Carter v The State of Western Australia [No 2]
[2015] WASCA 59
•20 MARCH 2015
CARTER -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2015] WASCA 59
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASCA 59 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:57/2014 | 21 NOVEMBER 2014 | |
| Coram: | BUSS JA MAZZA JA HALL J | 20/03/15 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Leave to adduce additional evidence in the appeal granted Leave to appeal on ground 2 granted Appeal allowed Sentencing decision of the primary judge set aside Appellant resentenced | ||
| B | |||
| PDF Version |
| Parties: | DEBRA LOUISE CARTER THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Appeal against sentence Appellant convicted on her plea of guilty of one count of stealing as a servant Sentence of 12 months' immediate imprisonment Whether the primary judge made material errors of fact Whether the primary judge made an error of law by failing to suspend the sentence of imprisonment |
Legislation: | Criminal Appeals Act 2004 (WA), s 31(4), s 40(1)(e) Criminal Code (WA), s 378(7) Sentencing Act 1995 (WA), s 6, s 7, s 8(1), s 39, s 76, s 81 |
Case References: | Bessell v The Queen (Unreported, WASCA, Library No 980199, 4 March 1998) Collins v The State of Western Australia [2007] WASCA 108 Dimanopoulos v The State of Western Australia [2011] WASCA 62 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Fogg v The State of Western Australia [2011] WASCA 11 Heaney v The State of Western Australia [No 2] [2013] WASCA 238 Hladin v The State of Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176 Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 R v Jeffree (Unreported, WASCA, Library No 980150, 13 February 1998) Reynolds v The State of Western Australia [2010] WASCA 60 Skipworth v The State of Western Australia [2008] WASCA 64 Smallbone v The State of Western Australia [2008] WASCA 167; (2008) 187 A Crim R 57 The State of Western Australia v Hyder [2011] WASCA 256 Wheeler v The Queen [No 2] [2010] WASCA 105 Zande v The State of Western Australia [2012] WASCA 100; (2012) 221 A Crim R 123 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CARTER -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2015] WASCA 59 CORAM : BUSS JA
- MAZZA JA
HALL J
- Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : O'NEAL DCJ
File No : IND 1246 of 2013
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted on her plea of guilty of one count of stealing as a servant - Sentence of 12 months' immediate imprisonment - Whether the primary judge made material errors of fact - Whether the primary judge made an error of law by failing to suspend the sentence of imprisonment
Legislation:
Criminal Appeals Act 2004 (WA), s 31(4), s 40(1)(e)
Criminal Code (WA), s 378(7)
Sentencing Act 1995 (WA), s 6, s 7, s 8(1), s 39, s 76, s 81
Result:
Leave to adduce additional evidence in the appeal granted
Leave to appeal on ground 2 granted
Appeal allowed
Sentencing decision of the primary judge set aside
Appellant resentenced
Category: B
Representation:
Counsel:
Appellant : Ms M R Barone & Mr N J Terry
Respondent : Ms A C Longden
Solicitors:
Appellant : Barone Criminal Lawyers
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bessell v The Queen (Unreported, WASCA, Library No 980199, 4 March 1998)
Collins v The State of Western Australia [2007] WASCA 108
Dimanopoulos v The State of Western Australia [2011] WASCA 62
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Fogg v The State of Western Australia [2011] WASCA 11
Heaney v The State of Western Australia [No 2] [2013] WASCA 238
Hladin v The State of Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
R v Jeffree (Unreported, WASCA, Library No 980150, 13 February 1998)
Reynolds v The State of Western Australia [2010] WASCA 60
Skipworth v The State of Western Australia [2008] WASCA 64
Smallbone v The State of Western Australia [2008] WASCA 167; (2008) 187 A Crim R 57
The State of Western Australia v Hyder [2011] WASCA 256
Wheeler v The Queen [No 2] [2010] WASCA 105
Zande v The State of Western Australia [2012] WASCA 100; (2012) 221 A Crim R 123
1 BUSS JA: This is an appeal against sentence.
2 The appellant was convicted, on her plea of guilty in the District Court, of one count in an indictment.
3 The count alleged that between 27 April 2013 and 29 July 2013, at Waikiki, the appellant, being a servant of Patricia Collings as trustee for the PJ Collings Family Trust trading as Charterhouse News, stole scratchcards to the value of $17,647, the property of Ms Collings and being the amount of a general deficiency, contrary to s 378(7) of the Criminal Code (WA) (the Code).
