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.