Wood v POLICE - [2015] SASC 109

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
WOOD v POLICE
[2015] SASC 109
Judgment of The Honourable Justice Sulan
30 July 2015
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT - SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - EFFECT OF SENTENCE OF IMPRISONMENT ON PRISONER
The appellant pleaded guilty to numerous counts of theft, driving offences and breach of bond. The offending occurred between June 2013 and March 2015. There were two broad groups of offending: between June and November 2013, for which three months' imprisonment was suspended, and between October 2014 and March 2015. The offending occurred after the appellant had turned 50 years of age, and she had no convictions prior to this sequence of offending. The appellant had a difficult childhood, and suffered from breakdowns of personal relationships and ill health. Further evidence of the effect of imprisonment on the appellant admitted without objection.
Held (allowing the appeal):
1 The suspended sentence of three months be brought into effect, with the period of imprisonment reduced to one month and 22 days' imprisonment to reflect time served. For the October offences, the sentence imposed by the Magistrate is affirmed and is to be served concurrently with the sentence of one month and 22 days imposed for the breach of the suspended sentence bond.
2 For the December 2014 to March 2015 offending, one sentence of six months' imprisonment is imposed, suspended upon the appellant entering a bond to be of good behaviour for three years. A condition of that bond is that the appellant be under the supervision of a community corrections officer for 12 months.
Criminal Law (Sentencing) Act 1988 (SA) s 18A, s 58(2), referred to.

WOOD v POLICE
[2015] SASC 109
Magistrates Appeal: Criminal

SULAN J: The appellant and defendant, Debbie Wood, pleaded guilty in the Magistrates Court to three counts of theft, two counts of deception and one count of attempted deception, committed on 8, 9 and 12 October 2014 (‘the October offences’), one count of driving whilst disqualified, one count of contravening a defect notice and removing that notice, committed on 31 December 2014 (‘the December offences’), two counts of theft committed on 8 January 2015 (‘the January offences’), two counts of breaching bail, committed on 23 and 25 March 2015 (‘the March offences’), and one count of theft, committed on 27 March 2015 (‘the 27 March offence’).
The offences
On 23 December 2014, the defendant was sentenced to three months’ imprisonment for 23 offences which was suspended upon her entering into a bond to be of good behaviour for 12 months. The offences mainly related to the theft of items from retailers. The offences are commonly referred to as shoplifting. The value of the goods in each case was less than $250. The offences were committed between 6 June 2013 and 30 November 2013. She was also disqualified from holding a driver’s licence for one month. Eight days later, she breached that bond by removing a defect notice from a car, driving it in contravention of the notice requirements whilst she was disqualified from driving. She again breached the bond by committing the January offences, which resulted in an application to enforce the breached bond.
The January offences involved the defendant committing further acts of shoplifting.
The March offences involved the defendant breaching her bail conditions by providing a positive urine test. On 25 March 2015, she again breached her bail conditions by not returning home by an agreed time. The March 2015 offence involved a further act of shoplifting.
Personal circumstances
The defendant was born in Melbourne on 17 July 1961. All the offending occurred after she had turned 50 years of age. Prior to that date, she had one court appearance on 13 May 1999 when she appeared in the Moonee Ponds Magistrates Court charged with theft. The matter was dealt with without a conviction being recorded.
The defendant was raised in Melbourne. She had a difficult childhood. She married at the age of 17 and has three adult children, all of whom live in Melbourne. One child suffers from cerebral palsy.
After ten years of marriage, she divorced. She moved to South Australia in about 2001. She had been in a relationship which ceased in about 2012. She and her former partner purchased a home and, since she has been released on bail, she has lived there. The situation of residing with her former partner is unsatisfactory. The defendant is heavily indebted as a result of fines and penalties exceeding $25,000 being imposed upon her. She has worked most of her adult life. In 2011, she was involved in a job-related accident in which she sustained serious injuries. Since that time, she has suffered continuous pain and has been unable to work.
After she was injured, she was prescribed oxycontin for pain relief. She became addicted to the medication. She was unable to obtain prescriptions for the drug, and then commenced to use amphetamines. As a consequence, she was spending considerable money to satisfy her drug addiction. She also has used heroin and ice. On 25 March 2015, she returned a positive drug test for methylamphetamine and amphetamines. The defendant is being treated by Dr Anna Woods, who has prescribed suboxone. The defendant has ceased taking illicit drugs. The defendant blamed her offending upon the breakup of her relationship and that she had lost her way.
The Magistrate’s sentence
The Magistrate ordered a pre-sentence report. Although the defendant informed the writer of the pre-sentence report that substance abuse was not a reason behind her offending, the opinion of the writer is that it is a relevant factor.
