R v DE SOUZA

The applicant's desire to spend the balance of his sentence on home detention. 15 The applicant was born into a Christian family in Pakistan. The family was apparently one of some substance. Amongst other things, the family had the benefit of servants in the household. When he was of tender age, it appears that the applicant was sexually interfered with by a member of the household staff. As children do, he kept the matter to himself for many years and it was not until he dealt with the matter with Dr Canaris, whom he first began to see after his arrest on these charges, that he was able to expose the existence of what had happened, to talk about it and to begin to come to terms with it. 16 The applicant picked up in his written submissions an observation made by the learned sentencing judge about the fact that within about three years of being dealt with for the 1987 offences, the applicant began to re-offend. His Honour said: Unfortunately you did not heed what happened then and only three years later began this series of more substantial frauds. 17 The submission is that his Honour fell into error in making that observation because he failed to realise the difficulty that the applicant had had and to which I have referred - his inability to come to terms with what happened to him as a child until he had had many consultations with Dr Canaris. 18 His Honour found, in fact, that the abuse of the applicant as a child had nothing to do with the dishonest conduct, either in 1987 or upon the occasions for which his Honour was sentencing the applicant. In my opinion, that was a conclusion of fact that was open to his Honour on the evidence, and it is one that may not be challenged in this Court. 19 The same thing may be said of the submissions made by the applicant that it took a realisation by him of his own hypocrisy before he could confess his offences, and that exceptional circumstances existed why he failed to learn from the 1987 experience. 20 The next matter is that the motivation for the offence was not greed. That was not a finding made by his Honour and in my view it is not a matter that is open to the applicant to put to this Court. 21 Then it is said that his Honour failed to accept and act upon the views and recommendations made by Dr Canaris. Dr Canaris is a consultant psychiatrist, as I have observed. The applicant sought his service not so much for treatment but upon the recommendation of his solicitor, for the preparation of a report to be furnished to the Court. In due course the reports of Dr Canaris dated 21 January and 18 March 1998 were tendered and his Honour dealt with the detail of them. His Honour formed a poor view of Dr Canaris. He came to the view that Dr Canaris had made himself an advocate and that the Court ought not to rely upon his opinions and recommendations. 22 I need not deal with the detail of the reports of Dr Canaris. It will be sufficient if I quote from the last page of the first mentioned report. Dr Canaris knew the facts of the case which were likely to be proved against the applicant. He must have known that the applicant faced the likely imposition of a long period of time in custody. He knew that the applicant wished to contend before the sentencing Court that it should sentence him to a period of home detention. On the last page of his report of 21 January 1998 Dr Canaris said this - You have drawn my attention to the option of home detention. It is my considered view that home detention is from the psychological perspective by far the most desirable option. I understand that the conditions applied to home detention are stringent and no sinecure. The process is quite intrusive with close monitoring of the offender's behaviours. Provision could be made for both himself and his wife to attend my rooms in continuing therapy. There is a great deal of work to be done with Mr De Souza as an individual and together with his wife in order to help him break his pattern of doubling. The fact that he would then be under sentence with very strict controls would in fact be of great assistance in therapy. I might add that an integral part of Mr De Souza's therapy is that he be seen together with his wife. While individual psychiatric treatment would be available to him in prison, therapy for the De Souzas as a couple obviously is not. Consequently, the therapeutic result is likely to be considerably less effective. At the end of the day, the aim, of course, is not only to confront your client with his doubling behaviour but also to help him develop more mature and constructive ways of dealing with the vicissitudes of his life. This would be much more achievable because it would be much more likely that Karin could then be recruited as a person who would also confront Terry yet also support him and build up his self esteem. It will in all likelihood be much more difficult to resume this process which has only just begun if it is interrupted by a spell in prison. Mr De Souza is likely to emerge from prison so demoralised that he will need so much propping up as to make any kind of confrontation or remoulding of behaviour patterns virtually unthinkable for a long time. It will also be much harder to recruit Karin into the therapeutic process. Imprisonment is a gruelling experience not only for the prisoner but also for his spouse and family. Over the course of his imprisonment, Karin's psychological resources will be severely taxed as she endeavours to keep her large and young family functioning as a single parent. I am greatly concerned that she may become so embittered and exhausted by the process as to find it difficult to make any more than a cursory attempt to help her husband. In view of the above considerations, I respectfully urge that the court seriously consider home detention. It is my professional opinion that your client's rehabilitation is far more likely to be attainable by the exercise of this option. 