4 On 6 February 2014, O'Neal DCJ sentenced the appellant to a term of 12 months' imprisonment, to be served immediately.
5 On 7 April 2014, the appellant filed her appeal notice. She has been granted an extension of time to appeal.
6 On 1 May 2014, Mazza JA granted the appellant bail pending the determination of the appeal.
The facts and circumstances of the offending
7 Between 14 February 2012 and 28 July 2013 the appellant was employed on a part-time basis at Charterhouse News in Waikiki. She had worked at Charterhouse News when she was younger.
8 Between 28 April 2013 and 28 July 2013 the appellant took possession of scratchcards, the property of the owner of Charterhouse News, to the value of $17,647. The appellant either scratched the scratchcards in the store or took the scratchcards from the store and scratched them at her home. The appellant took money from the cash register at the store for the prize money on the 'winning' scratchcards. She discarded the 'losing ' scratchcards.
9 The appellant's offending was discovered after the owner of the business identified discrepancies following an audit. The owner carried out the audit because of a serious reduction in the income being generated by the business. The reduction was attributable to the appellant's offending.
10 At the sentencing hearing defence counsel submitted that the appellant had used money she obtained on account of the 'winning' scratchcards for the purpose of repaying 'a large number of debts of a personal nature', including amounts she owed to electric power and gas utilities, Homeswest and a mobile telephone carrier (ts 18). The State did not contest that submission. Indeed, the prosecutor said that it 'really seems that the compulsion was greed to meet the debts that she'd accumulated' (ts 23).
The course of the sentencing hearing
11 At the sentencing hearing the primary judge informed defence counsel (who was not counsel for the appellant in the appeal) that he might be reluctant to accept, at face value, matters of mitigation because the appellant had shown a capacity for dishonesty and had not provided corroboration of those matters when it was sought (ts 10).
12 Defence counsel said he had advised the appellant that 'there was a need to get materials to [him] in an appropriate manner', including 'medical confirmation of various matters', but that had 'not been forthcoming' (ts 12).
13 Defence counsel sought an adjournment of the sentencing hearing to enable him to examine the possibility of obtaining documents relating to the medical condition of the appellant's son, the appellant's self-referral to a psychological and treatment centre, her employment and her capacity to make restitution (ts 13 - 15).
14 His Honour adjourned the sentencing hearing until later in his daily list to enable defence counsel to confer with the prosecutor about how the case should proceed (ts 15).
15 Defence counsel was unable to obtain any further documents relating to the matters he had raised. As to the medical condition of the appellant's son, defence counsel told the primary judge that he had spoken to the receptionist at a medical practice who had confirmed that the son had been referred to a specialist, but had not provided any other details (ts 17).
16 Defence counsel proceeded to make submissions and the sentencing hearing was completed without the further documents (ts 17).
The expert reports and the appellant's personal circumstances and antecedents
17 The information before the primary judge included a psychological report dated 19 November 2013 from Daniela Barbuzza, a clinical psychologist, and a pre-sentence report dated 3 December 2013.
18 The appellant was born on 22 February 1991. She was aged 22 at the time of the offending and when sentenced.
19 The appellant has a son who was born on 4 November 2010. He was aged 2 at the time of the offending and was aged 3 when the appellant was sentenced.
20 At the time of the offending, and when sentenced, the appellant's marital status was single. She was not in a personal relationship.
21 The appellant's early life was disrupted by the separation of her parents. She was raised in a fragmented family. The appellant appears to have been physically abused as a child. She did not disclose this abuse to anyone until her mother noticed symptoms of it.