In sentencing the defendant, the Magistrate had regard to her pleas of guilty. He had regard to counsel’s submissions and to the pre-sentence report. He concluded that the underlying basis for much of the offending was the defendant’s dependence upon illicit substances. He noted that the defendant had long-standing chronic pain-related issues. He observed that the defendant needed ongoing support to endeavour to address her issues. He considered that the problem in sentencing her was that there had been, in the past, an anticipation that, with a supervised bond and supervised bail, she would be motivated to address her underlying issues. That did not occur. As a consequence, the defendant had breached the suspended sentence bond. The Magistrate noted that the October offences with which he was dealing pre-dated the time at which the December suspended sentence was imposed.
The Magistrate estreated that bond and directed that the three months’ imprisonment come into effect. As to the October offences which were committed prior to the defendant entering into the bond on 23 December 2014, he imposed a sentence of four weeks’ imprisonment, which he ordered to be served concurrently with the sentence of three months’ imprisonment which came into effect as a consequence of the breach of bond. He observed that only eight days after entering into the bond, the December offences occurred. In respect of those offences, he imposed a sentence of two months’ imprisonment, having reduced it from four months’ imprisonment on account of the defendant’s plea of guilty. That sentence was to be served cumulatively upon the three months’ imprisonment.
In respect of the January offences, the Magistrate imposed a term of one month imprisonment, reduced from two months’ imprisonment on account of the defendant’s plea of guilty, that sentence to be served cumulatively upon the five months’ imprisonment to which I have referred earlier.
In respect of the breach of bail (the March offence), the Magistrate imposed a sentence of three weeks’ imprisonment, having given the defendant one week credit for time spent in custody. As to the 27 March offence, which was committed whilst the defendant was subject to a suspended sentence and on home detention bail, the Magistrate imposed a sentence of two months’ imprisonment reduced from four months’ imprisonment on account of the defendant’s plea of guilty, to be served cumulatively on the six months and three weeks’ imprisonment imposed for the other offending.
The total sentence was eight months and three weeks’ imprisonment, the sentence to commence on 28 March 2015.
On 20 May 2015, the defendant was granted bail pending appeal to this court. She had been in custody for one month and 22 days.
The appeal
The defendant seeks an extension of time within which to bring the appeal. The respondent is not prejudiced by the delay, which was one week. The respondent does not oppose the Court granting an extension of time. I therefore grant an extension of time.
The defendant sought leave to rely upon an affidavit sworn by her on 15 July 2015. The affidavit deposes to various health issues, some of which relate to problems the defendant experienced whilst she was in custody.
Counsel for the defendant submitted that the balance of the sentence of just great than seven months, after deducting the time she spent in custody, should not be required to be served, but should be suspended.
The defendant further seeks to rely on an affidavit of Katrina Leigh Hartman, sworn on 15 July 2015. Ms Hartman, who appeared for the defendant in the Magistrate’s Court, deposes to her recollection of submissions she made before the Magistrate. Ms Hartman tendered a letter from a social worker, Ms Margaret Rose, dated 30 March 2015. Ms Rose made the following observations about the defendant:
Having lost her job and then her personal relationship and the loss of her health, as well as experiencing ongoing pain, were all factors that could have contributed to Debbie having such a reaction as choosing to shop lift for the first time, at the age of 51. The cumulative losses/grief in her life at that time made her vulnerable to making very irrational decisions and lose her whole sense of identity. In addition to this, if she was struggling with physical pain and attempting to find appropriate drugs to bring some relief, it is probable that she wasn’t thinking clearly or rationally before committing criminal offences.
From my short time of working with Debbie she is clearly ashamed of her actions, and feels as if despite living a responsible life up until she was 50, raising children, holding down responsible employment etc, that she is now branded as someone who holds no respect for the law and is destined to be incarcerated.
Ms Rose observed that the defendant’s current living situation is deplorable. Ms Rose is attempting to assist the defendant in obtaining suitable accommodation and in improving her life.
Ms Rose provided a supplementary report, dated 17 July 2015, to this Court. The defendant sought to rely upon that report which deals with matters subsequent to the time when the defendant was sentenced and after she was released on bail, pending appeal.
In the report, Ms Rose observes that the defendant’s conduct appeared to be completely out of character, as she had no previous history of offending. Ms Rose is of the opinion that, since the defendant has been released on home detention pending appeal, her thinking has shifted remarkably and she has stopped using illicit drugs and is working with her general practitioner to manage her pain.
Mr Soetratma, who appeared for the Crown, did not object to the Court receiving the affidavits. He did not oppose my having regard to the additional material which had not been before the Magistrate. In light of that material, Mr Soetratma agreed that it was open to me to resentence the defendant. He submitted that, in so doing, I should order that the defendant serve the balance of the sentence of three months which she was required to serve upon the estreatment of the suspended sentence bond. He did not oppose the Court ordering that the sentences for the December, January, March and 27 March offences be suspended. He submitted that any bond be subject to a condition of strict supervision.
