore who had the onus of establishing those disputed facts: R v Olbrich at 281. The Magistrate, quite fairly, put the appellant on notice that an inference contrary to that put by her counsel was open and gave her the opportunity to give sworn evidence in support of her claim.
Mr Stretton submitted that the Magistrate had nevertheless erred in concluding positively that the proceeds from the offences of fraudulent conversion had been expended on items from department stores. I do not accept that submission. In my view, the real import of the Magistrate’s reasons on this topic is his rejection of the matter put in mitigation by the appellant. His statement that he drew the inference suggested by the prosecutor was by way of explanation for that rejection. Even if I am wrong about that, I would not conclude it was an error by the Magistrate which would require me to exercise afresh the sentencing discretion. The Magistrate was entitled to reject the appellant’s plea. He has not regarded the use to which the monies were put as a circumstance of aggravation. The Magistrate does not, in his detailed and reserved remarks on penalty, mention the matter again. If there was error, I am not persuaded that it has resulted in an erroneous decision in relation to suspension.
I do not consider therefore that this ground of complaint about the Magistrate’s decision is made out.
Decision
The appellant tendered before the Magistrate a psychological report from Dr J White. That report provided a good insight into the appellant’s background, health, difficult family circumstances and personality profile. Dr White expressed the opinion that the appellant had been under considerable “external stress” at the time of each period of offending and that her actions may have represented a psychological “cry for help”. In his sentencing remarks, the Magistrate quoted extensively from Dr White’s report. The Magistrate’s sentencing remarks show that he was particularly conscious of the stress to which the appellant had been subjected and to the need for medical intervention.
The Magistrate heard the submissions on sentence on 5 May 2004 and delivered full written reasons for his sentence on 12 May 2004.
I am unable to detect any error of principle or approach by the Magistrate in relation to the possible suspension of the sentence which he had imposed. Furthermore, I do not consider, in the circumstances of this case, that it can be said that even in the absence of an identified error of principle, the Magistrate’s refusal to suspend the sentence in this case was wrong.

The appellant had engaged in two separate courses of conduct involving dishonesty. In the first, by false pretences, she obtained for her own use monies which had been set aside by her former partner and herself for the benefit of their children. In the second, she abused the trust and confidence placed in her by her employers. The abuse of trust and confidence as an employee is all the greater in this case because of the fact that the employment had been offered to her by reason of her friendship with the proprietors of those businesses. Her offending amounted to an abuse of the trust and confidence arising from that friendship as well.
Mr Stretton has emphasized a number of considerations personal to the appellant. These include her previous good record, the stress to which she was subject, the background of domestic violence, the impact of separation from her children, her plea of guilty, her remorse, the fact that this is her first term of imprisonment, her previous voluntary community work, and the salutary effect on her of the period in custody since 4 May 2004. These matters were also pressed on the Magistrate. With the exception of the last, they no doubt influenced the fixing of the short non-parole period of four months.
The significance of the appellant’s previous good record is diminished by the fact that there were two separate periods of offending, each of which occurred over an extended period.
Account must also be taken, as it was by the Magistrate, of the seriousness of the appellant’s offending. It occurred over two separate periods and involved a degree of repetition and persistence. With offences of this kind, considerations of both general and personal deterrence are important.
The appellant argued that the long delay between the commission of the first series of offences in 1999 and their prosecution in 2003 was a factor which operated in favour of suspension. I agree that delay between detection of an offence and the prosecution can be relevant in some cases, especially where the conduct of an accused in the interim shows that he or she has rehabilitated himself or herself, or where the late prosecution is oppressive of the accused. These circumstances do not apply in this case.
Mr Stretton also argued that the absence of prosecution of the appellant in 1999 had worked unfairness against her in another way. She had thereby been deprived of the corrective effect of a Court order, and, or in the alternative, of the assistance with rehabilitation which sentencing options at that time may have provided. With that effect, and that assistance, it was argued that the second series of offending may not have occurred. The Magistrate was entitled to attach little weight to this factor. It involves a considerable degree of speculation. Further, any detriment which the appellant may have suffered has to be balanced against the considerable benefit to the appellant of not having been prosecuted in 1999. But for her further offending, it may well have been the case that the appellant would never have been prosecuted for her offending in 1999.
Having regard to the objective seriousness of the appellant’s offending, I do not consider that it can be said that the Magistrate erred in refusing to suspend the sentence of imprisonment which he had imposed.
I dismiss the appeal.