22 Since childhood the appellant has presented an external facade of coping. She has developed a tendency to attempt to deal with problems on her own without asking for assistance. As a result, her stress and anxiety levels have escalated. More recently, her stress and anxiety have been exacerbated by concerns about whether her son has autism.
23 The appellant has poor self-esteem. Since the age of 12 she has engaged in some self-harm behaviour. More recently, this behaviour has increased in severity and frequency. At the time of the offending the appellant had a gambling addiction that was manifested in her attachment to and preoccupation with scratchcards.
24 The appellant completed year 12 at school. She commenced a two-year chef's apprenticeship course after leaving school. However, she ceased her training after 18 months when the restaurant at which she was employed closed. At about that time she became pregnant. The appellant commenced working again at Charterhouse News about six months after her son was born.
25 The appellant drinks alcohol occasionally on a social basis. She has never used any illicit drugs.
26 The appellant does not have a prior criminal record.
27 Ms Barbuzza said in her report that the appellant was 'pleasant and cooperative throughout the entire interview process including the psychometric testing procedure'. The appellant responded to all of Ms Barbuzza's questions and elaborated when asked to do so. The psychometric testing disclosed clinically significant elevations on the dependent and anxiety scales. These results are typical of individuals who may lack autonomy and look to others for direction, and also of individuals who may experience anxiety. The results of the psychometric testing were consistent with the appellant's presentation during the interview process with Ms Barbuzza.
28 Ms Barbuzza made the following recommendation in her report:
It is recommended that [the appellant] engages in treatment to develop more effective ways of dealing with her stress and anxiety and to learn how to ask others for help, rather than maintaining her external façade of coping, particularly in times of acute stress. Medication may be able to play a role in managing her anxiety levels, and in turn decreasing her risk of engaging in destructive behaviours (eg gambling, burning herself in hot showers), and this needs to be determined by a medical professional. It is promising to note that she seems keen to address her problems and has voluntarily initiated contact with a service provider to assist with her gambling behaviour.
29 The author of the pre-sentence report said:
[The appellant] reports she is employed on a part-time basis and is in receipt of a limited income from both her employment and Centrelink benefits. She expressed remorse, guilt and embarrassment in regards [sic] to her offending behaviour and does not have a previous offending history.
During the interview process, [the appellant] described her offending behaviour as 'gambling' and candidly admitted that she is struggling to avoid obtaining 'scratchies' in the hope that she would 'win big' to solve her financial issues.
[The appellant] expressed motivation to address her offending behaviour and personal issues. [The appellant] has initiated contact with the South West Coastal Women's Health Service and has a triage appointment on 13/12/13. This service may assist [the appellant] in addressing an extensive range of contributing factors to her offending behaviour as well as offering personal support by professionals … [The appellant] has also agreed that financial counselling may be of assistance to improve her budgeting skills.
30 Prior to sentencing the appellant participated in victim-offender mediation. She wrote a letter of apology dated 22 October 2013 to the owner of the newsagency business.
The primary judge's sentencing remarks
31 The primary judge noted the following aggravating features:
(a) The appellant's offending was persistent and repeated, and was carried on for many months (ts 25).
(b) The offending only ceased when the appellant's employment was terminated because of the financial difficulties her offending had caused the business (ts 25).
(c) The appellant was a trusted employee (ts 25).
(d) The appellant's offending had significant adverse consequences for the owner of the business (ts 25 - 26).
(e) The appellant's offending caused a fellow employee to lose his employment (ts 25).
32 His Honour accepted that the appellant's offending was mitigated by the following factors:
(a) The appellant's fast-track plea of guilty (ts 24 - 25, 28).
(b) The appellant's good personal antecedents including her youth and the absence of a prior criminal record (ts 29).
(c) The steps taken by the appellant towards rehabilitation including by seeking assistance for her gambling behaviour (ts 29).
(d) The appellant's cooperation to some extent with police during a video-recorded interview (ts 28 - 29).
