Blaser v The Queen N

[1992] SASC 2934

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA COURT OF CRIMINAL APPEAL KING CJ(1), COX(2) AND BOLLEN(3) JJ

CWDS
Criminal law - Sentence - Larceny as a Servant 6 months imprisonment and larceny of motor car 12 months concurrent - two crimes of false pretences 9 months each concurrent - cumulative upon the 12 month sentence - total 21 months with non-parole period 12 months - First offender - Age 24 years - co-operation with police and plea of guilty - sentences upheld on appeal by offender.

HRNG ADELAIDE, 18 June 1992 #DATE 18:6:1992
Counsel for Appellant:  Mr G.P.G. Mead
Solicitors for Appellant:                 Legal Services
  Commission of SA
Counsel for Attorney-General:             Mr P.R. Brebner
Solicitors for Attorney-General:         B.M. Selway
  Crown Solicitor

ORDER
Appeal dismissed.

JUDGE1 KING CJ This is an appeal against sentences imposed in the Central District Criminal Court for four crimes to which the appellant pleaded guilty. 2. The first of those crimes was larceny as a servant for which the appellant was sentenced to imprisonment for six months. The second crime was larceny of a motor car for which he was sentenced to 12 months' imprisonment and the third and fourth crimes were each crimes of obtaining property by false pretences for each of which he was sentenced to nine months' imprisonment. 3. The sentences for the first and second of those crimes were made concurrent with one another. The sentences for the third and fourth crimes, the false pretences crimes, were made concurrent with one another but cumulative upon the sentence for the second crime. There was, therefore, a total head sentence of 21 months' imprisonment. A non-parole period of 12 months was fixed. 4. The crimes were described by the learned sentencing judge in his remarks on imposing sentence in the following terms. He said:
    "I deal with each of the crimes you committed in chronological
    order. First, during the latter part of the period of your
    employment with Mitsubishi Motors Australia Limited which ended in
    October 1990 you as an employee or servant, as the law describes it,
    stole from your employer tools, two car radios, two car stereo
    speakers and safety glasses to the value of $1,243. Secondly, on 7
    October 1990 you stole a motor vehicle valued at about $20,000 from
    near Football Park. You subsequently made alterations to the car.
    You changed some plates etc. to disguise the fact of your theft and
    you used the car for yourself until you were caught. Thirdly, later
    that same day, on 7 October 1990, you committed a crime of fraud
    against the vendor's agent. You obtained a computer, computer
    equipment and accessories of the value of $2,200 by falsely
    pretending that a cheque that you had found in the stolen car, and
    which you had filled out for $2,200, and signed with the name of the
    owner of the cheque, was a good and valid order for the payment of
    money, and that you were the true owner of the cheque. You used the
    stolen driver's licence as part of the fraudulent scheme. Fourthly,
    on the next day, 8 October 1990, you committed a second crime of
    fraud, this time against the vendor of some stereo equipment. You
    obtained a stereo and compact disc system by falsely pretending that
    a cheque, which you, as with the previous one, had found in the
    stolen car and which you filled out to the sum of eight hundred
    dollars and signed with the owner's name, was a good and valid order
    for the payment of money, and that you were the true owner of the
    cheque." 5. Mr Mead, who has appeared for the appellant before us, has argued that the sentences ought to have been suspended. He relies upon a number of factors, personal to the appellant. 6. The appellant is aged 24 years, and has no prior convictions. He cooperated with the police and was frank with them. He pleaded guilty to the charge. It is said that after his apprehension he gave some assistance to Mitsubishi to enable them to tighten up their system and minimise the risk of future thefts. 7. It appears that at the time of the commission of the offences, or at least of the offences of larceny of the motor car and false pretences, the appellant was suffering from a depressed condition in consequences of marital problems, and the psychiatric report suggests that those offences might be explained, at least to some extent, by desire for consumer goods as a way of coping with the depressed condition. The psychiatrist expressed the opinion that the appellant would not re-offend. 8. Mr Mead relied upon all those circumstances to submit that the learned judge's failure to suspend the sentence was a wrong exercise of discretion. The learned judge was well aware of the factors which have been stressed by Mr Mead, and he referred to most of them in a summary way in his remarks upon passing sentence. He said, however, after referring to a number of these factors: "I extend leniency to you on that account, but having regard to the number and seriousness of your crimes there is a limit to the extent to which your previous good character can mitigate the punishment". 9. His Honour referred to the seriousness of the crimes in the following way, he said:
