YOUNG v POLICE No. SCGRG-98-191 Judgment No. S6587

[1998] SASC 6587

YOUNG  v  POLICE

Magistrates’ Appeal

Bleby J

This is an appeal against sentence. The appellant pleaded guilty in the Magistrates Court sitting at Port Adelaide to an offence contrary to s38 of the Summary Offences Act 1953. Particulars of the offence alleged against him were that on 24 July 1997 at Flinders Park by fraud other than false pretences he obtained from Emacord Autos a benefit, namely the loan of a Volvo sedan Registration No UMU‑758. The maximum penalty for an offence contrary to s38 is imprisonment for two years or a fine of $8,000.

The appellant was sentenced on 24 November 1997 to imprisonment for 12 months with a non-parole period of nine months backdated to commence on the date on which he had been taken into custody, namely 1 August 1997.  The sole ground of appeal alleges that the sentence was in all the circumstances manifestly excessive. 

On 24 July 1997 the appellant went to the premises of Emacord Autos at Grange Road, Flinders Park and by telling a series of lies regarding his occupation and other matters, including the fictitious purchase of an expensive North Adelaide house, he succeeded in persuading the victim firstly to sell him a Porsche motor car and pending the carrying out of certain repairs to that vehicle to lend him a Volvo motor car of considerable value.  The appellant then proceeded to use that vehicle pending settlement on the Porsche transaction.  By making other untrue excuses he managed to avoid paying any deposit on the Porsche and for days he managed to avoid or make broken promises about paying the deposit but more particularly, in this case, about returning the Volvo.  At one point he provided the keys of the vehicle to a local hotel as security for an account for some drinks which he had incurred at that hotel, even though of course he knew at that stage that the car company was seeking its immediate return.  In fact it was that action which ultimately led to the vehicle being recovered and the defendant being charged. 

The victim had been deprived of the vehicle and the appellant had had the unrestricted and free use of it for some seven days.  It would appear that the offence was premeditated and deliberate. 

The learned magistrate had before her two reports of Mr Richard Balfour, a senior clinical psychologist at the Eastern Community Mental Health Service.  One was a report dated 30 August 1996 which had been prepared in relation to an earlier offence, and it was apparent from that report, and I quote from Mr Balfour at p3 of the report:

“I could find no evidence to suggest that Mr Young suffers from a psychotic illness (a break with reality), a major mood disorder, an intellectual disability, significant problems with alcohol and poly substance abuse or a serious personality disorder.  Mr Young does not suffer from any diagnosable psychiatric illness or psychological disorder.  The psychological profile is that of a man with a level of intelligence in the superior range who is highly educated.  His outlook on life has been somewhat institutionalised by the culture of the RAAF.”

In relation to the offence with which he was concerned at that stage Mr Balfour formed the view that the appellant was covering for some other person or offering to assist someone else who was experiencing financial difficulties.  At that stage he expressed the view that there would be a low probability of Mr Young offending in a similar manner again.  That prediction proved untrue. 

When Mr Balfour saw him again he wrote another report dated 19 November 1997 for the purpose of these proceedings, and I think it is fair to say he was somewhat disillusioned by the lack of frankness that the appellant has displayed to him in the past.  His conclusion following his discussion with the appellant on that occasion included the following:

“Based on the assumption that what Mr Young has told me about his background is true,”

and I interpose there to say that he had not expressed that qualification in the previous report:

“then there is no reason why this man should need to consider offending because he does not come from a background where he has been socially and economically disadvantaged.  If he decides to offend then it is out of choice rather than need.  I was unable to shed any light on Mr Young's motives for the current offending behaviour.  Mr Young does not suffer from any specific psychological or psychiatric disorder that requires ongoing treatment.  Nevertheless, he may benefit from being treated by a clinical psychologist to further explore the dynamics of his offending behaviour and to assist him develop insight.  I believe that Mr Young's prognosis not to reoffend remains uncertain and in doubt.”