23 It is quite apparent from that material alone that his Honour was entitled to take the view that Dr Canaris was playing the role of an advocate rather than attempting in any way to put a balanced professional view to the sentencing Court, and in my opinion his Honour was entitled to decline to rely upon his evidence. I do not think that in doing so his Honour fell into error. 24 The next two matters put forward to this Court were that his Honour gave inadequate consideration to the effect upon his family of the custodial sentence and inadequate consideration to the financial restitution made by the applicant and his family. His Honour dealt in detail with the restitution, the facts of which I have already summarised. The imprisonment of the applicant and the loss of the family home and the translation of the applicant's family from being comfortably off to depending upon public funds are all matters which must be acknowledged to have had, and to be likely to continue to have, a very serious effect upon members of the applicant's family. 25 It is often said that the people who are hurt by criminal activities are not so much the criminals themselves but members of their families. However, it is only in a very rare case that the deleterious effects of sentencing and of the consequences of crime on the families of offenders and the hardship that they suffer may be taken into account in fashioning an appropriate sentence: Regina v Edwards (1996) 90 A Crim R 510. I do not say in any insensitive way that the Court appreciates the position in which the applicant's family now finds itself, but even so it does not seem to me that the consequences for them constitute a matter which his Honour would have been entitled to take account of in deciding on an appropriate sentence. 26 As to the restitution, the applicant himself, of course, has lost his property but it has to be acknowledged that his restitution has not been complete and a substantial loss has resulted. 27 The next matter was that his Honour gave inadequate consideration to the applicant's confession of his offences, his subsequent assistance with a police investigation and his plea of guilty. His Honour undoubtedly did give consideration to those matters and dealt with them in detail in a long and careful judgment. An important feature of the position the applicant found himself in was that once his activities became known, there was going to be nothing he could say in defence of himself. It was, of course, in his own interests to make the full confession that he did, but the confession and the pleas of guilty, whilst they were entitled to be given weight because they saved the State the time and money of what would probably have been a long and expensive trial, were not of themselves much more than an acknowledgment of the inevitable. 28 Then it was submitted that his Honour gave inadequate consideration to the appellant's prospects of rehabilitation. In fact, his Honour did consider the appellant's prospects for rehabilitation and concluded that there were prospects. To submit that inadequate consideration was given is really to submit that the sentences were so long as to lead to the conclusion that that is what must have happened. 29 I shall in a moment deal with the length of the sentences themselves, and I can do so as I deal with the final submission, namely the applicant's desire to spend the balance of his sentence on home detention. His Honour was correct to describe the offences as grave breaches of trust and extremely serious. Twenty-three individuals were defrauded of about one and a half million dollars over a period of five years. By any measure, that involves criminality of the highest kind. In my opinion, the applicant's criminality was such that his Honour would have fallen into error if he had not imposed sentences which involved the applicant spending a considerable time in full-time custody. 30 Other aspects of his criminality were the care with which he had to prepare and carry out his scheme, the fact that several of the persons defrauded were in a particularly vulnerable position and relied upon the applicant for advice and assistance, all of which may be summarised as saying that the applicant committed gross breaches of trust. 31 His Honour paid full regard to the subjective features of the case, to the prospects of rehabilitation in particular, and, relying on a report from an officer of the Probation and Parole Service, considered that the need for counselling and psychiatric assistance if and when required constituted a reason for imposing sentences which produced an additional term during which the applicant would be eligible for release on parole longer than would otherwise apply. 32 In my opinion, in all the circumstances of the case, the construction of the sentence to produce that result was well within the sentencing discretion of the trial judge. I would grant leave to the applicant to appeal but would dismiss the appeal. 33 STUDDERT J: I agree. The orders of the Court therefore will be those proposed by Barr J. **********