(e) After mediation, the appellant's gesture towards restitution by repaying $430 (ts 26, 29).
33 The primary judge was not satisfied that the appellant had shown significant remorse because she appeared to be 'remarkably cheerful and unconcerned' during her video-recorded interview with police, and she attempted during the interview to 'minimise the extent of [her] offending at every opportunity' (ts 28 - 29).
34 His Honour decided that it was not appropriate to suspend the term of imprisonment because of the appellant's 'betrayal' of her employer and the consequences of her offending for the employer and others (ts 30 - 31). His Honour had mentioned earlier in his sentencing remarks that, as a result of the offending:
(a) the business was nearly '[brought] to its knees' (ts 25); and
(b) the employer had been caused 'terrible harm' in the form of worry, anxiety, stress and financial hardship (ts 25 - 26), and it was necessary for her:
(i) to borrow $23,000, which was added to her mortgage (ts 25); and
(ii) to inform her parents that they faced losing their home because of the security they had given for her borrowings (ts 25).
35 The primary judge appears to have been influenced in his sentencing disposition by the absence of relevant documents supporting a number of submissions advanced by defence counsel. In particular, his Honour said:
(a) 'The community corrections officer asked you to provide any documentation that could confirm the information related to your son … You didn't provide any. Your counsel obviously advised you of the prudence of offering such proof if it existed. You didn't give it to him' (ts 27).
(b) '[G]iven this pattern of dishonesty on your part, I have a great deal of difficulty in accepting at face value things said by you that aren't substantiated by other evidence that I do accept' (ts 27).
(c) 'You didn't provide proof of employment, although it was requested. It is very, very difficult to pin down anything you say' (ts 28).
(d) 'You said that you're keen to address these problems [stress and difficulty in coping with daily pressures] and I'm told that you have voluntarily initiated contact with a service provider to assist you with your gambling behaviour. And, as I say, I really don't know what to conclude about what you say about what you have done and what you're going to do' (ts 28).
(e) 'There is no submission made here that there is anything particularly exceptional about the circumstances relating to the care of your child' (ts 29).
The grounds of appeal
36 The appellant relies on four grounds of appeal.
37 Ground 1 alleges that the primary judge erred in fact by sentencing the appellant on the basis that the count in the indictment represented 'a general deficiency over a period of about 15 months', which was contrary to the charge as pleaded in the indictment and contrary to the State's case at sentencing.
38 Ground 2 alleges that his Honour erred in fact by finding that during the video-recorded interview the appellant appeared:
(a) remarkably cheerful and unconcerned; and
(b) to minimise the extent of her offending at every opportunity,
when those findings were not open 'on an objective viewing' of the video-recorded interview.
39 Ground 3 alleges that his Honour erred in law by imposing a sentence that was manifestly excessive in that:
(a) the wrong type of sentence was imposed because the sentence of imprisonment should have been suspended; alternatively,
(b) the length of the sentence was 'manifestly too long in all of the circumstances'.
40 Ground 4 alleges that there was a substantial miscarriage of justice at the sentencing hearing in that defence counsel did not apply for an adjournment to obtain relevant information which, if presented, would have resulted in a different sentence.
41 On 20 June 2014, Mazza JA granted leave to appeal on grounds 1 and 3 and referred the application for leave to appeal on grounds 2 and 4 to the hearing of the appeal.
The application in the appeal to adduce additional evidence
42 The appellant has made application in the appeal for leave to adduce additional evidence.
43 The additional evidence is contained in an affidavit of the appellant sworn 12 June 2014.
44 On 20 June 2014, Mazza JA referred the application for leave to adduce additional evidence to the hearing of the appeal.
45 The documents annexed to the appellant's affidavit comprise:
(a) email correspondence dated 3 December 2013 between the appellant and Melanie Hopkins, a community corrections officer;
(b) a letter dated 9 June 2014 from Leath Marshall, a speech pathologist;
(c) a report dated 29 July 2013 from Ms Marshall; and
(d) a report dated 27 August 2013 from Tamika Harris, a speech pathologist.
