HRNG ADELAIDE, 6 July 1993 #DATE 6:7:1993 Counsel for appellant: Mr P Bennett Solicitors for appellant: Legal Services Commission Counsel for respondent: Ms A V Mclean Solicitors for respondent: Crown Solicitor for South Australia

JUDGE1 MULLIGHAN J The appellant was charged with the larceny from a supermarket of deodorant to the value of $2.35 on 4 September 1992: contrary to s.131 of the Criminal Law Consolidation Act, 1935. She pleaded not guilty and, after a trial before a learned Special Magistrate, was found guilty and convicted of that offence. It was then alleged that she was in breach of a bond into which she entered on 11 March 1992. She had pleaded guilty to the larceny of lemon essence and garlic salt to the value of $1.98 from the same supermarket on 24 September, 1991 and had been convicted of that offence. She was released on a bond in the sum of $200 to be of good behaviour for a period of two years and to come up for sentence in breach of that bond. 2. The appellant acknowledged that she was in breach of the bond. On that charge she was sentenced to imprisonment for seven days and on the other charge she was sentenced to imprisonment for fourteen days to be served cumulatively. In addition she was ordered to pay the amount of the bond within three months. She appeals against these sentences on the grounds that they were manifestly excessive and that the learned Magistrate erred in failing to exercise his discretion to suspend the sentences of imprisonment. 3. The appellant has a significant record of prior offending. On four other occasions she was found guilty of larceny in the nature of "shop lifting", and so the learned Magistrate had to sentence her for the fifth and sixth occasions she was before the court for that offence. 4. In his remarks on penalty he placed considerable emphasis on the need for general deterrence. He said: "Offences of larceny of the shop stealing variety I regard as quite serious having regard firstly to their prevalence, they are absolutely rife, and having regard secondly to the fact that they affect most members of the community in that shopkeepers find themselves forced to increase the price of every day items in order to cover the outrageous incidence of such offending thereby passing on to each and every one of us the consequences of your offending and the offending of thousands of others who are similarly inclined." 5. He referred to her record of previous offending and said that she had "constantly abused" the leniency which had previously been given to her including by being in breach of bonds by again offending. He noted that she entered into a bond in 1990 and was in breach the following year and that within six months she was in breach of the bond into which she entered in 1991. He went on to say: "I am aware that a suspended sentence has not been utilised, but I consider such a penalty to be inadequate punishment for you and insufficient deterrent to you and to the many other repeat offenders in the community. I regard immediate imprisonment as the only appropriate penalty to impress upon you that this is what you can inevitably expect at this stage of your career of offending." 6. There was a considerable amount of material placed before the learned Magistrate as to the personal circumstances of the appellant in the form of pre-sentence reports and medical reports. She is aged 32 years, lives in a de facto marriage relationship and has a daughter aged 5 years. She suffers serious ill health and has suffered extensive violence and mental abuse at the hands of her de facto husband. Initially she enjoyed a stable family life as a young child but suffered the effects of the alcoholism of her father. She ran away from home on many occasions, eventually leaving home for the last time when she was aged 17 years. She left school at the age of 15 years and has been in employment on various occasions for relatively brief periods. In recent years the violence of her de facto husband led to her reporting his conduct and he was charged with assault occasioning actual bodily harm and sentenced to imprisonment which was suspended. She lived apart from him for some time and returned to live with him in recent times. 7. The appellant has a long history of alcohol abuse and on occasions has abused drugs which have been prescribed for her. She has ended her substance abuse in recent times by seeking expert assistance. She suffers considerable anxiety as she has a serious medical condition involving the cervix which causes her to fear cancer in that region, a condition from which a near relative died. She suffers from a disc lesion in her lumbar spine which, together with arthritis, causes extreme pain from time to time. She takes strong medication and has extensive treatment including in hospital. Dr. Fugler, a forensic psychologist, expressed the opinion that the appellant has poorly developed coping skills under conditions of stress and her intellectual functioning is within the Lower Average range. According to him there are signs that she has suffered the "battered woman's syndrome" and it is difficult to separate her lengthy history of prior offending from periods of psychological dysfunction. 8. The pre-sentence reports establish that the appellant has previously responded extremely well to community service work which she has been required to undertake, so much so that she remained at one place as a voluntary worker and performed her duties to the satisfaction of those in charge. It also appears that she benefited from community service and from her comparatively recent involvement with a group which supports victims of domestic violence. 9. It is unnecessary for present purposes to recite all of the material relating to the personal circumstances of the appellant which was placed before the learned Magistrate. It is sufficient to say that there are many features of her background which excite sympathy, which offer some explanation for her offending and which reveal that she has some prospects of successful rehabilitation. Apart from the matters which I have mentioned, she claims that her relationship with her de facto husband has greatly improved. She cares for her daughter and there is no suggestion that she does not do so appropriately. All of these matters required the consideration of the learned Magistrate in the exercise of the sentencing discretion. 