Dukes v Barrett - [2001] WASCA 338

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: DUKES -v- BARRETT [2001] WASCA 338

CORAM: HASLUCK J

HEARD: 10 OCTOBER 2001

DELIVERED : 2 NOVEMBER 2001

FILE NO/S: SJA 1111 of 2001

BETWEEN: CARLO DUKES
Appellant
AND
PAUL DAVID BARRETT
Respondent

Catchwords:

Criminal law - Sentencing - Stealing as a servant - Property of little value - A total of 12 months' imprisonment for various offences - Sentence held to be excessive

Legislation:

Criminal Code, s 378(7), s 426

Justices Act 1902, s 196, s 199
Official Prosecutions (Defendants Costs) Act 1973

Sentencing Act 1995, s 6, s 8(2), s 39, s 87

Result:

Appeal allowed in part

Category: B

Representation:

Counsel:

Appellant: Mr I D Fraser
Respondent: Ms S M De Maio

Solicitors:

Appellant: Laurie Levy
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Allen v Powell [2000] WASCA 65
Bacich v Illich [2000] WASCA 133
Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998
Dinsdale v The Queen (2000) 175 ALR 315
Etrelezis v The Queen [2001] WASCA 327
Lowndes v The Queen (1999) 195 CLR 665
Pain v Forbes [2000] WASCA 260
R v Barrick (1985) 81 Cr App R 78
R v Gallagher (1991) 23 NSWLR 220
R v Liddington (1997) 18 WAR 394
Radebe vThe Queen [2001] WASCA 254
Wilkinson (1996) 85 A Crim R 353

Case(s) also cited:

Birch (1993) 69 A Crim R 181
Little v The Queen [2001] WASCA 87
R v Thomson; R v Houlton (2000) 49 NSWLR 383

