Bright v Police

Case [2008] SASC 220

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

BRIGHT v POLICE

[2008] SASC 220

Judgment of The Honourable Justice Gray

11 August 2008

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - MISCELLANEOUS MATTERS - REPARATION AND RESTITUTION BY OFFENDER

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - PURPOSE OF SENTENCE - REHABILITATION

Defendant pleaded guilty to four counts of taking property without the consent of the owner, the Commonwealth Bank - defendant was head teller and supervisor of other tellers at the Bank - defendant committed the offences to finance a gambling addiction - defendant made full restitution to the Bank - defendant has made genuine efforts to rehabilitate and has made good progress in that regard - Magistrate sentenced defendant to 12 months’ imprisonment, reduced to nine months by reason of the defendant’s early guilty plea - Magistrate ordered that the defendant serve a period of four months of the nine months’ imprisonment, and that the balance of five months be suspended upon the defendant entering into a bond to be of good behaviour - whether the imposition of an immediate custodial term was manifestly excessive - whether the Magistrate gave full effect to the making of restitution - whether Magistrate erred in characterising the defendant’s conduct as involving two breaches of trust: one, involving the bank, and the other to junior employees - whether the Magistrate took sufficient account of the defendant’s prospects for rehabilitation.

Held (allowing the appeal): full effect was not given to the restitution made by the defendant - the Magistrate erred in sentencing the defendant on the basis of a double breach of trust - the Magistrate did not take sufficient account of the defendant’s prospects for rehabilitation - sentence imposed by the Magistrates Court set aside - defendant re-sentenced to a term of imprisonment of nine months - that sentence is suspended on the defendant’s entry into a supervised three-year good behaviour bond.

Criminal Law Consolidation Act 1935 (SA) s 134(1); Criminal Law (Sentencing) Act 1988 (SA) s 10, s 18A and s 38, referred to.
The Queen v Robertson (1984) 115 LSJS 51; Matulich v Police [2007] SASC 440; Kovacevic v Mills (2000) 76 SASR 404; SA Police v John (1995) 181 LSJS 20; R v O’Keefe (1992) 60 A Crim R 201; R v Allen [2005] QCA 73; R v Barrick 81 Cr App R 78 at 81; Birch v The Queen (1993) 69 A Crim R 181; R v Carreras (1992) 60 A Crim R 402; R v Mooney (unreported, VCCA, 21 June 1978); R v Scognamiglio (1991) 56 A Crim R 81; R v Arnold (1991) 56 A Crim R 63 at 72; R v Harland-White (unreported, VCCA, 271 of 1993, 10 May 1994); R v Kevich (unreported, VCCA, 25 November 1977); R v Halewyn (1984) 12 A Crim R…

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AGLC
Bright v Police [2008] SASC 220
Case
[2008] SASC 220
Decision Date

CaseChat Overview and Summary

The case of Bright v Police involves Karin Leah Bright, who pleaded guilty to four counts of taking property without the consent of the owner, the Commonwealth Bank. Bright was the head teller and supervisor of other tellers at the bank, and she misappropriated a total of $21,500 from the bank’s floating balance of cash between January and September 2007. The Magistrate sentenced Bright to nine months’ imprisonment, reduced from twelve months due to an early guilty plea, and ordered that she serve four months in prison with the remaining five months suspended upon entering a good behaviour bond. Bright appealed the sentence, arguing that the Magistrate did not adequately consider the restitution she made, the breach of trust, and her prospects for rehabilitation.

The key legal issues in the appeal were whether the immediate custodial term imposed was manifestly excessive, whether the Magistrate gave full effect to the restitution, whether the Magistrate erred in characterising the defendant’s conduct as involving two breaches of trust, and whether the Magistrate took sufficient account of the defendant’s prospects for rehabilitation. The Court held that the Magistrate did not give adequate weight to the restitution made by the defendant, placed too much weight on the breach of trust to her employer, and failed to give adequate weight to the significant steps taken by the defendant with respect to the rehabilitation of her gambling addiction. The Court concluded that the sentencing process miscarried and that the sentence imposed by the Magistrates Court should be set aside.

The Court allowed the appeal, set aside the sentence imposed by the Magistrates Court, and re-sentenced Bright to a term of imprisonment of nine months, which is to be suspended on her entry into a supervised three-year good behaviour bond. The Court considered Bright’s age, prior good character, prompt and full restitution, genuine contrition and remorse, and significant steps toward rehabilitation in determining the appropriate sentence. The Court emphasised that the sentence should reflect the seriousness of the crime while also allowing Bright to continue her treatment for her gambling addiction. The Court’s decision highlights the importance of considering all relevant factors in sentencing, including restitution, breach of trust, and prospects for rehabilitation.

