Supreme Court of SA|2003-09-22|Before: Perry J

SWEENEY v CORPORATE SECURITY GROUP No. SCCIV-03-705 [2003] SASC 324 (22 September 2003)

1 PERRY J. The appellant appeals against the sentence imposed upon him in the Magistrates Court sitting at Adelaide following his plea of guilty to a charge that on 23 October 2002 at Golden Grove he knowingly obstructed or hindered a Commonwealth public official in the performance of his functions, contrary to s 149.1(1) of the Criminal Code Act 1995 (Cth).

2 This is the second occasion upon which the appellant has been convicted of an offence against the laws of the Commonwealth. The first occasion followed his plea of guilty to stealing, between May 2000 and January 2001, $10,500 from the Australian Postal Corporation.

3 He was dealt with for that offence in the Magistrates Court on 26 July 2001. The sentencing magistrate imposed a sentence of 8 months imprisonment but released the appellant forthwith upon his entry into a good behaviour bond for a period of 18 months.

4 The present offending occurred towards the end of the term of that bond.

5 The same magistrate who had dealt with the appellant in 2001 imposed the penalty now under appeal.

6 On the present offending, which I will call the breaching offence, the sentencing magistrate imposed a sentence of 9 weeks imprisonment, but made provision for an early recognisance release after the appellant had served 4 weeks of that sentence. The recognisance was for a term of 18 months, during which time the appellant is to be under the supervision of a community corrections officer.

7 As for the earlier sentence, pursuant to s 20A(5)(c)(i) of the Crimes Act 1914 (Cth) ("the Crimes Act"), the magistrate ordered that the appellant be imprisoned for that part of the sentence of imprisonment previously fixed that he had not served at the time of his release.

8 That was, of course, the whole of the 8 months sentence.

9 The 4 week custodial component of the penalty for the breaching offence was directed to be served cumulatively on the activated sentence of 8 months.

10 So that in the result, the head sentence now applicable to the appellant is 8 months and 9 weeks, but the appellant stands to be released on recognisance after serving 8 months and 4 weeks.

11 The grounds of appeal set out in the notice of appeal are as follows:

"1. The Learned Special Magistrate erred in imposing a sentence of 9 weeks imprisonment in that the sentence is manifestly excessive.

2. The Learned Sentencing Magistrate erred in permitting the revocation of the s 20(1)(b) order and ordering (pursuant to s 20A(5)(c) Crimes Act) that the appellant be imprisoned for that part of the sentence of imprisonment fixed under s 20(1)(b) that he had not served at the time of his release.

Particulars

The Learned Sentencing Magistrate failed to give sufficient weight to:

(i) the circumstances in which the offence was committed in particular that there was no loss to the Commonwealth or benefit to the appellant;

(ii) the other sentencing options available to the Court that would have been more appropriate to the circumstances of this offence and this offender;

(iii) the fact that the appellant had almost completed the term of his bond without offending;

(iv) the defendant's plea of guilty and co-operation in the investigation of the matter showed genuine contrition.

The Learned Sentencing Magistrate placed too much weight on 'the need to protect the community' and the need for general and specific deterrence having regard to the circumstances specific to this offence and offender.

The Learned Sentencing Magistrate failed to have regard or sufficient regard to the rehabilitation of the appellant and the detrimental effect an immediate custodial sentence would have on that process."

12 The appellant contended as to the sentence of 9 weeks imprisonment imposed for the breaching offence, that the whole of it should have been made the subject of an early release order, rather than part only. As for the 8 month term of imprisonment imposed with respect to the earlier offending, the appellant submitted that the sentencing magistrate should not have activated it, but rather should have chosen some other option short of immediate imprisonment.

13 The arguments adduced on the appeal substantially focussed on the circumstances of the breaching offence, and the question whether the sentence imposed for that offence was excessive. The manner in which the appellant presented the appeal tended to obscure the fact that two quite different discretions are involved. These are the general sentencing discretion which fell to be exercised with respect to the breaching offence, and the separate discretion as to whether the earlier sentence of 8 months imprisonment should be activated.

14 Even if the appellant was to be successful in persuading the Court that the whole of the sentence imposed on the breaching offence should have been made the subject of an early release order, the question would still remain as to whether it was committed in such circumstances that it was proper to revoke the early release order applying to the 8 month term of imprisonment and direct that the appellant now serve that term.

15 The argument advanced by the appellant tended to conflate the two separate discretions involved.

16 That is not to say that the circumstances in which the breaching offence was committed may be relevant both to the question of the appropriate sentence to be imposed for the breaching offence and to the question whether or not the appellant should be ordered to serve the sentence of 8 months imprisonment which had previously been imposed. But the distinction between the two discretions must still be maintained.

17 The sentencing regime applicable to those who offend against the laws of the Commonwealth is largely contained in various provisions of the Crimes Act.

18 Part 1B of the Crimes Act, commencing with s 16, is headed "Sentencing, imprisonment and release of federal offenders".

19 General sentencing principles applicable to offenders against laws of the Commonwealth find expression in s 16A of the Act. That section tabulates a number of matters which must be taken into account by a sentencing court.

20 For example, the court must take into account the injury, loss or damage resulting from the offence; the need to ensure that the defendant is adequately punished; the prospects of rehabilitation of the defendant; and his or her personal circumstances.[1]

21 Section 20 of the Crimes Act deals with the conditional release of offenders. Relevantly that section provides:

"20. (1) Where a person is convicted of a federal offence or federal offences, the court before which he is convicted may, if it thinks fit:

(a) by order, release the person, without passing sentence on him, upon his giving security, with or without sureties, by recognizance or otherwise, to the satisfaction of the court, that he will comply with the following conditions:

(i) that he will be of good behaviour for such period, not exceeding 5 years, as the court specifies in the order;

............

(iv) that he will, during a period, not exceeding 2 years, that is specified in the order, comply with such other conditions (if any) as the court thinks fit to specify in the order, which conditions may include the condition that the person will, during the period so specified, be subject to the supervision of a probation officer appointed in accordance with the order and obey all reasonable directions of a probation officer so appointed; or

(b) sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in paragraph (a) either forthwith or after he or she has served a specified period of imprisonment in respect of that offence or those offences that is calculated in accordance with subsection 19AF(1).[2]

2. ............"

22 The consequences of a failure to comply with a condition of release (in this case a failure to be of good behaviour) are set out in s 20A of the Crimes Act.