I commend Mr Soetratma on the position he has adopted. This is a somewhat exceptional case. The defendant had not been convicted of any offence prior to this spate of offending which commenced in June 2013. At the age of 50, she embarked on a course of shoplifting and other offending which was completely out of character. For the reasons which follow, I propose the following orders:
1That the suspended sentence of three months be brought into effect, but I reduce the three months’ imprisonment to 1 month and 22 days, pursuant to s 58(2) of the Criminal Law (Sentencing) Act 1988 (SA). That sentence is to commence on 28 March 2015, the date upon which the defendant was taken into custody. For the October offences, I affirm the sentence imposed by the Magistrate and order it to be served concurrently with the sentence of one month and 22 days imposed for the breach of the suspended sentence bond.
2That for the December, January, March and 27 March offences, I impose one sentence pursuant to s 18A of the Sentencing Act of six months’ imprisonment, suspended upon the defendant entering into a bond in the sum of $100 to be of good behaviour for three years. A condition of the bond is that she be under the supervision of a community corrections officer for 12 months and obey that officer’s directions as to any psychiatric, psychological or other treatment or counselling that is required.
Ordinarily, for the offences which breached the bond, an immediate custodial sentence would have been appropriate. However, as I have indicted, this is an exceptional case.
The defendant relies upon an affidavit sworn by her on 15 July 2015 which was admitted by consent. Exhibited to the affidavit is a report of a medical practitioner, Dr Arto Kartika, who first saw the defendant on 10 September 2013. His report indicates that the defendant has a deformity in both feet. She was also suffering from Hepatitis C. He referred her for further treatment for both conditions. A report from the Queen Elizabeth Hospital, where she was admitted on 12 November 2013 and released on 29 November 2013, confirmed that the defendant suffered multiple fractures and chronic pain. She was also diagnosed with asthma, depression, anxiety disorder, osteopenia and drug abuse. It is clear from that report that the defendant suffered multiple medical problems which require ongoing management.
The defendant requires a walking frame to assist her to walk. At the time that she was admitted to hospital, the hospital notes indicate that she had a number of tumour markers, mammogram and bone biopsies to look for malignancy. Those tests were normal.
The defendant deposes that, as a consequence of the feet deformities, she has trouble walking and standing. She is unable to wear normal shoes and, therefore, is required to wear slippers which affect her balance. Whilst she was in gaol, she was not permitted to use her walking frame or walking stick. She had difficulty in keeping up with prisoners. She was victimised by younger prisoners. She was unable to work in the kitchen. She states that since her release on bail she has been randomly urine tested for drugs, with negative results. She is consulting a psychologist, Dr Lau, and working with Ms Rose, the social worker.
Ms Rose provided the Court with a supplementary report, dated 22 July 2015. She summarised the issues confronting the defendant who, at the age of about 51, lost her job due to health issues, lost her relationship, developed a drug dependency problem due to pain from her medical issues, and then developed a dependence upon drugs.
In Ms Rose’s experience, the changes in the defendant’s life, combined with her health issues, not uncommonly result in poor decision-making and unwise choices. In Mr Rose’s opinion, the period that the defendant spent in custody acted as a “wake-up call”. The defendant is no longer using illicit drugs and is consulting with her general practitioner to manage her pain. She has also negotiated with the Court to pay the fines. Ms Rose reported that the defendant’s correctional services officer is supportive of the defendant. She has observed a change in attitude and determination by the defendant to turn her life around. Ms Rose indicated that she will continue to work with the defendant.
The further report of Ms Rose was not available to the Magistrate. Further, I am satisfied that the defendant is making major efforts to turn her life around. I am satisfied that she has good prospects of rehabilitation. This is a case in which I consider that a merciful approach is justified. I consider that returning the defendant to custody would be counterproductive.
In the circumstances, I consider that good reason exists to reduce the period of imprisonment required to be served by the defendant for breach of her suspended sentence bond. I reduce that period to the time which the defendant has spent in custody. As to the October offences, I confirm the sentence imposed by the Magistrate and direct that it be served concurrently with the sentence of one month and 22 days already served.
As to the offending for which the defendant is to be sentenced, I impose the sentence that was imposed by the Magistrate, but I have determined to suspend it and require the defendant to enter into a bond to be of good behaviour for three years. A condition of the bond is that the defendant be under the supervision of a community corrections officer for 12 months, and that she obey that officer as to any psychiatric, psychological or other treatment or counselling that the community corrections officer requires.