46 The additional evidence is 'new' as distinct from 'fresh' evidence.
47 In Wheeler v The Queen [No 2] [2010] WASCA 105, McLure P (at [3]) and Owen JA (at [52] - [53]) decided that the test to be applied in determining whether additional evidence should be admitted under s 40(1)(e) of the Criminal Appeals Act 2004 (WA) in an appeal against sentence correlates with the requirement in s 31(4) of that Act that this court may allow the appeal if, in its opinion, a different sentence should have been imposed. Owen JA referred to the distinction between 'fresh' and 'new' evidence in the context of this court's power under s 40(1)(e), and said that the distinction is of lesser significance in an appeal against sentence than in an appeal against conviction, but the court may be guided by similar considerations [53].
48 In The State of Western Australia v Hyder [2011] WASCA 256, this court allowed a State appeal against sentence. McLure P (Buss JA & Mazza JA agreeing) noted [25]:
Generally, an appeal court must decide an appeal on the evidence and material before the primary court: s 39(1) of the Criminal Appeals Act 2004 (WA) (the Act). However, it has a broad power to admit other evidence under s 40(1)(e) of the Act: Wheeler v The Queen[No 2] [2010] WASCA 105 [52] (Owen JA). The general test to be applied in determining whether additional evidence should be admitted is whether, had the evidence been before the sentencing judge, a different sentence should have been imposed: Wheeler [3], [53].
49 As to the email correspondence dated 3 December 2013 between the appellant and Ms Hopkins:
(a) Ms Hopkins was the author of the pre-sentence report dated 3 December 2013.
(b) In the report Ms Hopkins said:
Given [the appellant] attributed her offending to financial issues, her current financial situation was explored. [The appellant] reported her weekly income as approximately $480.00 from her employment at a large food retailer, a Centrelink Parenting benefit of $150.00 and $30.00 in child support. Recently, she has been required to relocate due to the high price of rent and is currently residing at her grandmother's home for $300.00 per week. Her grandmother is not residing at the address. [The appellant] was requested to provide proof of employment; however, this is yet to be received.
(c) The primary judge stated in the course of his sentencing remarks:
You told the community corrections officer that you're now working at a large food retailer with a weekly income of about $480. You also receive a Centrelink parenting benefit of $150 and $30 in child support. You didn't provide proof of employment, although it was requested. It is very, very difficult to pin down anything that you say (ts 28).
(d) In the email correspondence dated 3 December 2013 the appellant attached payslips from her employer. Copies of the payslips were sent to Ms Hopkins on the date of the pre-sentence report. It appears Ms Hopkins did not receive the payslips until after she had signed the report.
50 As to the letter dated 9 June 2014 from Ms Marshall:
(a) During her video-recorded interview with police, the appellant referred to a specific occasion on which she had stolen a relatively large sum of money ($560) in order to pay for a medical appointment, which she was told would cost about $450, to ascertain whether her son was autistic (VROI 36 - 37).
(b) The letter dated 9 June 2014 stated that on 29 July 2013 the appellant's son attended at Ms Marshall's practice for 'initial speech and language skills assessments' and that the fee for the assessment and a written report was $250.
51 The report dated 29 July 2013 from Ms Marshall concluded that the appellant's son presented with behaviours of concern which were thought to be consistent with autism spectrum disorder.
52 The report dated 27 August 2013 from Ms Harris stated that the appellant's son was to:
(a) receive speech pathology support 'to communication intent, language and play' [sic];
(b) visit a psychologist 'to investigate cognitive functioning and behaviours'; and
(c) be further assessed by a paediatrician 'to overview his development and behaviours, to determine if a diagnosis is appropriate'.
53 In my opinion, this court should admit the additional evidence in the appeal pursuant to s 40(1)(e) of the Criminal Appeals Act. The new evidence was relevant to the appellant's sentencing because her explanation for the offending, given to the police and to the authors of the psychological report and the pre-sentence report, was that she was under financial and emotional stress, including in relation to her son's suspected autism.