23 Relevantly for present purposes, that section provides:

"20A (1) Where a person has been ..... released in pursuance of an order made under subsection 20(1), and information is laid before a magistrate alleging that the person has, without reasonable cause or excuse, failed to comply with a condition of the order, the magistrate may:

(a) issue a summons directing the person to appear, on a date, at a time and at a place fixed in the summons, before the court by which the order was made; or

(b) if the information is laid on oath and the magistrate is of the opinion that proceedings against the person by summons might not be effective - issue a warrant for the apprehension of the person.

............

(5) Where, in accordance with this section, a person who has been .... released in pursuance of an order made under subsection 20(1), appears or is brought before the court by which the order was made, the court (whether or not constituted by the judge or magistrate who made the order), if it is satisfied that the person has, without reasonable cause or excuse, failed to comply with a condition of the order, may:

(a) ............

(c) in the case of a person who has been released by an order made under paragraph 20(1)(b):

(ia) impose on the person a monetary penalty of not more than $1000; or

(ib) subject to subsection (5A), amend the order so as to extend the period for which the person is required to give security to be of good behaviour; or

(ic) revoke the order and make an order under section 20AB; or

(i) revoke the order and deal with the person for the offence or offences in respect of which the order was made by ordering that the person be imprisoned for that part of each sentence of imprisonment fixed under paragraph 20(1)(b) that the person had not served at the time of his or her release; or

(ii) take no action.

(5A) The court may not, under subparagraph (5)(c)(ib), extend a period so that the period as extended would be more than 5 years.

(5B) ...........

(6) Where a person who has been .... released in pursuance of an order made under paragraph 20(1)(b), is dealt with under subsection (5) for the offence or offences in respect of which the order was made, the court, in so dealing with the person, shall, in addition to any other matters that the court considers should be taken into account, take into account:

(a) the fact that the order was made;

(b) anything done under the order; and

(c) any other order made in respect of the offence or offences.

......."

24 Section 20AB, which is referred to in s 20A, subsection (5)(c)(ic), relevantly provides:

"(1) Where under the law of a participating State or a participating Territory a court is empowered in particular cases to pass a sentence or make an order known as a community service order, a work order, a sentence of periodic detention, an attendance centre order, a sentence of weekend detention or an attendance order, or to pass or make a similar sentence or order or a sentence or order that is prescribed for the purposes of this section, in respect of a State or Territory offender, such a sentence or order may in corresponding cases be passed or made by that court or any federal court in respect of a person convicted before that first-mentioned court, or before that federal court in that State or Territory, of a federal offence.

.......

(1B) A court is not precluded from passing a sentence, or making an order, under subsection (1) only because the court is empowered under section 20AC, in relation to a person who has failed to comply with such a sentence or order, to take action that is, or may be, inconsistent with action that, under the law of a participating State or participating Territory, a court of that State or Territory is empowered to take for such a failure by a State or Territory offender.

.......

(3) Where a sentence or order referred to in subsection (1) is passed or made under that subsection in respect of a person convicted in a State or Territory of a federal offence, the provisions of the laws of the State or Territory with respect to such a sentence or order that is passed or made under those laws shall, so far as those provisions are capable of application and are not inconsistent with the laws of the Commonwealth, apply, by virtue of this subsection, to and in relation to the sentence or order passed or made under subsection (1).

(4) Where a court passes a sentence, or makes an order, under subsection (1) in respect of a person convicted of an offence against the law of the Commonwealth, the court may also do all or any of the following:

(a) impose any fine or other pecuniary penalty that the court is empowered to impose on the person for the offence;

(b) make any order requiring the person to make reparation or restitution, or pay compensation, in respect of the offence that the court is empowered to make;

(c) make any other order that the court is empowered to make."

25 Section 20AB applies to orders which may generically be referred to as "community service orders".

26 There is no provision in the law of South Australia whereby an order may be made that a defendant perform community service.

27 However, under the Criminal Law (Sentencing) Act 1988, a sentencing court may permit a defendant to enter into a bond, which may either be a bond pursuant to which a sentence of imprisonment is suspended (s 38), or a good behaviour bond pursuant to which a defendant may be discharged, with or without recording a conviction (s 39).

28 Pursuant to s 42 of the Act, a bond of either kind may include "a condition requiring the defendant to perform a specified number of hours of community service".[3]

29 On the hearing of the appeal it was assumed that in the context of this case, s 20AB would permit the court to order in response to the breach of the early release order that the appellant enter into a further bond under s 38 of the Criminal Law (Sentencing) Act, with a condition requiring the appellant to perform community service.

30 I am now not so sure whether such a course could be followed in the exercise of the power conferred by s 20AB, given that in this State, having regard to the provisions to which I have referred, an obligation to perform community service is not directly ordered but only indirectly imposed as a condition of a bond.

31 In view of the conclusion which I have reached as to the disposal of the appeal, it is unnecessary to decide the point. It will need to be addressed in an appropriate case.

32 For the breaching offence, being an offence against s 149.1(1) of the Criminal Code Act prosecuted summarily, the sentencing magistrate had power to impose a sentence consisting of a fine of up to $6,600 or imprisonment not exceeding 12 months (Crimes Act, s 4J(3)).

33 By ordering with respect to the breaching offence that the appellant be released on his entry into a recognisance after he had served 4 weeks of the sentence, the magistrate exercised the power given by s 20(1)(b) of the Crimes Act.

34 The order that he serve the term of 8 months imprisonment was an exercise of the power conferred by s 20A(5)(c)(ic)(i) of that Act.

35 On the hearing of the appeal I had before me an affidavit sworn by Ms Michelle Barnes, solicitor, who appeared on behalf of the Commonwealth DPP in the court below and on the hearing of the appeal before me.

36 In her affidavit she summarises the submissions detailing the circumstances of the offending which she put to the sentencing magistrate. What she had to say in the affidavit was not challenged by the appellant.

37 For present purposes, it is convenient to summarise her account as it appears in the affidavit.

38 At the time of the offending the appellant was an employee of the Golden Grove Village licensed post office which was managed by his father, John Raymond Sweeney. John Sweeney's company, Johelen Pty Ltd ("Johelen"), is the licensee of the post office.

