Haddon v Sarhan and Uren [2012] ACTSC 73

1. Bernadette Jane Haddon has appealed sentences imposed in the Magistrates Court in October last year for three offences, arising out of two occasions on which she stole credit cards accidentally left by customers in a shop where she worked part-time, and then used the credit cards to obtain goods and services from various businesses.

2. There were nine offences dealt with in the Magistrates Court, being two offences of minor theft, and seven offences of obtaining property by deception.

3. The first theft took place on 27 December 2010, and the stolen credit card was used on four occasions in early January 2011. For that theft, and three of the four deceptive uses of the stolen card involving property valued from $22 up to $171, the sentencing Magistrate imposed fines of $100 each, and for the use of the card to obtain property valued at nearly $450, his Honour ordered Ms Haddon to perform 80 hours of community service.

4. The second theft and the deceptive uses of the second stolen card were committed in late January 2011. For that theft, and for obtaining property worth $9.80, his Honour again imposed fines of $100 each. For obtaining property worth $62, his Honour ordered 100 hours community service cumulative on the 80 hours previously imposed, and for obtaining property worth $80.43, his Honour imposed a two month prison sentence fully suspended.

5. The appeal related only to the sentences of imprisonment and community service orders. The original appeal grounds were amended without opposition from counsel for the respondent, who conceded at the hearing that the sentencing Magistrate had failed to give any reasons for his sentences. Among other things, the failure to give reasons meant that his Honour did not advert to Ms Haddon's pleas of guilty; did not state that he was satisfied that no sentence other than imprisonment was appropriate, a conclusion required by s 10(2) of the Crimes (Sentencing) Act 2005 (ACT) before such a sentence is imposed; and did not give any reasons for that conclusion as required by s 10(4) of that Act. Section 10(5) of the Act ensures that a failure to give reasons does not invalidate a sentence of imprisonment, but this does not in my view prevent such a failure being an appellable error.

6. His Honour's failure to give reasons more generally is also, in my view, an appellable error, as is the failure to advert to the pleas of guilty.

7. The findings of error on the part of the sentencing Magistrate permit an appeal court to re-sentence an appellant if, in general terms, the appeal court is satisfied that another sentence is appropriate, and that imposing that other sentence would not amount to merely "tinkering" with the original sentence. The question for me, then, is whether for any or all of the three sentences under appeal, another sentence is appropriate.

8. I note first that the sentences of community service are not challenged as such, given that in the Magistrates Court defence counsel had agreed with the prosecutor that some community service would be an appropriate part of Ms Haddon's sentences. Whether the amount of community service imposed (a total of 180 hours or about 23 days), was inappropriately high was raised, but not particularly strongly argued, by counsel for the appellant.

9. The sentence of two months imprisonment is the most significant sentence. I have already noted that his Honour's satisfaction that prison was the only appropriate sentence was not expressed, and nor was it explained. The only comment that his Honour made that could be identified as part of his reasons was made during submissions, as follows:

Well, not only is it a theft from members of the community, it's a betrayal of trust of her employer, where the credit cards were left inadvertently by the two ladies who were customers of [the business], and she used her position to thieve them. She then used those cards to defraud members of the retail community. There's not much that can be said in her favour.

10. Apart from this, his Honour engaged in some questioning of the prosecutor about how he should structure the multiple sentences to take account of the proposed community service order, and then, with the somewhat obscure exclamation "Glory be to Murgatroyd", launched into imposing the sentences as I have already described. The sum total of his comments in relation to the sentence of imprisonment was:

In relation to 7143, you're sentenced to two months imprisonment. That's to be fully suspended on giving security in the sum of $100 for compliance with the order to be of good behaviour for a period of 18 months.

11. I cannot see that there is any justification for the imposition of a sentence of imprisonment in this situation. In reaching this conclusion, I note the following matters.

12. First, there is nothing in Ms Haddon's subjective circumstances that indicated that a prison sentence was required or even justified in this case.