54 The absence of the new evidence, combined with the primary judge's adverse impression of the appellant's attitude and demeanour during the video-recorded interview with police, had a materially detrimental impact upon:
(a) his Honour's view of the appellant's credibility; and
(b) the weight his Honour ultimately gave to remorse, the explanation for her offending and the positive views about her in the psychological report and the pre-sentence report.
55 If the additional evidence had been before the primary judge, and his Honour had not made the errors I identify in the course of considering grounds 1 and 2, a different sentence should have been imposed. It is in the interests of justice to admit the additional evidence.
The merits of ground 1
56 The indictment pleaded that the offending occurred between 27 April 2013 and 29 July 2013; that is, during a period of about three months.
57 The State alleged in its written submissions at the sentencing hearing that 'although the [appellant] is charged with only one count, her offending occurred over a period of three months and involved multiple instances of theft'.
58 The primary judge commenced his sentencing remarks with the following observations:
You've been convicted of the offence of stealing as a servant on your fast track plea of guilty. The single offence that you've been charged with represents a general deficiency over a period of about 15 months, during which you stole repeatedly, only stopping when you finally lost your employment (ts 24 - 25). (emphasis added)
59 It is plain that his Honour made an error of fact in that the offending occurred over a period of about three months, and not over a period of about 15 months. A little later in his remarks, his Honour in effect repeated the error by stating that the offending had been carried on for 'many months' (ts 25).
60 I am satisfied that the error in question was material in that an offence of stealing as a servant which involves repeated theft over a period of about 15 months will ordinarily be more serious than an otherwise comparable offence over a period of about three months.
61 Ground 1 has been made out.
The merits of ground 2
62 I have watched the appellant's video-recorded interview with police.
63 As to the primary judge's comment that the appellant appeared 'remarkably cheerful and unconcerned' during the interview:
(a) At the beginning of the interview the appellant was visibly distressed.
(b) The appellant's demeanour improved significantly when speaking with the police officers about the procedures at Charterhouse News in relation to the scratchcards.
(c) At times during the interview the appellant laughed or giggled and appeared to be light-hearted.
(d) Later, when confronted about the seriousness of her offending, the appellant was again visibly distressed.
64 My impression of the appellant from the video-recorded interview, considered as a whole, is that his Honour's comment was, with respect, harsh. It is not unusual for people to appear light-hearted as a result of anxiety, stress and an unfamiliar environment. In my opinion it was not reasonably open to his Honour to find, adversely to the appellant, that she appeared to be 'remarkably cheerful and unconcerned' during the interview and to use that finding, in part, to support his conclusion that the appellant had not demonstrated significant remorse.
65 As to the primary judge's comment that the appellant appeared 'to minimise the extent of her offending at every opportunity' during the interview, I am satisfied that the appellant did in fact endeavour to minimise the extent of her offending.
66 Ground 2 has been made out in part.
The merits of ground 3
67 A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
68 The discretion conferred on sentencing judges is, of course, of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. See Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby, Hayne & Callinan JJ).
69 In Western Australia, the statutory sentencing principles are set out in pt 2 of the Sentencing Act 1995 (WA). By s 6(1), a sentence imposed on an offender must be commensurate with the seriousness of the offence. This is a fundamental sentencing principle. Section 6(2) provides that the seriousness of an offence must be determined by taking into account the statutory penalty for the offence (par (a)); the circumstances of the commission of the offence, including the vulnerability of any victim of the offence (par (b)); any aggravating factors (par (c)); and any mitigating factors (par (d)). By s 7(1), aggravating factors are those factors which, in the court's opinion, increase the culpability of the offender. Section 7(2) provides that an offence is not aggravated by the fact that the offender pleaded not guilty to it (par (a)); the offender has a criminal record (par (b)); or a previous sentence has not achieved the purpose for which it was imposed (par (c)). By s 8(1), mitigating factors are those factors which, in the court's opinion, decrease the culpability of the offender or decrease the extent to which the offender should be punished.