10. In an appeal of this nature it must be kept in mind that there should not be any interference with the sentencing discretion unless it has miscarried due to error. It is not enough to establish that the appeal court would have exercised the discretion in a different way. 11. In considering whether the learned Magistrate was in error in the exercise of the sentencing discretion it must be accepted that he had seen the appellant during the trial and had, no doubt, formed an impression of her. She could not claim remorse and contrition as factors pointing to successful rehabilitation. She pleaded not guilty and has continued to maintain that she did not commit the last offence. The learned Magistrate was entitled to the view that the repeated offending of the appellant justified a more severe sentencing approach than had previously been employed as the time had come when the Court could no longer go on extending leniency without some favourable response from the appellant. In my view the sentences of imprisonment, to be served consecutively, were justified in the circumstances and were not, in themselves, manifestly excessive. In reaching this conclusion, I have had regard to the submission of Mr. Bennett as to the circumstances in which the appellant committed the offence 24th September 1991. The appellant claims that she stole the lemon essence and garlic salt to prepare food as a response to the verbal abuse of her defacto husband. Nevertheless a short sentence imprisonment was justified in my view. 12. The next question in this appeal is whether the learned Magistrate was in error in declining to suspend the sentences of imprisonment. Clearly, he was asked to do so and he considered that request. The correct approach in considering whether a sentence of imprisonment should be suspended was discussed by Walters J in Wood v. Samuels (1974) 8 SASR 465 at p 468: "Speaking for myself, I would think that a suspended sentence is imposed only when by eliminating all other alternatives, the court thinks the case is one for imprisonment, and, though it be a case for imprisonment, an immediate custodial sentence is not required in the circumstances of the particular case. In my view, a suspended sentence is aimed primarily at the offender whom it is not appropriate to send to prison for the first time and who is most likely to benefit from an exercise of the court's clemency. Admittedly there are no comprehensive specific criteria which tell a court when a case is one fit for a suspended sentence. But the perceived seriousness and the intrinsic character of the particular offence, and any element of persistence, can serve as important restraints on the choice of a suspended sentence. On the other hand, the likelihood that further criminal behaviour cannot reasonably be assumed is a matter which may well bring the offender within the scheme of the legislative policy which enables the rigours of a custodial sentence to be avoided." 13. Walters J went on to adopt the reasoning process of Lord Parker LCJ in R. v. O'Keefe (1969) 2 QB 29 at p 32: "It seems to this court that before one gets to a suspended sentence at all, the court must go through the process of eliminating other possible courses such as absolute discharge, conditional discharge, probation order, fines, and then say to itself: this is a case for imprisonment, and the final question, it being a case for imprisonment, should be: is immediate imprisonment required, or can a suspended sentence be given?" 14. It seems clear from the remarks on penalty of the learned Magistrate that he considered that there were two matters which prevented the sentences being suspended, the need for general deterrence and the prior offending of the appellant. Presumably the learned Magistrate had knowledge of the prevalence of shop lifting in the community from some reliable source. General deterrence in cases where the offence is prevalent is an appropriate consideration "so long as it does not result in the offender being made the scapegoat of other people who have committed similar crimes but have not been caught and convicted": Martin v. Scotland (1972) 2 SASR 271 per Walters J at p 272. Furthermore the prevalence of a particular offence "can seldom, if ever, be the dominant" factor. The circumstances peculiar to the particular offender and the particular offence must always be taken into account, as well as the general nature of the offence: Giles v. Barnes (1967) SASR 174 per Bray CJ at p 181. 15. In my view the learned Magistrate gave too much emphasis to the prevalence of the offence of shoplifting and the need for general deterrence and too little emphasis to the personal circumstances of the appellant. True it is that she has a significant history of prior offending, but the material before the learned Magistrate established a psychological explanation for her conduct of a significant mitigating nature. It seems that the learned Magistrate discounted much of this material and there is no reason why he should have done so. Furthermore, there was evidence of a real prospect of rehabilitation. The author of the second pre-sentence reports summarised her view as follows: "Both supervised probation and community service would be appropriate sentencing options to allow Miss Scott to make retribution for her offence and to address the ongoing problems suffered by victims of violence and addiction. A community based sentence would also enhance Miss Scott's chances of utilising social and family support systems." 16. In my view it has been established that the learned Magistrate was in error in the exercise of the sentencing discretion by giving undue emphasis to the two matters I have mentioned and too little emphasis to the circumstances in which, and the reasons why, she committed the offences. The sentencing discretion must be exercised afresh. I have said the sentences of imprisonment are justified and should be confirmed. However, there is a sound basis to suspend the sentences upon the appellant entering into a bond in the sum of $100 to be of good behaviour for a period of two years, to be under the supervision of a probation officer, to obey the lawful directions of the probation officer as to her place of residence and treatment or counselling which she should undertake with respect to substance abuse and for psychological problems and that she undertakes 75 hours of community service within the period of 18 months from the date of the bond. The order that the appellant pay the sum of $200 upon the estreatment of the earlier bond is set aside. The appellant does not have the means to pay that amount and in view of the sentence of imprisonment of seven days, the further penalty of payment of a pecuniary sum is not justified in the circumstances. 17. I allow the appeal for the purpose of suspending the sentences upon the appellant entering into a bond in these terms and to set aside the order for the payment of the sum of $200.