Wittwer v Police

Case [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

  1. This is an appeal, pursuant to s 42 of the Magistrates Court Act 1991, against sentence.

  2. 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.

  3. 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…

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AGLC
Wittwer v Police [2004] SASC 226
Case
[2004] SASC 226
Decision Date

CaseChat Overview and Summary

The appellant in Wittwer v Police appealed against a sentence imposed by a Magistrate, challenging the decision on the grounds that it was excessive and that the Magistrate erred in not suspending the sentence. The appeal was heard in the Supreme Court of South Australia, where the Court was tasked with determining whether the Magistrate's decision to impose a penalty and refuse to suspend the sentence was lawful and justified. The appellant argued that the Magistrate had failed to consider mitigating factors properly, and that the sentence was unreasonable. The Court examined the principles guiding appeals against sentencing decisions, emphasising that the appeal court would only interfere if the Magistrate had acted on a wrong principle, failed to consider relevant factors, or if the sentence was manifestly unjust.

The Court noted that the Magistrate had considered the appellant's background, family circumstances, and psychological stress, as evidenced by a psychological report. The Magistrate had also acknowledged the appellant's plea of guilty, remorse, and previous good record, but had balanced these against the seriousness of the offences, which involved fraud amounting to $37,845. The Court found that the Magistrate had exercised his discretion appropriately, taking into account both aggravating and mitigating factors. The appellant's offending was deemed to be of significant objective seriousness, involving repeated dishonesty over two separate periods. The Court concluded that the sentence was not manifestly unjust, and the Magistrate's refusal to suspend the sentence was justified in the circumstances. The appeal was dismissed, affirming the Magistrate's sentencing decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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