HASLUCK J: This is an appeal against sentence. The principal question is whether the learned Magistrate erred in imposing an immediate term of 12 months' imprisonment for various stealing offences.
The appellant was charged with 13 counts of stealing as a servant pursuant to s 378(7) of the Criminal Code. Six counts occurred on 27 May 2001 and seven on 28 May 2001. All counts occurred in the course of the appellant's work at BP Palm Springs. The amounts in question were small, ranging from $3.15, at the low end of the list, to $13.35, at the upper end of the list.
When the appellant appeared in the Rockingham Court of Petty Sessions on 26 June 2001, he entered pleas of guilty to all charges. It emerged from the statement of material facts that the appellant was rostered on nightshift at the BP service station Palm Springs. He failed to scan various items which were to be purchased with cash. The items not having been processed through the till, the appellant was able to take the relevant amounts from the till at a later time in his shift. The total amount stolen on Sunday, 27 May 2001, was $46.44. On the following night, he stole amounts amounting to $63.07.
The covert surveillance camera on the premises recorded the relevant events, with the result that shortly afterwards the appellant was interviewed at the Rockingham detectives' office, as a result of which he was charged with the offences.
The learned Magistrate adjourned the proceedings in order to receive a pre‑sentence report, whereupon the appellant was remanded in custody.
The appellant came before the court again on 3 July 2001 on which occasion the learned Magistrate received an oral pre‑sentence report. It appears from the transcript that the appellant was 32 years of age and had been in a de facto relationship for the past three years with a partner having two young children from a previous relationship. He had completed a plastering and tiling apprenticeship and was currently employed as a plasterer. He was said to be quite comfortable financially in that he had $11,000 in savings and owned a motor cycle and two cars worth $30,000. He had a juvenile record, some traffic offences, and a stealing conviction in 1988. The court was told, however, that the offender had no real issues to address and would not benefit from a community based order. It seemed that he did not think about the consequences of what he was doing.
In sentencing the offender, the learned Magistrate referred to the breach of the employer's trust and indicated that in her belief neither a fine nor a community based order was an appropriate penalty. She then sentenced the appellant to a term of 4 months' imprisonment in relation to each count, to be served immediately with provision for restitution. The sentence imposed in relation to counts 2 and 3 were made cumulative, to give a total of 12 months' imprisonment. The appellant was declared eligible for parole.
The appellant was granted leave to appeal on 15 August 2001, and two days later was released from custody on bail. He had previously been ordered to pay restitution in respect of the amount stolen.
Leave to appeal was granted upon three grounds. First, that the learned Magistrate imposed a sentence of imprisonment that was manifestly excessive in all the circumstances. The particulars in support of this ground were directed to the maximum penalty in respect of the offences, the appellant's antecedents, the amount the subject of the offences, the period over which the offences were committed and the appellant's plea of guilty.
The second ground was that the learned sentencing Magistrate erred in law, or alternatively in the exercise of her discretion, by failing to give sufficient weight to the appellant's plea of guilty.
The third ground was that the learned sentencing Magistrate erred in imposing a term of immediate imprisonment.
An issue arose on the hearing of the appeal as to what was the maximum penalty for stealing as a servant in the circumstances of the present case where the charge was dealt with summarily. Accordingly, it will be useful to look at the statutory provisions and respective submissions of the parties directed to that point.
Section 378 of the Criminal Code provides that any person who steals anything capable of being stolen is guilty of a crime, and is liable, if no other punishment is provided, to imprisonment for 7 years. The provision then goes on to deal with certain more specific forms of the offence of stealing under the hearing "Punishment in special cases". These special cases include the offence described in s 378(7) that if the offender is a clerk or servant, and the thing stolen is the property of his employer, or came into the possession of the offender on account of his employer, he is liable to imprisonment for 10 years.
A later provision of the Criminal Code, namely, s 426, forms part of a chapter concerning summary conviction for stealing and like indictable offences.
Section 426 makes provision for summary trial of stealing and like offences. Section 426(1) provides that subsection (2) is to apply to certain indictable offences. The list of offences includes those in subparagraph (a) being an offence under s 378, s 382, s 383 or s 388 in respect of which the greatest term of imprisonment does not exceed 7 years and those in subparagraph (b) being an offence under s 378 to which item (5)(a), (6) or (7) of that section applies. This suggests that for this purpose the parliamentary draftsman has chosen to draw a distinction between stealing and three specific forms of stealing, namely, stealing from the person of another (s 5(a)), stealing as a public servant (6), and stealing as a servant (7).
Section 426(2) provides that if a person is charged before a Court of Petty Sessions with an offence to which this subsection applies, and the value of the property in question does not exceed $10,000, or the court considers that the charge can be adequately dealt with summarily, the charge may be dealt with summarily at the election of the person charged, and, subject to subs (4), the person is liable on summary conviction to imprisonment for 2 years, or to a fine of $8,000.