39 On 22 October 2002 the postal manager from the Licensed Post Office Support Centre contacted John Sweeney to advise him that he would be carrying out an audit of the post office the following day. The licence agreement with Johelen provided that such audits might be carried out by Australia Post on one day's notice to the licensee.

40 Both the appellant and his father were present when the audit was taken on 23 October 2002. Two discrepancies were uncovered: the first being a $1,000 cash shortfall discovered on the day of the audit; the second being a shortfall of $2,200 discovered the day after, that is, on 24 October 2002.

41 As for the $1,000 discrepancy, no charge was laid in respect of that and there was no adverse allegation made against the appellant as to that amount.

42 As for the $2,200 shortfall, this concerned money involved in a transaction with Armaguard Cash Collection Service ("Armaguard"). It appears that Armaguard withdrew cash from an account with the post office and deposited cash in bags in a safe at the post office.

43 The sentencing magistrate was told that the appellant had prepared two different Armaguard "slips" during the afternoon of 22 October 2002. They are carbon-backed slips on which the exact denominations of cash in each bag are recorded.

44 On the day of the audit, the defendant gave Armaguard a slip stating that one of the bags contained $15,945 in cash, which was the correct amount. However, on the slip he gave to the auditors (which was supposedly a carbon copy of the one that went to Armaguard) he recorded the amount to be $18,145. The effect of this was to conceal from the auditors the $2,200 cash discrepancy.

45 As part of the audit, the auditors contacted Armaguard, and on 24 October 2002 the auditors became aware of the discrepancy between the slip which the defendant had shown to them and the slip he had given to Armaguard. The auditors then contacted Australia Post Corporate Security Group and reported the discrepancy.

46 Subsequently the appellant was interviewed. He admitted falsifying the Armaguard Cash Collection Service slips the day before the audit in order to conceal the $2,200 cash discrepancy. He claimed that he only did this because his father had just paid back about $2,500 worth of deficiencies; that his father was "very sick"; and that he did not want his father to "have a bloody heart attack" if he found out that a further $2,200 was missing.

47 The appellant also claimed that he knew the auditors would find out about the discrepancy the next day, but by that time the post office would have "made" another $10,000 so he could have paid back the $2,200 easily.

48 I must say that I do not understand how such a discrepancy could properly be made good out of further takings. But as this assertion was not challenged by the respondent, I accept it in the terms stated.

49 The appellant said that he become aware of several cash discrepancies which over time would reach $2,200, and that he could not "figure out what was causing them". The appellant admitted that he had made a false statement in relation to the Armaguard Cash Collection Service slips, but claimed that he did not realise the ramifications of making such a false statement, nor that he was doing anything illegal or committing a criminal offence.

50 As for the earlier offending, it was explained to the magistrate that the appellant had pleaded guilty in the Magistrates Court sitting at Adelaide on 26 July 2001 to one count of stealing contrary to s 71(1) of the Crimes Act. The amount involved was $10,500 stolen over a period between 7 May 2000 and 3 January 2001. The money was stolen from Australia Post while the appellant was employed at the Rundle Mall Post Shop. The appellant had admitted making at least 53 false entries on his computer terminal in order to conceal his offending.

51 The magistrate was also informed that the appellant was issued with a warning letter by the Commonwealth DPP on 15 November 1995. That warning letter was said to be "in relation to taking $74 from Australia Post on 3 April 1995 while he was employed at the Greenacres post office which he repaid on 5 April 1995".

52 As I have explained, the same magistrate dealt with the appellant on both occasions. It appears from the file relating to the breaching offence that he had before him a copy of his earlier sentencing remarks.

"13 Section 16 of the Crimes Act requires me to take into account a number of factors relating to the circumstances of the offence, the victim of the offence and to your personal circumstances. Other factors require me to take into account the community interest. I have to take into account the need to deter, not only you, but other people, from committing offences of this nature. I have to ensure that you are adequately punished for what you did.

.......

17 I have considered the competing purposes of punishment. The dominant purposes in punishing you are to protect the community from offences of dishonesty, to deter you and other people from committing such offences and also to promote your rehabilitation.

18 Imprisonment is an option of last resort, to be imposed only after all other sentencing options have been eliminated. I have to take into account the standard of penalty referred to in such cases as Kovacevic v Mills.[4] Because of the seriousness of the offending, I consider that a sentence of imprisonment is appropriate. I hasten to add that it is my intention to make provision for immediate release. Given the serious aspects of the offending, in my view, a sentence in the order of 12 months' imprisonment would have been appropriate. I consider that that should be substantially reduced to reflect your disclosure, your co-operation and your attitude towards the offending, together with the fact that you have made arrangements to repay, in full, what you stole. I reduce the sentence by one-third."

The course of the proceedings in the Magistrates Court

54 On 2 May 2003 the appellant's plea of guilty to the breaching offence and acknowledgment of breach of the bond were taken, and submissions as to penalty were made by counsel appearing for both parties.

55 When the magistrate raised a question whether or not he had the power to extend the term of the bond after it had expired, counsel for the prosecution referred him to R v Campbell.[5] The magistrate accepted that case as authority for the proposition that he had the power to extend the period of the recognisance, notwithstanding that the initial term during which it operated had expired.

56 The conclusion reached by the magistrate as to that aspect of the matter was, in my view, correct. That he dealt with that question demonstrates that he clearly had in mind the possibility of extending the term of the bond as a sentencing option.

57 There was a further appearance by the parties before the sentencing magistrate on 16 May 2003. On that occasion, the magistrate informed Mr Lutt, then of counsel for the appellant, that he did not accept certain of the submissions which Mr Lutt had made. He invited him to consider calling the appellant to give evidence.

58 It appears that what was of concern to the magistrate at that stage was the appellant's assertion to the investigating officers from the Australia Post Corporate Security Group that he did not realise the ramifications of making a false statement in the slip furnished to the auditor, nor that he was doing anything illegal or committing a criminal offence.

59 On 20 May 2003 the appellant was called by his counsel to give evidence as to the circumstances of the offending, more particularly as to the aspect to which I have referred.

60 The appellant explained that at the post office various sums of money were taken over the counter each day. His duties included balancing the moneys.

61 He said that on 22 October 2002 when he performed an operation described as "the change float", there was a deficiency of $900.

62 The remainder of the $2,200 was made up of discrepancies which he identified in balancing the advances made over the counter.