Orders

Orders of the court

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Background

Background to the litigation

This is an appeal against sentence.Background The defendant and appellant, Karin Leah Bright, pleaded guilty to four counts of taking property without the consent of the owner, the Commonwealth Bank, contrary to section 134(1) of the Criminal Law Consolidation Act 1935 (SA).[1] The defendant was the head teller and supervisor of other tellers of the bank at Mount Gambier.[1] Section 134(1) of the Criminal Law Consolidation Act 1935 (SA) provides:A person is guilty of theft if the person deals with property—(a) dishonestly; and(b) without the owner's consent; and(c) intending—(i) to deprive the owner permanently of the property; or(ii) to make a serious encroachment on the owner's proprietary rights.Maximum penalty: Imprisonment for 10 years. Between January and September 2007, the defendant misappropriated the sum of $21,500 from the “floating balance of cash” secured at the bank. The defendant was the only person with a key to the secured area where the floating balance was stored. Bank procedure required that the defendant and another teller should count the money each day prior to placing it into the cash clearance bag, with the bag being signed by the defendant and the other teller at that time and then sealed. The defendant induced another teller, on at least three separate occasions, to pre-sign an empty cash clearance bag. The teller did so because she trusted the defendant and had known her for about 20 years. The defendant cut pieces of blank paper to the size of bank notes, and replaced removed bank notes within bundles of bank notes with blank paper, in order to deceive casual observers into thinking that the bundles were all bank notes. The cash was taken in tranches of $2,500 and $5,000, up to the total of $21,500. On 4 October 2007, the bank manager discovered a discrepancy, and conducted a thorough search of the bundles of bank notes. Initially, the defendant pretended that there was cash present in the bags, but once the misappropriation became obvious the defendant admitted that she was responsible. She told the bank manager that she had intended to replace the cash when a property sale was finalised. On 17 October 2007, the defendant made full restitution of the $21,500 to bank. The Magistrate sentenced the defendant on 23 April 2008 and imposed the one penalty for all offences, pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA),[2] of nine months’ imprisonment. In arriving at this sentence, the Magistrate made a reduction of three months by reason of the defendant’s early guilty plea. The Magistrate ordered, pursuant to section 38(2a) of the Criminal Law (Sentencing) Act,[3] that the defendant serve a period of four months of the nine months’ imprisonment, and that the balance of five months be suspended upon the defendant entering into a bond to be of good behaviour for a period of five months.[2] “If a person is found guilty by a court of a number of offences, the court may sentence the person to the one penalty for all or some of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates.”[3] Section 38(2a) of the Criminal Law (Sentencing) Act 1988 (SA) provides: “(2a)However, if the period of imprisonment to which a defendant is liable under one or more sentences is more than three months but less than one year, the sentencing court may, by order— (a)direct that the defendant serve a specified period (being not less than one month) of the imprisonment in prison; and (b) suspend the remainder on condition that the defendant enter into a bond of a kind described in subsection (1) that will have effect on the defendant's release from prison.”The Appeal

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Where a defendant has pleaded, or been found, guilty of an offence, and in sentencing submissions has submitted that his or her addiction or personality disorder is a relevant factor in sentencing, the sentence imposed by the court cannot be passed on a basis that is inconsistent with the conclusion that the defendant is criminally responsible for the crime.[24] However, as earlier observed, in my view the Magistrate failed to have adequate regard to the fact that the defendant’s progress in overcoming the major cause of her offending – her gambling addiction – has resulted in a substantially reduced need for deterrence when determining an appropriate sentence. The entering into a suspended term of imprisonment, on the entering into a good behaviour bond with appropriate conditions, will allow the defendant to continue her treatment toward recovery from her gambling addiction, while at the same time marking the seriousness of her crime.[24] R v Mooney (Unreported, Court of Criminal Appeal of Victoria, Young CJ, Lush and Jenkinson JJ, 21 June 1978).Conclusion The Magistrate did not give adequate weight to the restitution made by the defendant, placed too much weight on the defendant’s breach of trust to her employer and failed to give adequate weight to the significant steps taken by the defendant with respect to the rehabilitation of her gambling addiction. In my view the sentencing process miscarried. This Court should re-sentence the defendant. Having regard to the defendant’s age, her prior good character, the making of prompt and full restitution, her genuine contrition and remorse, and her significant and substantial steps toward rehabilitation, it is appropriate in the circumstances to wholly suspend the sentence of imprisonment that should be imposed for her serious criminal conduct. The head sentence fixed by the Magistrate was well within his sentencing discretion, and was a sentence that was appropriate. However, as observed, the sentence should be suspended on the defendant’s entry into a supervised, three-year good behaviour bond. I make the following orders. The appeal is allowed. The sentence imposed by the Magistrates Court is set aside. The defendant is to be re-sentenced to a term of imprisonment of nine months. That sentence is suspended on the defendant’s entry into a supervised three-year good behaviour bond.

Ratio Decidendi

Legal Principle Established

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