Allie v The State of Western Australia
[2016] WASCA 6
•13 JANUARY 2016
ALLIE -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 6
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 6 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:134/2015 | 17 DECEMBER 2015 | |
| Coram: | NEWNES JA MAZZA JA | 13/01/16 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | MICHAEL NOEL ALLIE THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence One count of stealing as a servant Criminal Code (WA), s 378(7) Store manager Goods valued at $17,175.00 Previous record of similar offences 20 months' immediate imprisonment Whether manifestly excessive |
Legislation: | Nil |
Case References: | Bessell v The Queen (Unreported, WASCA, Library No 980199, 4 March 1998) Chan v The Queen (1989) 38 A Crim R 337 Collins v The State of Western Australia [2007] WASCA 108 Davis v The Queen [2002] WASCA 298 Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 Pain v Forbes [2000] WASCA 260 R v Jeffree (Unreported, WASCA, Library No 980150, 13 February 1998) R v Ottobrino [1999] WASCA 207 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ALLIE -v- THE STATE OF WESTERN AUSTRALIA [2016] WASCA 6 CORAM : NEWNES JA
- MAZZA JA
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : BOWDEN DCJ
File No : IND 946 of 2014
Catchwords:
Criminal law - Appeal against sentence - One count of stealing as a servant - Criminal Code (WA), s 378(7) - Store manager - Goods valued at $17,175.00 - Previous record of similar offences - 20 months' immediate imprisonment - Whether manifestly excessive
Legislation:
Nil
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr S Rafferty
Respondent : No appearance
Solicitors:
Appellant : Seamus Rafferty
Respondent : No appearance
Case(s) referred to in judgment(s):
Bessell v The Queen (Unreported, WASCA, Library No 980199, 4 March 1998)
Chan v The Queen (1989) 38 A Crim R 337
Collins v The State of Western Australia [2007] WASCA 108
Davis v The Queen [2002] WASCA 298
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Pain v Forbes [2000] WASCA 260
R v Jeffree (Unreported, WASCA, Library No 980150, 13 February 1998)
R v Ottobrino [1999] WASCA 207
1 NEWNES JA: This is an application for leave to appeal against sentence. On 23 June 2015, the appellant was convicted after his plea of guilty in the District Court of one count of stealing as a servant, contrary to s 378(7) of the Criminal Code (WA). He was sentenced by Bowden DCJ to 20 month' immediate imprisonment. The appellant contends that the sentence was manifestly excessive.
Background
2 At the time of the offending the appellant was employed as a store manager of a Supa IGA supermarket in Waterford. On 1 August 2012, the appellant used the store's computer-ordering system to place an order for cigarettes in excess of the store's requirements to the total value of $17,175.00. The cigarettes were delivered the following day and placed in the store's cash room.
3 Later that day, the appellant removed the cigarettes from the cash room and loaded them into the boot of his car. He conveyed them to his car using a shopping trolley and concealed them from view by packing other boxes around them. Following the completion of his shift, the appellant left the store in his car. Some time later he was stopped by police and a search of the car revealed the cigarettes in the boot. The cigarettes were recovered in full.
The sentencing remarks
4 The sentencing judge noted that the appellant was 43 years of age. He had had a relatively happy upbringing with supportive parents. The appellant said, however, that he had been sexually abused at school in his early teens and had left home shortly afterwards. He had ceased attending school and worked in a fruit and vegetable shop while living on the streets or with acquaintances. Over that period the appellant had been involved in antisocial activities.
5 The sentencing judge observed that the appellant's life had taken on a degree of stability when he turned 25 and met his current wife, with whom he has two children. Both children have health issues. The appellant had been in full-time employment in the two years prior to the offending and his wife had been in casual employment.