63 After explaining how he had changed the figures in the copies of the Armaguard slips to conceal the $2,200 discrepancy, he stated that his purpose was "to give us an extra day to repay the amount". He said that Armaguard "would inform us the next day that there would have been a discrepancy in the bag and then we would have had to repay it then".

64 He admitted that by handing the auditors the falsified slips he knew that it was "the wrong thing to do" and that his purpose was to "conceal the truth", that the "document was a lie" and that it was dishonest.

65 When the sentencing magistrate stated in his remarks on penalty that he was satisfied on the balance of probabilities that the appellant realised that his actions were dishonest and wrong, that conclusion was inevitable having regard to the appellant's evidence.

66 Later on the same day, that is, on 20 May 2003, the magistrate delivered lengthy remarks on penalty before imposing the sentence now under appeal.

67 At the outset of the hearing of the appeal, Mr Edwardson, who appeared for the appellant, asked the Court to receive what he described as "further evidence". This took the form of a report by a psychiatrist, Dr Craig Raeside, who examined the appellant on 11 June 2003, and a letter dated 28 August 2003 from the Registrar of the Department of Mathematical and Computer Sciences at the University of Adelaide.

68 I reserved the question whether I would admit this evidence.

69 Dr Raeside's report confirms that the appellant has experienced what he described as "a generally unremarkable past history apart from significant drug and alcohol abuse and more recent gambling behaviour". He was unable to find any evidence of a current psychiatric disorder.

70 However, Dr Raeside expressed the view that the history suggested that the appellant had experienced an Adjustment Disorder with Mixed Anxiety and Depressed Mood upon his incarceration, which was for eleven days before he was released on bail pending the appeal. Dr Raeside thought that this condition had "subsequently settled".

71 Dr Raeside thought that if the appellant was again to be incarcerated he would find the experience "quite unsettling and may well develop a significant depressive illness".

72 The letter from the University of Adelaide confirmed the progress which the appellant had made following his enrolment at the beginning of 2003 in the undergraduate course in mathematical and computer sciences. The letter confirms that his results, which were quite good before his imprisonment, fell off sharply after his incarceration.

73 The receipt of the further evidence was opposed by the respondent.

74 The receipt of further evidence on the hearing of an appeal from the Magistrates Court in criminal matters is governed by s 42(4) of the Magistrates Court Act 1991. This provides:

"(4) On an appeal, the appellate court may, if the interests of justice so require, rehear any witnesses or receive fresh evidence."

75 SCR r 97.18(b) permits the court on the hearing of an appeal of this kind in its discretion to "receive further evidence upon any question of fact".

76 There may be a distinction between "further evidence" and "fresh evidence", but the authorities so far do not seem to have drawn such a distinction.

77 The question of fresh evidence on an appeal against sentence was addressed in R v Smith.[6] In that case, King CJ (Cox and O'Loughlin JJ concurring) observed:[7]

"The proper purpose of fresh evidence on an appeal against sentence is to bring before the court facts which were in existence at the time of the imposition of sentence but were not known to the sentencing judge or to explain facts which were before the sentencing judge so as to put them in a new light. It is not open to the Court of Criminal Appeal to intervene upon the basis of events which had occurred since the imposition of sentence: R v O'Shea[8] and fresh evidence is therefore not receivable to establish the occurrence of such events. A clear distinction is necessary between fresh evidence as to events occurring before sentence and evidence as to events occurring after sentence."

78 In a later case, Neill v Police,[9] it was suggested, without deciding the matter, that the power to receive fresh evidence in the case of magistrates appeals in criminal matters may be wider than the power to receive such evidence in appeals against sentence under the Criminal Law Consolidation Act.

79 In any event, in Neill v Police, it was said to be appropriate to receive such evidence in magistrates appeals only in "limited circumstances": see the judgment of Doyle CJ:[10]

"20. It is only in limited circumstances that it is appropriate to receive such evidence. In R v Smith (1987) 44 SASR 587 the court dealt with the power of the Court of Criminal Appeal to admit fresh evidence in an appeal against sentence under the Criminal Law Consolidation Act. It may be that the test under that Act is not the same as the test under the Magistrates Court Act. The power to receive fresh evidence in appeals pursuant to s 42 of the Magistrates Court Act may be a wider power, but I do not have to decide that.

21 In Smith the court held that fresh evidence could be admitted if it relates to a matter that was before the court when sentence was passed, but the fresh matter reveals an aspect of that matter that would not have been known at the time. I refer to the judgment of King CJ at 588 and also to the decision in R v Amuso (1987) 138 LSJS 53 at 56 to 57. I mention in passing that the power of the court to receive fresh evidence cannot be fettered by hard and fast rules, see Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392 at 395 Gibbs CJ."

80 I was also referred to CDJ v AJ,[11] Police v Dorizzi and Ors[12] and Lewis v Holder and Ors.[13]

81 In R v Dorning,[14] in their joint judgment, Walters, Zelling and Williams JJ dealt with an application by an applicant for leave to appeal against sentence under the Criminal Law Consolidation Act to tender at the hearing a psychiatric report detailing the circumstances in which, after sentence, the applicant had made an attempt on his life following the imposition of a sentence of imprisonment.

82 The conclusion reached by the psychiatrist in that case was that there was ".... clear evidence that the applicant had reacted to the sentence that was imposed in a way which demonstrated extreme despair and depression and that it was highly probable that this mental state could again deteriorate if the applicant's attitude to his punishment continued".[15]

83 In its judgment the court observed that while such evidence had in certain limited circumstances been adduced from time to time in appeals from courts of summary jurisdiction, it was not aware of any instance where the Court of Criminal Appeal had allowed the calling of fresh evidence in such circumstances.

"... basically, the task of the Court of Criminal Appeal is to see whether the trial judge went wrong on the material before him. We acknowledge, of course, the power of the Court of Criminal Appeal to permit fresh evidence to be called in a proper case but in an appeal against sentence we do not regard it as generally appropriate to allow an appellant to call evidence to show that he has a marked psychological reaction to the sentence of imprisonment, even though that reaction could not have been foreseen. To allow such evidence as a matter of course might, we think, result in the Court of Criminal Appeal being called upon to review every heavy sentence of imprisonment to which the person upon whom it was imposed reacted with some degree of shock. As the Full Court pointed out in McDougall v Betts,[17] this is an inevitable consequence of the penal system."