(a) Ms Haddon was 44 at the time of the offences, a single parent caring for two of her three children and engaged in a custody battle over the third child; she had also been battling bipolar disorder for some time. Ms Haddon, who had been struggling to make ends meet on social security benefits, child support, and the income from part-time work, said that she had used the stolen credit cards to fund basic living expenses, such as groceries and fuel.

(b) Before these offences were committed, Ms Haddon had no criminal record; that is, this group of nine offences were her first offences.

(c) Ms Haddon had made what seemed to be accepted as early pleas of guilty, although the prosecutor had noted that their utility was diminished by the existence of a strong Crown case.

13. As to the objective circumstances, while I agree with his Honour's view that all these offences represented a real breach of the trust placed in Ms Haddon by both her employer and her customers, I cannot see anything that distinguished the offence for which imprisonment was imposed from any of the other offences that is sufficient to justify the jump from $100 fines to two months imprisonment. I note in this context that a prison sentence may only be imposed if it would be appropriate for the offender to serve all that sentence in full-time custody; suspending the sentence may be a lenient way of dealing with it, but it does not justify imposing a sentence that would not otherwise be appropriate to be served in full-time custody (R v O'Keefe [1969] 2 QB 29 at 32; see also Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [78] and [79], Kirby J).

14. Nor do I accept the argument of counsel for the respondent that the totality principle entitled his Honour to impose a disproportionately higher penalty for one offence if, considering all the offences together, he concluded that the total sentence was not high enough to represent the total criminality. No authority was advanced for this proposition, and without exploring all the possible reasons why it should not be accepted, I note only that in such a situation the proper approach would seem to be for a sentencing officer to make any necessary adjustments to the sentences that seemed to be too low, not simply to load up one sentence irrespective of what was appropriate for that particular offence.

15. Furthermore, while repeated offending certainly over time may deprive an offender of a claim to leniency, I am not convinced that where a series of similar offences are all committed as part of the same course of conduct and before the offender has been caught and dealt with for the first time, there is necessarily a basis for treating the later offences in the series as more serious because of the preceding offences.

16. For all these reasons, it seems to me that the sentence of imprisonment must be overturned, and that this clearly means that another sentence is appropriate so as to require a re-sentencing.

17. As to the community service sentences, given the agreement in the Magistrates Court, it seems to me not unreasonable to impose some community service on the most serious offence in each series, but I see no reason to impose two community service orders in relation to the second series of offences, and no reason why the second community service order should require more hours than the first. I also consider that some recognition of the pleas of guilty should be identified in relation to the community service orders.

18. Accordingly, I propose to uphold the appellant's appeal, and to re-sentence her.

19. Ms Haddon, would you please stand at this stage.

20. The convictions recorded by his Honour in the Magistrates Court stand.

21. On charge 7141, instead of 100 hours of community service, I impose a fine of $100.

22. On charge number 4569, again, there is a conviction, and I order you to sign an undertaking to comply with your good behaviour obligations for a period of 12 months, but that will be 12 months from now, so that extends beyond the original one, with security in the amount of $100, and it is a condition of the good behaviour order that you perform 60 hours community service, which I've reduced from 80 hours because of your plea of guilty. Now that 60 hours, in effect, will be backdated to take account of the community service you've already served, so that one is finished.

23. On charge 7143, again, there's a conviction; and I order you to sign a good behaviour undertaking, which will run for 12 months, with security in the amount of $100, and that good behaviour order is subject to the condition that you perform another 60 hours community service, reduced from 80, for your plea of guilty. That community service order, in effect, is backdated to take account of 14 hours community service that's already been performed, so there's 46 hours outstanding on that, and otherwise only the core conditions.

24. So the important thing with all of that, Ms Haddon, is obviously you have to be of good behaviour for the next 12 months, and not offend again, and what you've got left then, coming out of all of that, is a further fine of $100, and 46 hours more community service. I think that's all I need to say to you at that stage.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Solicitor for the appellant: Legal Aid ACT

Solicitor for the respondent: ACT Director of Public Prosecutions