Afife Halim Said v SA Police No. SCGRG93/1975 Judgment No. 4321 Number of Pages 3 Criminal Law and Procedure

[1993] SASC 4321

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA MATHESON J

CWDS
Criminal law and procedure - offences against property - elderly woman with no previous convictions and in poor health pleaded guilty and convicted of stealing baby clothes - whether conviction should have been recorded in the circumstances.

HRNG ADELAIDE, 7 December 1993 #DATE 7:12:1993
Counsel for appellant:     Ms C M O'Connor
Solicitors for appellant:    Legal Services Commission of SA
Counsel for respondent:     Ms G L Ebbeck
Solicitors for respondent: Crown Solicitor

ORDER
Appeal allowed.

JUDGE1 In this matter, the appellant was charged on a complaint for that, on 1 April 1993, at Salisbury, in the State of South Australia, she stole clothing, together of the value of $23.34, the property of Big W Stores. She pleaded guilty before Mr Liddy SM. A conviction was recorded. She was fined $250, and court costs of $66 and a levy of $25 were imposed making a total of $335. She was given five months to pay. 2. An affidavit of Claire Mary O'Connor, filed on 29 October, was admitted by consent. Ms O'Connor, who appeared for the appellant before the learned Magistrate and before me, deposed in her affidavit as to what was said before the Magistrate. 3. I quote from that affidavit:
    "4. The prosecutor, Mr Leganin, gave brief allegations
    in relation to the matter stating that my client was seen to
    enter the Big W Store concerned, to fold some baby clothing
    items into small parcels and place them under her shirt. Mrs
    Said then left the store without paying for the items and when
    spoken to by a security officer and later the police, did not
    say anything as she does not speak English. The prosecutor then
    said that Mrs Said had no previous record.
     5. I then made submissions in mitigation of penalty. I
    submitted to the learned special magistrate that the applicant
    was pleading guilty to the charge and had never been in any sort
    of trouble either here nor in her home country of Lebanon. I
    did not record my submissions word for word but I have refreshed
    my memory from my notes and dictated this affidavit within an
    hour of leaving the Court. From my notes and memory I can say
    that I informed the Learned Special Magistrate that my client
    was a 65 year old woman and had lived in Australia for 10 years.
    She was the mother of some ten children, three of whom lived in
    Australia and seven were residing in Lebanon. The Appellant and
    her husband had decided to leave Lebanon because of the troubles
    their home was very close to Beiruit(sic) where, as His Honour
    would be aware, there had been a war for many years. The
    Appellant had three children living in South Australia and came
    with her husband to live close to them. One of her daughters
    had been killed in Lebanon as a result of the war at the age of
    23 years. This daughter had three children of her own and these
    children were then brought up by the remaining members of the
    family who still resided in Lebanon. I further informed the
    Learned Special Magistrate that when the Appellant and her
    husband arrived in South Australia her husband worked for
    Bridgestone for some years and then retired. One year ago he
    died from a heart attack at the age of 68 years and since that
    time the appellant has been living with her son, his wife and
    their two children. I further informed the Learned Special
    Magistrate that my client's son used to be self employed but
    that business had failed and he is now on unemployment benefits.
    The Appellant is a recipient of the widow's pension and pays
    board to her son. I then informed the Learned Special
    Magistrate that the appellant says that she is in good health
    but her daughter who was in court had informed me that in fact
    her mother suffers from low blood pressure and was taking
    medication daily and further that her daughter says that her
    mother had been extremely depressed since the death of her
    father the Appellant's husband. I confirmed that the Appellant
    and her family have had no contact with the police since her
    arrival in South Australia and she was extremely shocked and
    upset by her contact with the police and the security officer on
    this occasion because of her bad experiences with authority
    figures in Lebanon.
     6. I then submitted to His Honour that His Honour exercise
his discretion under the Criminal Law Sentencing Act and not
    record a conviction in relation to the matter because of the
    following:
     (a) my client's age.
     (b) her health.
     (c) her antecedents.
     (d) the nature of the offending.
     (e) That her involvement with the police in relation to this
    offending had been salutory(sic) experience for her and, because
    of this, she was unlikely to eve(r) offend again.
     (f) that the prosecution were agreeable that the matter ought
    to proceed without His Honour recording a conviction.
     7. His Honour then imposed the penalty. He said he was going
    to convict the appellant and fine her, and then imposed a fine
    of $250 with $66 costs and a $25 levy. His Honour then said
    that he would record a conviction against the Appellant for the
    same reasons that he convicted an offender who appeared earlier
    that morning.
     8. I then said that neither the Appellant nor myself had been
    present in court that morning when His Honour had obviously
    sentenced another shoplifting offender and I was hoping his
    Honour might be able to give reasons to the Appellant in court
    on this matter. His Honour then appeared to turn some pages of
    a book and made some further (remarks) in relation to the
    failure to accept my submission not to record a conviction,
    along the lines of the cost to the community that shoplifting
    causes and the prevalence of the offence." 4. In his subsequent typewritten sentencing remarks, his Honour said:
    "I take all those matters put by Miss O'Connor into
    account in imposing penalty on you. Having regard to the fact
    that larceny of the shoplifting variety is so widespread causing
    losses of millions of dollars each year to stores and affecting
    most members of the community who are obliged to pay higher
    prices to cover the incidence of such offending. I regard such
    offending as, generally speaking, calling for a conviction.
    Additionally the items in question in your particular case were
    hardly a necessity of life such as foodstuffs." 5. I accept the submission made by Ms O'Connor that those remarks were the same remarks that his has Honour made in sentencing another offender earlier on the same day, for stealing a substantial number of compact discs. I also accept Ms O'Connor's submission that his Honour did not say, in front of the appellant (who, in fact, could not speak English) "Additionally, the items in question in your particular case were hardly a necessity of life, such as foodstuffs". 6. Ms G. Ebbeck, who appeared for the respondent, very properly did not oppose the appeal against the recording of a conviction. Moreover, she conceded that the fine was manifestly excessive, bearing in mind the circumstances set out in Ms O'Connor's affidavit, including the fact that the appellant is on a widow's pension of $158 per week. 7. In all of the circumstances, I have no hesitation in upholding the submission of the appellant's counsel. 8. The appeal is allowed. The conviction will be set aside. In lieu of the fine of $250, I substitute a fine of $80. The orders as to the costs before the Magistrate and the levy will stand.