85 While it may be that there is a distinction between the function of the Court of Criminal Appeal in dealing with appeals under the Criminal Law Consolidation Act, and the function of the court in dealing with magistrates appeals, in the context of appeals against sentence, I doubt that there is much difference. In any event, while it is clear that in this case I have the power to admit the evidence of the psychiatrist and the letter from the University, I do not think that it is a proper case in which to receive the evidence.

86 I reach that view principally because there is nothing in the evidence sought to be adduced which indicates that the consequences of imprisonment in this case were other than ordinary or predictable results of the appellant's incarceration, or as it was put in Dorning (supra) "an inevitable consequence of the penal system".

87 Even without this evidence, the magistrate would be entitled to assume that a likely consequence of the imprisonment for the first time of a relatively young man could well be a severe depression, and that his university studies would be adversely affected.

89 Even if I was to be wrong in so ruling, for the reasons which I have given I cannot see that it would lead to a different outcome on the appeal.

90 Before dealing with the particular penalties now in question, insofar as the appellant contended that the appropriate course in this case was to impose a fully suspended sentence (by way of an appropriately cast early release order) on the breaching offence, a question arose during the course of argument as to the appropriateness of a suspended sentence in cases where the need for general deterrence was a significant element in the sentencing process.

91 Considerations relevant to the exercise of the discretion to suspend sentences of imprisonment under the relevant statutory provisions in Western Australia was considered by the High Court in Dinsdale.[18] In that case, in the course of his judgment, Kirby J made the following observation:[19]

"[74] The statutory power to suspend the operation of a sentence of imprisonment, although historically of long standing, is sometimes considered controversial.[20] The '[c]onceptual [i]ncongruity' involved in this form of sentence has been criticised.[21] It has been suggested that there is a temptation to use this option where a non-custodial order would have been sufficient and appropriate.[22] It has also been suggested that, despite the rhetoric, such sentences are seen by some not to constitute much punishment at all.[23]" (emphasis added)

92 When the matter was raised, Mr Edwardson quite properly drew my attention to authorities which emphasised that in fact a suspended sentence is a real punishment.

93 For example, in Elliott v Harris (No 2),[24] Bray CJ said:[25]

"So far from being no punishment at all, a suspended sentence is a sentence to imprisonment with all the consequences such a sentence involves on the defendant's record and his future, and it is one which can be called automatically into effect on the slightest breach of the terms of the bond during its currency. A liability over a period of years to serve an automatic term of imprisonment as a consequence of any proved misbehaviour in the legal sense, no matter how slight, can hardly be described as no punishment. This Court has frequently expounded the merits of the suspended sentence in appropriate cases (see, for example, Reg v Weaver,[26] Reg v Locke and Petersen[27] ....."

95 In Paterson v Stevens,[29] Mullighan J observed that the "need for deterrence may be adequately served by a sentence of imprisonment which is suspended", but I am not sure whether he was there referring to personal deterrence rather than general deterrence.

96 However, in DPP (Cth) v Carter,[30] Winneke P said:[31]

"The authorities make it clear that it is wrong to assume that a sentence of imprisonment, albeit wholly suspended, does not play a role in deterring others ..."[32]

97 Winneke P's remarks in Carter are quoted with apparent approval in the decision of the Court of Criminal Appeal of Western Australia in Wood.[33]

"28 The imposition of a suspended term of imprisonment is a real punishment, although public opinion might be thought to disagree."

99 There can be no doubt that it is a "real punishment" vis a vis the defendant, but other considerations may arise in the context of general deterrence.

100 Extensive media reporting of controversial criminal cases and public comment, debate and expressions of concern as to the adequacy of sentencing, is at an unprecedented level.

102 While it would be wrong to allow such pressures to deflect courts from their duty to do justice according to the law, in the area of criminal sentencing, public concerns may properly be given some recognition.

103 If it appears that the common public perception is that a suspended sentence is not a punishment at all, in cases where, consistently with the principle, the sentence must reflect a need for general deterrence, it is doubtful if that object will be achieved where the sentence is suspended.

104 In such circumstances, it is pointless for courts to emphasise that a suspended sentence is a real sentence, if in the public arena its protestations fall on deaf ears.

105 The object of general deterrence will never be achieved by the imposition of sentences which the public regards as derisory.

106 I am fully aware that such observations do not accord with some of the authorities. However, I am able to decide this appeal without breaking any new ground, more particularly with respect to the question whether, to the extent that general deterrence must be an element in the sentences to be imposed with respect to both of the offences in question, this should mean that a suspended sentence is a less appropriate sentencing option than might otherwise be the case.

107 The question of general deterrence must, in any event, be given such weight as in the circumstances seems proper. Furthermore, it is a relevant consideration both in the determination of the head sentence and with respect to the separate question whether or not it should be suspended.

108 In the result, I am content to approach this appeal by reference to the principles which appear in the following passage in my judgment (with which Millhouse J concurred) in R v Wacyk.[35] In that case I said:

"The discretion to suspend a sentence arises under s 38 of the Criminal Law (Sentencing) Act 1988 (SA). Pursuant to that section, a sentence may be suspended by the court 'if it thinks that good reason exists for doing so'. The section speaks for itself. It would be wrong to circumscribe those plain words by reference to any supposed formula or other gloss.

A suspension of sentence may be granted with respect to any offence unless the power to do so in a particular case is expressly taken away by Parliament. The exercise of the discretion miscarries if it is approached with a preconceived view that any particular offence or class of offences may only properly be met by an immediate custodial term of imprisonment.

....... notwithstanding indications given from time to time by this Court that certain offences ordinarily call for an immediate custodial term, there must always be room for the odd exception. Strictures that a given offence or class of offences will ordinarily deserve an immediate custodial term are nothing more than an indication that the need for general deterrence attaching to them will commonly outweigh idiosyncratic features attaching to the case, including considerations personal to the offender.

.......

It will never be possible to isolate any single factor in a given case as being determinative of the exercise of the discretion whether or not to suspend. The exercise of that discretion one way or the other must turn upon a careful evaluation of the overall circumstances of the particular case, which will include consideration of the circumstances of the offending and the circumstances personal to the offender."

109 I am of the view that the approach identified in that dictum is equally appropriate in considering whether or not to make an early release order under s 20(1) of the Crimes Act.

110 The appellant was 29 years of age at the time he was before the lower court. He lives with his father, his father's partner and her three children. He is no longer working in his father's post office. After committing the breaching offence, he resumed studies in maths and computer science at Adelaide University.