Prima facie, then the general offence of stealing and the three special forms of stealing can be dealt with summarily if the value of the property does not exceed $10,000 or a summary trial is adequate in which case the offender will be liable to imprisonment for 2 years or to a fine of $8,000. That prima facie position, however, is expressly made subject to subparagraph (4).
Subsection (4) of s 426 (omitting the inessential parts for present purposes) provides that if a person is charged before a Court of Petty Sessions with an offence under s 378, and the value of the property in question does not exceed $1,000, and the charge is dealt with summarily, the person charged is liable on summary conviction to imprisonment for 6 months or to a fine of $2,000.
Counsel for the appellant in the present case submitted that the effect of these provisions was that where, as in the present case, the amount stolen was less than $1,000 and the person charged had elected to be dealt with summarily, the maximum penalty upon summary conviction was 6 months' imprisonment or a fine of $2,000. A maximum penalty of this kind was the background against which the sentencing process had to be undertaken in the present case.
Counsel for the respondent put up a different point of view. The effect of subsection (4) was to leave the three special forms of stealing subject to the prima facie position set out in subsection (2), and to allow for the general offence of stealing to be the subject of the lesser penalty prescribed by subsection (4). That was the point of the distinction to be found in s 378 between the general offence of stealing in s 378 for which the penalty was 7 years and the more specific forms of the offence for which the penalty was higher.
Counsel went on to say that the same sort of distinction is maintained in s 426 which allows for a lesser summary penalty in the case of the general offence of stealing. In other words, s 426(4) is consciously restricted to an offence under s 378, that is to say, the general offence of stealing, and does not extend to the three more specific forms of stealing singled out by s 426(1).
Counsel submitted that the consequence of this analysis was that in the circumstances of the present case, s 426(2) described the maximum penalty in respect of a person liable on summary conviction for stealing as a servant, such penalty being imprisonment for 2 years, or a fine of $8,000. It was this higher maximum penalty which comprised the backdrop against which the sentencing of the offender in the present case had to be considered.
I have given careful consideration to the respective contentions of the parties. In my view, there would be no point in the distinction created by s 426(1)(a) and s 426(1)(b) between stealing and the three specific forms of stealing, and those provisions would serve no purpose, unless the intention was to allow for a lesser summary penalty for the general offence of stealing. It follows that I prefer the argument advanced by counsel for the respondent. From this point on, I will proceed from the premise that the maximum penalty for the offence before the sentencing Magistrate in the circumstances of the present case where the value of the property taken was less than $1,000 was imprisonment for 2 years, or a fine of $8,000.
This brings me to the various statutory provisions and principles which have a bearing upon the sentencing process.
Section 196 of the Justices Act 1902 provides that the Court shall determine the appeal on the material before the court below. By s 199, the Court may dismiss the appeal, or set aside, quash or vary the decision or remit the case for hearing. If the Court considers that no substantial miscarriage has occurred, it may dismiss the appeal.
It is not enough that an appellate court might have exercised its discretion in a different manner. It must appear that some error has been made in exercising the discretion, such as acting upon a wrong principle, mistaking the facts or allowing extraneous or irrelevant matters to affect the decision made. Lowndes v The Queen (1999) 195 CLR 665.
Principles of sentencing in this State are reflected in s6 of the Sentencing Act1995 and related provisions. The sentence must be commensurate with the seriousness of the offence, this being determined by taking into account the statutory penalty, the relevant circumstances, and any aggravating and mitigating factors. A sentence of imprisonment must not be imposed unless it is justified by the seriousness of the offence or a need to protect the community.
Mitigating factors include assisting the police and entering a plea of guilty, with weight being given to the time at which the plea was made.
The sentencing options for a natural person are set out in s 39 of the Sentencing Act. A court must not use a particular option unless it is satisfied, having regard to the principles of sentencing mentioned earlier, that it is not appropriate to use any of the options listed before that option.
Thus, with or without making a spent conviction order, a court may impose no sentence and order release of the offender; impose a conditional release order and order release; impose a fine and order release; impose a community based order and order release. The list of options then proceeds to the imposition of an intensive supervision order with release, suspended imprisonment with release or a term of imprisonment.
A court must first determine whether imprisonment is appropriate before addressing the question of whether the proposed term should be suspended. This was the sequence outlined by Kirby J in Dinsdale v The Queen (2000) 175 ALR 315 which was later approved by this Court in Etrelezis v The Queen [2001] WASCA 327. It is wrong to assume, however, that the primary purpose of suspending the sentence is rehabilitative. The considerations that are relevant for the imposition of a term of imprisonment must be revisited in determining whether to suspend the term: cf R v Liddington (1997) 18 WAR 394. It is permissible to give offenders a last chance by way of suspension of sentence: Bacich v Illich[2000] WASCA 133.