    "Not only were these serious crimes which you committed,
    but also there were some aggravating factors present in each
    instance. There was a breach of trust in relation to your first
    crime, but I accept that many other employees in your sort of
    position have been tempted to do as you did. There was a degree of
    arrogance and certainly selfishness associated with the theft of the
    expensive motor car. There was premeditation and the confidence of
    the con man in the commission of the two crimes of fraud." 10. He exercised his discretion on a basis which he expressed as follows: "Having regard to the number and seriousness of your crimes, and notwithstanding the personal circumstances that go to your credit or mitigate your culpability, I have reached the conclusion that good reason does not exist for directing that your sentences be suspended". 11. The factors relied upon by Mr Mead are, of course, important, and courts are always reluctant to send to prison a person who appears before the court on criminal charges for the first time. But that is not the only consideration which is to be taken into account, and the rehabilitation of the offender, must in some cases give way to the other purposes of punishment, namely, the necessity of observing a proper proportion between the offending and the punishment, and the deterrence both of the offender himself, and of the public generally, from committing crime. 12. There were, as the learned sentencing judge pointed out, serious aspects of these crimes. I would add to what his Honour said in the remarks on passing sentencing, the following observations: 13. The offence of larceny as a servant related to goods which had been stolen over a period of 12 to 18 months. This was not a case of an impulsive theft committed, and then regretted. The appellant persisted in stealing. The goods were of no small value and quite obviously there would have been some element of planning involved in getting them out of the plant undetected. 14. The theft of the motor car was, also, by no means a merely impulsive theft. The appellant went to a football ground in a taxi, without his own car, and there broke in to a car, which had some special features about it, and stole it. Having stolen it, he made alterations to it. He changed the registration disc and number plate and also the compliance plate, and he persisted in retaining and using the car for a period of 18 days, or thereabouts, before the car was located as a result of the persistent and unremitting efforts of the owner's wife. 15. The offences of obtaining property by false pretences involve property of substantial value, and were the result of a deliberate decision to take the opportunity presented by the fact that there was a cheque book in the car which had been stolen. I think that the learned Judge was justified in using the expression which he used about those offences, namely, that there was the "element of premeditation and the confidence of a con man in relation to the commission of those offences". 16. The learned sentencing judge was justified, in my opinion, in taking all those matters into account, as countervailing considerations to those which favour suspension arising out of the personal circumstances and antecedents of the appellant. 17. It may be that the learned judge would have been justified in suspending but it was his discretion to exercise. This court will only interfere if it can be shown that the sentencing judge has acted upon a wrong principle, or has taken matters into account which ought not to have been taken into account, or excluded from consideration matters which ought to have been considered. I can find none of those factors present in the present case. It seems to me that there were ample grounds upon which the judge could justifiably decline to suspend the sentence, and there would be no justification for this court interfering with his exercise of discretion. 18. Mr Mead also argued that the total sentence was excessive, and that the judge should not have accumulated the sentences to the extent which he did. These were all distinct crimes, and each merited distinct and separate punishment. In logic, the judge would have been amply justified in making all the sentences cumulative. He, quite properly, however, had regard to what is called the principle total of totality, namely, that the total punishment imposed upon a person on a single appearance before the court, ought not be of a crushing character. That is particularly so where, as in the present case, the offender is before the court for the first time. 19. But it seems to me that the total punishment of 21 months' imprisonment, with a non-parole period of 12 months, quite reasonably reflects the degree of criminality involved in the total offending, and quite reasonably reflects the fact that this offender was before the court for the first time. I see no reason to fault the way in which the learned sentencing judge has fashioned the sentence, nor in the total result which has been arrived at, and I would dismiss the appeal. Order of the court is appeal dismissed.

JUDGE2 COX J I agree, for the reasons that the Chief Justice has given.

JUDGE3 BOLLEN J I, too, agree.