111 I mention that after committing the earlier offending, he took up study in a similar course at Flinders University, but gave it up after he had been sentenced.

112 He has only one prior conviction, and that was the conviction which resulted in the early release order and bond.

113 The magistrate's starting point was three months imprisonment, which he reduced by one-quarter on account of the plea of guilty, resulting in a net sentence of 9 weeks imprisonment, as to which he made provision for early release on recognisance after 4 weeks had been served.

114 Before obtaining bail pending the hearing of the appeal, the appellant spent 11 days in custody.

115 To justify interference in the penalty imposed on the breaching offence, it must appear that some error has been made in exercising the sentencing discretion in the sense explained in House v R.[36]

116 Mr Edwardson, who appeared for the appellant on the hearing of the appeal, contended that the sentencing magistrate erred when he said during the course of his sentencing remarks:

"17 I have considered the competing purposes of punishment. The dominant purpose must be to protect the community by deterring you, and others, from committing offences of this nature."

117 Mr Edwardson contended that the prospects for rehabilitation in this case were good, and that bearing that in mind, in the passage to which I have referred, the magistrate gave undue emphasis to the question of deterrence.

118 The sentencing magistrate did have regard to the prospects of rehabilitation. He said:

"15 I have to consider your prospects of rehabilitation. You committed the most recent offence less than three months before the end of your recognisance. By that time you had already completed the period of supervision and had substantially completed the term of the recognisance."

119 After going on to refer to deterrence as "the dominant purpose", he went on to observe:

"18 I have considered the full range of sentencing options. Imprisonment is an option of last resort to be imposed only after all other sentencing options have been eliminated. Given the serious aspects of the circumstances of this offending I consider that a sentence of imprisonment is appropriate."

120 I would accept, and Mr Edwardson did not suggest otherwise, that the sentencing magistrate in fact considered the full range of sentencing options, as he said he had. But it is suggested that he may have given too much weight to one of the factors relevant to the task of sentencing (personal and general deterrence) at the expense of other factors tending to leniency.

121 While it is clear that all relevant circumstances must be taken into account in the process of determining sentence in a given case, it does not follow that all circumstances must be given equal weight. Clearly, at a given time and having regard to the particular circumstances of the case and of the offender, one or more considerations relevant to the sentence to be imposed may properly be given more weight than other factors.

122 For example, in the process of sentencing an offender who presents with a long record of prior offending, including a series of failed attempts at rehabilitation, it may be proper to allow little weight for the prospects of rehabilitation. In other cases, the prevalence of an offence may make it necessary for the court to give greater weight than otherwise might be appropriate towards general deterrence.

123 The gravamen of Mr Edwardson's submissions on this aspect of the matter was that the appellant should properly be regarded as a good candidate for rehabilitation, and that it was therefore wrong to have regard to deterrence as the "dominant purpose".

124 The point is a fine one. For example, there could not be any valid criticism of the magistrate if he had said that general and personal deterrence must be regarded as an important factor in the sentencing process in the case of offences of this kind.

125 Having regard to the history of this matter, including the appellant's prior offending, it is by no means obvious to me that he is a good candidate for rehabilitation. He is now aged 29 years and is in a different category from, for example, a young man in his late teens or early twenties coming to court for the first time.[37] At the time of the present offending, he had completed 12 months under the supervision of a community corrections officer, but that did not serve to deflect him from offending again.

126 It has often been observed that in cases of fraud involving breach of trust, general deterrence must be a weighty factor in the sentencing process.[38] However, I accept that in placing the emphasis which he did upon deterrence, to adopt the expression used by Kirby J in Dinsdale,[39] the sentencing magistrate may have adopted a "focus" which was "too narrow".

127 However, the difficulty for the appellant is that if I was to reassess the sentence imposed for the breaching offence for myself, including the order for early recognisance release, I would not consider that any lesser sentence than that imposed by the sentencing magistrate would be appropriate.

128 The breaching was a serious offence. A circumstance of aggravation is that it was committed while the appellant was on a bond. As the sentencing magistrate observed:

"12 The circumstances of the offence were serious. At the time you committed this offence you were subject to the recognisance or bond requiring you to be of good behaviour. You were working in a position of trust and responsibility. You abused that trust. The person you hindered and obstructed was an Australia Post auditor who was fulfilling an important role and function in conducting an audit of the post office. You acted dishonestly with the object of deceiving the auditor, at least temporarily. You falsified the post office records and presented a false record to the auditor for the purpose of the audit. I bear in mind that the detection of the discrepancy was effectively in-built into the arrangements that you made and the discrepancy was not likely to have remained undetected for more than a day or so."

129 It seems to me that for the breaching offence, to oblige the appellant to serve 4 weeks of a 9 weeks term of imprisonment and then (subject to the question of the 8 months sentence) to have the benefit of an 18 month good behaviour bond under the supervision of a community corrections officer, strikes an appropriate balance between the various factors relevant to sentencing for that offence which needed to be taken into account.

130 In reaching that view, I should say that I accept Mr Edwardson's submission that, in an appropriate case, an offender may be given the benefit, on a subsequent offence, of a second suspended term of imprisonment, or in Commonwealth terms, a second early release order applying to the whole of the term of imprisonment imposed for a subsequent offence.[40] But in my view, this is not an appropriate case in which to follow such a course.

131 I would dismiss the appeal insofar as it relates to the sentence imposed for the breaching offence.

Activation of the sentence of 8 months imprisonment

132 As I have explained, this aspect of the appeal involves a consideration of the exercise by the sentencing magistrate of a separate discretion from the sentencing discretion involved in the imposition of the penalty for the breaching offence.

133 If there was an error by the sentencing magistrate in overemphasising the question of deterrence, it appears to have been confined to his consideration of the sentence which he imposed on the breaching offence. The reference in his sentencing remarks to the "dominant" purpose of deterrence appears in a passage where he is dealing solely with the breaching offence. Quite properly, he dealt separately and discretely with the question of activation of the 8 months sentence imposed on the earlier offending. Different considerations fell to be addressed in that context.

134 The appellant had already been sentenced on the earlier offending. There was then no appeal against the sentence of 8 months imprisonment then imposed. On breach of the early release order, he did not fall to be re-sentenced for that offence.