It is apparent from the list of sentencing options that a term of imprisonment is the option of last resort. In the case of multiple offences, the totality principle requires the sentencing officer to determine whether the aggregate sentence is just and appropriate: Wilkinson (1996) 85 A Crim R 353.
The various statutory provisions and related principles indicate that the object of the sentencing process is to impose a just penalty for a particular offence. A balance must be struck between various considerations. The range of sentencing options allows for a degree of flexibility in the exercise of discretionary power. These principles facilitate the process of identifying omissions or irrelevant considerations. However, an appeal court must not simply substitute its own opinion as to the appropriate disposition.
When I turn to the first ground of appeal in the present case and the transcript of proceedings before the learned Magistrate, I am conscious that it is not clear from the transcript what the learned Magistrate considered the maximum penalty to be, although this is a matter which had to be weighed in the balance. It follows from earlier discussion that, in my view, the maximum penalty was imprisonment for a term of 2 years or a fine of $10,000.
It follows from the review of sentencing principles that the learned Magistrate was undoubtedly obliged to give weight to the seriousness of the offence. The decided cases clearly establish that stealing as a servant, which involves a breach of trust, is to be regarded as a serious offence and will generally carry with it a term of imprisonment. Nonetheless, the court must have regard to facts such as the quality and degree of trust reposed in the offender, the period over which the thefts were perpetrated, the use to which the money taken was put, the effect upon the victim, the impact of the offences on the public, the effect on fellow employees and the offender himself, and matters of mitigation special to the offender. R v Barrick (1985) 81 Cr App R 78; Pain v Forbes [2000] WASCA 260; Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998.
Counsel for the appellant emphasised that in the present case the amounts the subject of the stealing were small and the offences took place over a short period of time, occurring on only two distinct days. The offences were not of a sophisticated nature. The appellant's antecedents did not disclose any offences involving a breach of trust. For these reasons, he submitted, the offences fell towards the lower end of the scale.
Counsel submitted that the case of Allen v Powell [2000] WASCA 65 was an example of the appropriate penalty to be imposed for offences having the characteristics just described. In that case, the appellant was fined $200 in respect of each of two charges and was ordered to reimburse the complainant. On appeal, the court was persuaded that the circumstances justified the making of a spent conviction order, pursuant to s 45(1) of the Sentencing Act1995.
Counsel submitted that in the present case the appellant's antecedents disclosed only one relevant conviction, that being a summary conviction for stealing in 1988. Having regard to the various relevant factors, he submitted that the learned sentencing Magistrate imposed a penalty which was manifestly excessive in the circumstances.
Counsel for the respondent submitted that the sentencing Magistrate correctly took account of various factors bearing upon the seriousness of the offence.
The quality and degree of trust reposed in the appellant must have been high, as he was left to attend the service station on his own. The offences were conducted over a period of two consecutive nightshifts. Although the amount stolen was not large, it was clear that the offences were not committed on the basis of need, as the appellant was in fruitful employment and had few liabilities. Counsel referred to the previous stealing conviction in 1988 and acknowledged that this was the only prior conviction.
When one took account of these considerations, it could not be said that the sentence imposed was manifestly excessive.
As to this ground of appeal, I am satisfied that the aggregate sentence of 12 months' imprisonment was manifestly excessive. There is some doubt as to what the learned Magistrate thought was the maximum penalty for the offences before her. In any event, she was obliged to have regard to the overall criminality involved in the various offences.
The offences concerned small amounts of money taken in the course of two successive night shifts. It is true that stealing as a servant is a serious offence and a grievous breach of trust was involved. Nonetheless, the sentencing principles require that a sentence of imprisonment must not be imposed unless it is justified by the seriousness of the offence or the protection of the community requires it. There were other courses available to the learned Magistrate under the sentencing options including suspended imprisonment. As I will indicate in more detail below, it does not appear that sufficient weight was given to these considerations. The indications are that the learned Magistrate gave undue weight to the nature of the offence rather than concentrating on the circumstances of the actual offence.
The second ground of appeal was that the learned sentencing Magistrate erred in law, or alternatively in the exercise of her discretion, by failing to give sufficient weight to the appellant's plea of guilty.
Counsel for the appellant submitted that the learned Magistrate did not specifically allow any discount for the appellant's plea of guilty, notwithstanding that s 8(2) of the Sentencing Act requires that a plea of guilty be taken into account as a mitigatory factor. There are sound policy reasons for allowing a discount for an early plea of guilty. Having regard to the maximum penalty and the location of the offences upon the applicable scale, it was clear that an appropriate discount had not been allowed, contrary to the relevant policy reasons. Radebe v The Queen [2001] WASCA 254.