70 The maximum penalty for the offence of stealing as a servant, contrary to s 378(7) of the Code, is 10 years' imprisonment.
71 As McLure P (Buss JA agreeing) noted in Dimanopoulos v The State of Western Australia [2011] WASCA 62, the offence of stealing as a servant is serious in that it involves the abuse of a position of trust [19]. Consequently, significant weight is ordinarily accorded to general deterrence with a related reduction in the weight ordinarily given to personal circumstances and antecedents. The appropriate penalty is ordinarily, as a matter of fact, a term of imprisonment to be served immediately, especially where the total amount stolen is substantial and involves multiple offences.
72 However, the sentence to be imposed in a particular case ultimately depends on its individual facts and circumstances, after having regard to the maximum penalty. Previous decisions in relation to stealing as a servant may provide only limited assistance in some cases because of the very wide variety of circumstances in which offences of this kind are committed. See Reynolds v The State of Western Australia [2010] WASCA 60 [10] (McLure P, Owen & Newnes JJA agreeing). It is important, nevertheless, in deciding whether a particular sentence is manifestly excessive, to appreciate what sentences are customarily imposed in cases involving similar offending, for the purpose of ensuring broad consistency.
73 I have examined numerous cases with at least some features comparable to the appellant's offending including R v Jeffree (Unreported, WASCA, Library No 980150, 13 February 1998); Bessell v The Queen (Unreported, WASCA, Library No 980199, 4 March 1998); Hladin v The State of Western Australia [2005] WASCA 50; (2005) 156 A Crim R 176; Collins v The State of Western Australia [2007] WASCA 108; Smallbone v The State of Western Australia [2008] WASCA 167; (2008) 187 A Crim R 57; Reynolds; Dimanopoulos; Zande v The State of Western Australia [2012] WASCA 100; (2012) 221 A Crim R 123; Heaney v The State of Western Australia [No 2] [2013] WASCA 238. It is unnecessary to reproduce the facts and circumstances of or the sentences imposed in those cases.
74 By s 6(4) of the Sentencing Act:
A court must not impose a sentence of imprisonment on an offender unless it decides that -
(a) the seriousness of the offence is such that only imprisonment can be justified; or
(b) the protection of the community requires it.
75 Section 76 of the Sentencing Act provides, relevantly:
(1) A court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the whole of the term or terms be suspended for a period set by the court; but not more than 24 months.
(2) Suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.
76 Similarly, s 81(1) of the Sentencing Act provides that a prescribed court that sentences an offender to a term of imprisonment, or to an aggregate of terms of imprisonment, of 60 months or less may order that the whole of the term or terms be suspended for a period set by the court, but not more than 24 months, subject to certain conditions. Section 81(2) provides that conditional suspended imprisonment is not to be imposed unless imprisonment for a term or terms equal to that suspended would, if it were not possible to suspend imprisonment, be appropriate in all the circumstances.
77 The limit of 5 years specified in s 76(1) and s 81(1) reflects Parliament's view that if an offender is sentenced to a term of imprisonment, or to an aggregate of terms of imprisonment, in excess of the specified limit, the offending will be of an order of seriousness which precludes suspension or conditional suspension.
78 The limit of 5 years also reflects Parliament's view that a term of imprisonment, or an aggregate of terms of imprisonment, may appropriately be suspended even though the offender has committed an offence or offences that are of sufficient seriousness as to warrant a sentence or total sentence of 5 years' imprisonment.
79 A court must not impose a term of immediate imprisonment unless satisfied, having regard to the sentencing principles set out in div 1 of pt 2 of the Sentencing Act, that it is not appropriate to impose suspended or conditional suspended imprisonment. See s 39(2) and s 39(3).
80 The sentencing judge must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately. In a borderline case, it may be reasonably open to impose different types of sentences. See Skipworth v The State of Western Australia [2008] WASCA 64 [11], [13] - [14] (McLure JA); Fogg v The State of Western Australia [2011] WASCA 11 [9] (McLure P, Mazza J agreeing).