6 It was accepted by the sentencing judge, on the basis of a psychological report and a pre-sentence report, that the appellant suffered from depression and that he had an abnormal behaviour pattern which caused him on occasion to act impulsively and irrationally. His Honour also accepted the statement in the psychological report that, because of the appellant's psychological state, stress was likely to affect his judgment. His Honour took into account that at the time of the offending the appellant was experiencing psychological stress because of the health issues of his children and the appellant's own unresolved problems with the sexual abuse he had experienced.
7 The sentencing judge described the offending as serious, noting that the appellant had breached the trust placed in him as store manager and had used his position and knowledge of the store's systems to commit the offence. The amount involved in the offending was significant for a business of the nature of the IGA store, although his Honour took into account that the property had been recovered. His Honour also noted that the appellant had prior relevant convictions, which demonstrated the need for specific deterrence.
8 The sentencing judge reduced the sentence that he would otherwise have imposed by 25% for the appellant's plea of guilty. He sentenced the appellant to 20 months' immediate imprisonment, with eligibility for parole.
The ground of appeal
9 The sole ground of appeal is that the sentence of 20 months' immediate imprisonment was manifestly excessive. Counsel for the appellant accepted that immediate imprisonment was the appropriate sentence. His principal submission was that the term was too long.
The disposition of the application
10 The relevant principles are well-established and can be shortly stated.
11 A ground of appeal asserting that a sentence was manifestly excessive relies on inferred error. When considering whether a sentence is manifestly excessive, it is necessary to view the sentence in light of the maximum sentence prescribed by law for the offence (in this case, 10 years' imprisonment), the standard of sentencing customarily observed with respect to the offence, the place that the criminal conduct occupies on the scale of seriousness of offences of that type, and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342.
12 However, while for consistency it is necessary to have regard to sentences customarily imposed in cases involving similar offending, the range of sentences that have been imposed in the past does not fix the boundaries within which judges must, or even ought, to sentence in the future: see Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [39] - [40].
13 I have had regard to a number of cases involving offending of this kind. None of them support the appellant's contention that the sentence was manifestly excessive. I have had particular regard to the various cases relied on by counsel for the appellant, namely, Bessell v The Queen (Unreported, WASCA, Library No 980199, 4 March 1998); R v Jeffree (Unreported, WASCA, Library No 980150, 13 February 1998); R v Ottobrino [1999] WASCA 207; Pain v Forbes [2000] WASCA 260; Davis v The Queen [2002] WASCA 298; and Collins v The State of Western Australia [2007] WASCA 108. It is unnecessary to canvass those cases. Suffice it to say that none of them is comparable to the present case. It is significant, however, that in all but Jeffree the offender had no prior record of similar offences or other serious offences involving dishonesty, and in Jeffree an important factor was that the offender was the mother of a young child and a term of imprisonment would result in the child being deprived of parental care.
14 In the present case, the appellant, among other things, had been convicted in 1999 of two counts of robbery and sentenced to 4 years' imprisonment; in 2004, he had been convicted of stealing as a servant and sentenced to 189 days imprisonment, suspended for 12 months; and in 2007 he had been convicted of stealing, in circumstances analogous to stealing as a servant, and sentenced to 12 months' imprisonment, suspended for two years.
15 The appellant is not, of course, to be punished again for his previous offending, but his criminal record demonstrates that this offence was not an uncharacteristic aberration. It is also evident that the appellant has not availed himself of the opportunities he has been given in the past to change his ways and that personal deterrence is a factor of particular importance in this case.
16 There is little by way of mitigation beyond the appellant's plea of guilty, for which the sentencing judge allowed a deduction of 25%, pursuant to s 9AA of the Sentencing Act 1995 (WA). The offending involved a serious breach by the appellant of the trust that had been placed in him by his employer. It did not occur as the result of a spur of the moment decision but was a calculated act of dishonesty made possible by the position he held and the facilities made available to him by his employer. The amount involved was, as the sentencing judge remarked, significant for a small business.
17 In my view, the ground of appeal has no reasonable prospect of succeeding. The application for leave to appeal should be dismissed, with the result that the appeal is taken to have been dismissed.
18 MAZZA JA: I agree with Newnes JA.
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