Counsel for the respondent conceded that the sentencing Magistrate did not appear to have addressed the question of a discount for the appellant's early plea of guilty.
I am satisfied, having regard to the submissions put to me, that the learned Magistrate was in error in failing to give sufficient weight to the appellant's plea of guilty. The absence of any reference to the allowance of a discount is usually indicative that no discount was in fact allowed: R v Gallagher (1991) 23 NSWLR 220 at 230.
The third ground of appeal was that the learned sentencing Magistrate erred in imposing a term of immediate imprisonment.
Counsel for the appellant recognised that in cases such as these, which involve a breach of trust reposed in the offender, a term of immediate imprisonment is usually required, save in very exceptional circumstances, or whether the amount of money obtained is small. R v Barrick (supra).
Counsel for the appellant went on to submit that in the present case where the amount taken was indeed small and where there had been an early plea of guilty, it was appropriate to impose a sentence of a different kind upon the offender. It was apparent from the transcript that the learned sentencing Magistrate had failed to properly consider sentencing options other than immediate imprisonment.
Counsel for the respondent conceded that the offences were at the lower end of the scale for this type of offence. The amount of money obtained was small and the period of offending was not protracted. Against this background, it could be argued forcefully that there was a case for not imposing a term of imprisonment.
In regard to this ground of appeal, I do consider that the learned sentencing Magistrate failed to give sufficient consideration to the available sentencing options allowed for by the Sentencing Act and failed to give sufficient weight to the fact that the amounts taken were small and that the matter before the court was at the lower end of the scale for this kind of offence. Accordingly, I consider that this ground of appeal has been made out.
It follows from earlier discussion that it is not sufficient that an appellate court may simply have taken a different view of the sentencing issue before the court. It must be shown that the court at first instance failed to properly exercise its discretion. It is apparent from my review of the submissions directed to the various discrete grounds of appeal that in a number of significant respects, in my view, the learned Magistrate fell into error, with the result that the appeal should be allowed and consideration must be given to the appropriate sentencing disposition in the circumstances of this case.
Counsel for the appellant contended that the appropriate sentence at the time of the appellant's plea of guilty was either a conditional release order, a community based order or a fine. Counsel submitted that the appellant has already served 7 weeks of imprisonment and in those circumstances the appropriate sentence to be substituted for the sentence imposed at first instance was that no further penalty be imposed. This outcome would be commensurate with the appellant's criminality.
The powers of the court upon the hearing of an appeal are described in s 199 of the Justices Act 1902. Those powers include provision for substituting a decision that ought to have been made in the court below. Alternatively, the case can be remitted with or without a direction as to how the matter should be dealt with.
In the circumstances of this case, I am inclined to take account of the fact that the appellant has already served 7 weeks of imprisonment. Accordingly, I will order that the sentence previously imposed be quashed. A substituted term of imprisonment of 7 weeks will be ordered. I will make a direction pursuant to s 87 of the Sentencing Act that the term of imprisonment just mentioned is to be taken to begun on the day when the appellant was taken into custody for the offences in question with the result that the appellant can now be taken to have served his term.
I am obliged to turn, finally, to the question of costs. The appellant seeks an order for costs pursuant to provisions of the Official Prosecutions (Defendants' Costs) Act1973.
Counsel for the respondent submits that the appellant does not fit within the definition of "successful defendant" in that Act in that the charges are not dismissed, withdrawn or struck out, and neither is a conviction quashed, even though there be some amelioration or overruling of the sentencing disposition. Further, the appellant cannot be described as partly successful in that he is convicted of the lesser offence with which he was charged or a lesser number of charges. Accordingly, counsel for the respondent submitted, the question of costs does not arise.
I have given careful consideration to this aspect of the matter. I am of the view that the submissions made by counsel for the respondent are well‑founded. Accordingly, there will be no order for costs of the kind sought by counsel for the appellant.