135 Rather, the breach obliged the magistrate to deal with the appellant pursuant to s 20A(5) which defines the powers of the court which may be brought into play where the defendant has "without reasonable cause or excuse" failed to comply with a condition of a pre-release order.

136 It was not suggested that the failure in this case, which was by reason of the commission of the further offence, a failure to be of good behaviour, was other than a failure to comply "without reasonable cause or excuse".

137 As the sentencing magistrate correctly observed, there were five options available to him in respect of the application to enforce the recognisance. I have already referred to the terms of s 20A(5)(c) in which those five options are set out.

138 They are in summary: the imposition of a monetary penalty of not more than $1,000; an extension of the period of the bond; (subject to the comments which I have made above as to this option) revocation of the order for early release and the substitution of an order in the nature of an order for community service; revocation of the early release order and the making of an order that the defendant be imprisoned for that part of the sentence of imprisonment which, pursuant to the early release order, has not been served; or taking no action.

139 The requirement that the court be satisfied that the defendant has failed to comply with the early release order "without reasonable cause or excuse", simply identifies the circumstances in which the discretion to deal with the defendant in accordance with the five options thereafter stated. It does not throw any light on the principles which might govern the selection of one option as opposed to another.

140 This does not mean that the discretion is at large. It must nonetheless be exercised in a principled way.

141 It might be thought that s 20A(6) of the Crimes Act identifies relevant principles. It refers, in addition to any other matters that the court considers should be taken into account, to the fact that the pre-release order was made, anything done under the order, and any other order made in respect of the offence or offences. But in the circumstances of this case, those considerations give very little guidance. That is with the exception that the appellant had, at the time of the breaching offence, served 15 months of the term of the recognisance imposed in July 2001, during 12 months of which time he was under supervision. That, I suppose, was something "done under the order", although regrettably it did not deter him from committing the breaching offence.

142 I have not been referred to any other case in which the nature of the discretion conferred by s 20A(5)(c) of the Crimes Act has been discussed, except for the judgment of Blow J sitting in the Supreme Court of Tasmania in Kay v Hickey.[41]

143 In that case, Blow J referred to three decisions of this Court made in the context of analogous provisions in the Criminal Law (Sentencing) Act. By implication, he accepted that the discussion of principle in those cases was of application to the exercise of the corresponding discretion under s 20A(5)(c).

144 The three decisions to which he referred are R v Buckman,[42] R v Marston[43] and R v Lawrie.[44]

145 Those cases concerned provisions in the Offenders Probation Act (1913) (SA) (since repealed) and analogous provisions in the Criminal Law (Sentencing) Act, which conferred various discretions upon the court when there had been a failure by the defendant to observe the conditions of the recognisance upon which a sentence of imprisonment had been suspended.

146 There is no material difference between the relevant provisions in the two State Acts. There are some differences, however, between those provisions and the relevant provisions in the Crimes Act.

147 The principal difference between the South Australian provisions and s 20A of the Crimes Act is that in the latter section a discretion to exercise the various options as set out in s 20A(5) does not arise until the court is satisfied that the failure to comply with a condition of the early release order is "without reasonable cause or excuse".

148 In the South Australian legislation, however, the court must revoke the suspension and order that the sentence of imprisonment be carried into effect, unless it is satisfied that the failure to comply with the relevant conditions of the bond was "trivial or there were proper grounds upon which the failure should be excused".[45] If so satisfied, various options short of carrying into full effect the suspended sentence may be invoked.

149 It is in that context that King CJ observed in Buckman:[46]

"There is a clear legislative policy that in general a breach of a condition of a recognisance upon which a sentence has been suspended should result in the offender serving the sentence which was suspended. A sentence of imprisonment is imposed and suspended only where imprisonment is fully merited but the court considers it appropriate to give the offender a last chance to avoid imprisonment by leading a law abiding life. It is intended to be a sanction suspended over the head of the offender which is to be activated if there is a lapse into non-law abiding way. The court will not lightly interfere with the ordinary consequence of a breach of the recognisance."

150 In Buckman a consideration which was taken into account was the comparison between the nature of the breaching offence and the nature of the offence which resulted in the suspended term of imprisonment. In Buckman that comparison operated in favour of the offender, in that the suspended term of imprisonment was imposed on an offence of unlawful wounding, whereas the breaching offence was a minor shoplifting offence involving goods to the value of $2.82.

151 In that case, partly by reference to the disparity between the breaching offence and the offence which resulted in the suspension, the court set aside an order revoking the suspension of the sentence.

152 Marston turned on similar considerations to those which were decisive of the outcome in Buckman, namely a marked disparity between the seriousness of the offence resulting in the suspended sentence of imprisonment and the breaching offence. In Marston the appellant was sentenced to a suspended term of three years imprisonment for robbery with violence. Three months later he committed a larceny of two muffins and a knife.

153 On appeal against the revocation of the suspension of the sentence, while the court (King CJ, Perry and Duggan JJ) was of the view that in the ordinary course of events re-offending during the currency of a suspended sentence should result in the revocation of the suspension, there were exceptions. One exception arose where there was such a marked disproportion between the seriousness of the breaching offence and the length of the sentence which would be activated if the suspension was revoked.

154 Lawrie was also a decision of the Court of Criminal Appeal which turned on similar considerations.

155 In the course of my judgment in that case I observed:[47]

"To excuse or vary the consequences of the breach of bond the grant of which resulted in the suspension of a term of imprisonment, has a tendency to undermine the integrity of the sentencing process generally. It follows that the power to do so should be exercised sparingly, and only in cases where proper grounds have been made out or where genuinely special circumstances exist."

156 In Hickey (supra), Blow J described the principles discussed in Buckman, Marston and Lawrie as "very important in the present context, but they are not the only important principles".[48]

157 With respect to Blow J, I am not so sure that the dictum of King CJ in Buckman, which was endorsed in the other two cases to the effect that there was in the South Australian legislation "a clear legislative policy that in general a breach of a condition of a recognisance upon which a sentence has been suspended, should result in the offender serving the sentence that was suspended", is a principle which should be regarded as appropriate in the context of the application of s 20A(5) of the Crimes Act. There are obvious differences between the relevant provisions of the two Acts.

158 For example, in s 58(1) of the Criminal Law (Sentencing) Act, revocation of the suspension with the consequent activation of the suspended term of imprisonment is mandatory unless the court is satisfied that the relevant failure "was trivial or that there are proper grounds upon which the failure should be excused".