81 The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation. See Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [18] (Gleeson CJ & Hayne J), [26] (Gaudron & Gummow JJ), [84] (Kirby J). The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation. See Dinsdale [86].
82 The merits of ground 3 must be evaluated in the context of the additional evidence that should be admitted in the appeal and the primary judge's errors that I have identified in the course of considering grounds 1 and 2.
83 As I have mentioned, the absence of the additional evidence, combined with his Honour's adverse impression of the appellant's attitude and demeanour during the video-recorded interview with police, had a materially detrimental impact upon:
(a) his Honour's view of the appellant's credibility; and
(b) the weight his Honour ultimately gave to remorse, the explanation for her offending and the positive views about her in the psychological report and the pre-sentence report.
84 In the present case, after taking into account:
(a) the maximum penalty for the offence;
(b) the serious nature of the offence of stealing as a servant;
(c) the objective facts and circumstances of the appellant's offending, including that the offending occurred over a period of about three months and was not sophisticated or well-planned;
(d) the vulnerability of the victim;
(e) the seriously adverse consequences for the victim, other members of her family and the employee who was retrenched;
(f) the standards of sentencing customarily observed;
(g) the appellant's culpability, which was at the lower end of the scale of seriousness of offences of this kind;
(h) the appellant's plea of guilty at the first reasonable opportunity;
(i) the appellant's relative youth;
(j) the appellant's significant emotional and psychological problems as revealed in Ms Barbuzza's report;
(k) the appellant's limited cooperation with police during the video-recorded interview, and her full cooperation with Ms Barbuzza during the interview process including the psychometric testing procedure;
(l) the appellant's attempt, within her modest means, to make some restitution;
(m) the steps taken by the appellant towards rehabilitation, namely her efforts to seek treatment for her emotional and psychological difficulties, including her gambling behaviour;
(n) the appellant's good personal antecedents, including the absence of any prior convictions;
(o) personal and general deterrence as sentencing factors; and
(p) all other relevant sentencing factors,
I am satisfied that, although a sentence of 12 months' imprisonment was within the range open to his Honour on a proper exercise of his discretion, a term of imprisonment to be served immediately was not the only appropriate sentencing option.
85 In my opinion, it was not reasonably open to the primary judge to decide that immediate imprisonment was the only appropriate sentencing option.
86 Ground 3 has been made out.
The merits of ground 4
87 It is unnecessary to deal with ground 4.
The outcome of the appeal and the resentencing of the appellant
88 I would grant leave to appeal on ground 2 and allow the appeal.
89 The primary judge's sentencing decision should be set aside. This court has the material necessary to resentence the appellant.
90 The relevant material includes an affidavit sworn by the appellant on 17 November 2014 in relation to events which have occurred since the original sentencing hearing. The appellant deposes that:
(a) she has now made restitution to the owner of Charterhouse News in the total sum of $1,300;
(b) she intends to continue making payments until the whole of the victim's loss has been repaid;
(c) since the appellant was released on bail, pending the determination of the appeal, she has taken her son for assessments regarding his suspected autism; and
(d) her son has now been diagnosed with autism and accompanying marked speech and language delay.
91 The appellant annexed to her affidavit a letter dated 18 September 2014 from a paediatrician; an undated letter relating to an assessment on 26 August 2014 from a speech pathologist; and an undated report relating to assessments conducted on 30 July 2014 and 13 August 2014 from a psychologist. These documents confirm the appellant's evidence in relation to her son's condition.
92 The appellant has served about 3 months in custody (between 6 February 2014 and 1 May 2014) for the offending in question.
93 In my opinion, this court should impose a term of imprisonment of 9 months, and this term should be suspended under s 76(1) of the Sentencing Act for a period of 9 months commencing on the date on which the appellant is resentenced.
94 MAZZA JA: I agree with Buss JA.
95 HALL J: I agree with Buss JA.
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