The appellant was sentenced on the basis that he had acted deliberately in committing a serious offence of dishonesty involving property of some not inconsiderable value and that this was not his first such offence.  The learned magistrate rejected a submission that the four months that he had by then already served in custody constituted an appropriate punishment and considered that, given all the circumstances, a more substantial term of imprisonment was called for.  The learned magistrate considered the reports of Mr Balfour to which I have referred.  However she did not consider that the prognosis contained in that report was such as to militate in favour of leniency.  That view was justified.  She referred to the need to mould a sentence which was of sufficient deterrence to the offender and to others like him, and for the need to protect the community.  She did not overlook the question of rehabilitation, but all those factors, she said, pointed to an immediate sentence of imprisonment. 

The appellant is aged 32 and is married with one child.  He has completed degrees in both Science and Electronic Engineering.  It appears that he has had a reasonably good work history having worked most of his life in the RAAF.  Prior to being taken into custody he was self-employed working in a small but apparently successful electronic engineering consulting business which he had established.  He stated that the business was performing well and was profitable. 

The appellant however is not a man of unblemished character.  His antecedent report reveals that he has many prior convictions for petty dishonesty preceding what became some more notable convictions for false pretences and fraud other than false pretences, all of which seem to have been committed in the years 1995 and 1996.  On 3 August 1995 he was convicted of six counts of false pretences for which he was required to perform 160 hours community service.  On the same day he received a 10 month suspended sentence for a further two counts of false pretences, the condition being that he enter into a bond to be of good behaviour.  That bond was estreated on 24 April 1996 upon his conviction for a further three similar such offences.  On that occasion he received a head sentence of 14 months imprisonment with a non-parole period of 12 months.  The present offence was committed some five months after his release on parole but more than three months after the parole period had expired. 

I was told that the sentence imposed by the magistrate was above what the prosecutor had in fact suggested.  That indeed was one of the appellant’s grounds of complaint about the excessiveness of the sentence.  In my opinion it is inappropriate for a prosecutor to fix or to suggest or to agree with a particular sentence in a particular case.  That must always remain in the discretion of the sentencing court.  That is not to say, of course, that a prosecutor should not assist the court wherever possible by indicating an appropriate range of what might be said to be similar sentences for offences of a similar nature.  The learned magistrate was certainly not bound by whatever was put to her by the prosecutor in that regard on this occasion. 

The appellant’s antecedents did not have much to commend him.  Rather they indicated that for yet another offence involving fraud or similar conduct the penalty demanded a significant element directed towards personal deterrence especially as the offence seems to have been quite deliberately pursued in a rather calculated and deceitful manner. 

It was an offence which, at the end of the day, did not involve significant property loss to the victim, but left unchecked and without substantial deterrence, offences of this nature tend only to become worse as the confidence and experience of the offender increases.  It is plain that the appellant’s confidence has not been deterred either by the community service orders or by a suspended sentence, or even a 14 month custodial sentence, admittedly each of those being for multiple offences. 

It was said that the magistrate appears to have ignored his plea of “guilty”.  It was a very late plea, it was a plea which was entered on the day fixed for the trial of his action, and he would not have obtained a large amount of credit for that, in any event. 

Given his history, in my opinion a custodial sentence was called for.  For a single offence twelve months imprisonment with nine months non-parole period was what I would describe as at the higher end of the range, but I do not consider that it was outside the range of the sentencing discretion of the learned magistrate.  The fact that I might have imposed a slightly lower penalty or that some other magistrate might also have imposed a lower penalty, does not mean that the sentencing discretion miscarried. 

In all the circumstances I am unable to say that the penalty is manifestly excessive, such as to justify interference by this court.  The appeal is therefore dismissed. 

The orders of the court will be:

1. Appeal dismissed. 

2. Appellant to pay the costs of the respondent fixed at $150.