159 In s 20A(5) the court must first be satisfied that the defendant's failure is "without reasonable cause or excuse". Once the court is so satisfied, the terms in which the five options which define the nature of the various orders which may in that event be made, are not, in my view, expressed in language which suggests that the option of activating that part of the sentence of imprisonment which has not at that stage been served, is necessarily the predominant option, or the starting point in considering the course to be followed.

160 Rather, I think that once the discretion is invoked, which will only be the case where the court is satisfied that the failure by the defendant is "without reasonable cause or excuse", the court should simply select whichever of the options available to it as seem to be appropriate, having regard to all relevant circumstances of the particular case.

161 On the other hand, there are obviously some factors which it is proper to take into account which are common to both provisions.

162 In the first place, it is always a relevant consideration, whether one is proceeding under the South Australian or the Commonwealth Acts, to have regard to the character of the breaching offence compared with the original offence, and the length of the sentence which would be served if the suspended sentence (or the sentence the subject of a pre-release order) was to be activated in full.

163 That consideration is of particular importance in the context of s 20A(5)(c). In the case of the option identified in subsection (ic)(i), the court does not have the power to shorten the length of the term of imprisonment which stands to be served if the court exercises the power conferred by that subsection.

164 This is to be contrasted with s 58(4)(a) of the State Act, which confers on the court the power, if there are special circumstances justifying it in so doing, to reduce the term of the suspended sentence.

165 However, despite the fact that the sentencing magistrate in this case did not have the benefit of the extended consideration of the relevant statutory provisions which has been afforded to me by reason of the arguments advanced on the hearing of the appeal, it seems that the process which he followed accords with the view which I have expressed. More particularly, there is nothing in the magistrate's treatment of the various options to suggest that he regarded activation of the term of imprisonment the subject of the pre-release order as the ordinary consequence of the breach, to be displaced in favour of other options only where there are special circumstances, that being the approach under the analogous South Australian legislation.

166 The relevant part of the magistrate's sentencing remarks include the following comments:

"19 The principal sentencing issue is whether or not I should make provision for immediate release or should require you to serve part of that sentence. Allied to that issue, is whether I should require you to serve the 8 months' sentence that was previously imposed, or extend the recognizance which expired in January, this year. There was some uncertainty about whether that latter option was available to me. Having regard to the dicta in the case of Campbell,[49] I consider that there is power to extend a recognizance even though it has expired.

20 In the circumstances, I consider that, of the five options available to me in respect of the application to enforce the recognizance, the one that I should adopt is that permitting the revocation of the s 20(1)(b) order and ordering that you be imprisoned for that part of the sentence of imprisonment fixed under s 20(1)(b) that you had not served at the time of your release. I make that order pursuant to s 20A(5)(c) of the Crimes Act.

21 In respect of the 9 weeks imprisonment, I intend to make provision for an early recognizance release after you have served 4 weeks of that sentence. That will be cumulative upon the 8 months which you are required to serve.

22 Mr Sweeney, I gave you an opportunity to avoid serving that sentence, You committed a serious offence during the term of that recognizance. I regret having to send a young man like you to gaol but, in the circumstances, given your conduct during the period of the recognizance, I consider that that, regrettably, is the appropriate course."

167 In this case, it could not be said that there is a relevant disparity between the breaching offence and the offence which resulted in the early release order. While it is true that the earlier offending involved fraudulent conduct which extended over a period of time and involved a substantial amount of money, whereas the breaching offence involved only one incident which involved a substantially smaller amount, both offences were committed in a similar context,[50] that is, the employment by the appellant in a post office, and they both involved an abuse of the trust reposed in him in that capacity.

168 The breaching offence cannot be regarded as minor, and was correctly characterised by the sentencing magistrate as serious. The maintenance of the integrity of postal services and the other services provided by the Australia Post is a matter of public concern. It does not cease to be a matter of public concern by reason of the fact that many of these services are now contracted to the private sector.

169 Given the seriousness of the earlier offending, the immediate release of the appellant on recognisance was merciful. The appellant was given an opportunity to put the earlier offending behind him, and to demonstrate that he was capable of leading a law-abiding life. When he committed the breaching offence, he did so, clearly taking the risk that it might have the effect of subjecting him to the term of imprisonment which had been previously ordered.

170 I should add that although I have been at pains to distinguish between the general sentencing discretion on the one hand and the separate discretion which arises under s 20A, I acknowledge that the Court must nonetheless take into account the interaction between the sentence imposed for the breaching offence and the imposition of one of the options available under s 20A for breach of the early release order relating to the earlier offending.

171 At the end of the day, it is necessary to stand back and look at the overall result flowing from the exercise of the two discretions, and to pose the question whether the overall result is fair and just.

172 In this case, it might be argued that the activation of the sentence of 8 months imprisonment will undermine whatever prospect the appellant has of successful rehabilitation.

173 But sentences of imprisonment will always be counterproductive in terms of rehabilitation. Few people emerge from prison any better than they went in. Nonetheless, imprisonment is sanctioned by Parliament as a sentencing option which may in many instances be coupled with release on a recognisance: see, for example, the Criminal Law (Sentencing) Act, s 38(2a) and the provision in the Crimes Act (s 20(1)(b)) which provides for early release on recognisance after service of part only of a sentence of imprisonment.

174 I have had regard to all of the matters which have been urged upon me by Mr Edwardson, but at the end of the day I am unable to conclude that the sentencing magistrate erred in taking the course which he did in activating the 8 month sentence of imprisonment.

175 In view of the conclusions which I have reached as to the other aspect of the matter, namely whether the penalty for the breaching offence was shown to be manifestly excessive, in the result, I would dismiss the appeal.

Section 16A(2)(m) refers to "the character, antecedents, cultural background, age, means and physical or mental condition of the" defendant. The considerations set out in s 16A bear a close similarity to the tabulation of relevant factors which appears in s 10 of the Criminal Law (Sentencing) Act 1988 (SA).

(Unreported) Doyle CJ, 16 June 1999, judgment No [1999] SASC 270.

SWEENEY v CORPORATE SECURITY GROUP No. SCCIV-03-705 [2003] SASC 324

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Judgment (268 paragraphs)

SWEENEY v CORPORATE SECURITY GROUP No. SCCIV-03-705 [2003] SASC 324 (22 September 2003)

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Cases Cited (19)