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Dukes v Barrett

Dukes v Barrett

Case [2001] WASCA 338 2 November 2001

Criminal Liability

Sentencing

Criminal Law

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dukes v Barrett

Details

AGLC: Dukes v Barrett [2001] WASCA 338
Case: [2001] WASCA 338
Decision Date: 2 NOVEMBER 2001

CaseChat Overview and Summary

The case of Dukes v Barrett involved the defendant, Dukes, appealing against the sentence imposed by the Magistrates' Court of Victoria. Dukes was found guilty of stealing items of little monetary value while acting as a servant. The prosecution brought charges against Dukes for various offences, and the court sentenced him to a total of 12 months' imprisonment. Dukes contested the severity of the sentence, arguing that it was excessive given the nature and value of the stolen items.

The central legal issue in this case was whether the sentence imposed by the Magistrates' Court was appropriate in light of the circumstances. The court had to consider the gravity of the offence, the defendant's character and circumstances, and the principles of sentencing for theft. The court also needed to determine whether the sentence was disproportionate to the value of the stolen property and the role of the defendant as a servant.

In its reasoning, the court acknowledged that while the defendant's actions were dishonest, the value of the stolen items was relatively minor. The court considered the defendant's background and circumstances, including his status as a servant and the minimal value of the stolen property. The court determined that the sentence was disproportionate to the offence, given the minimal value of the stolen items. Consequently, the court held that the sentence was excessive and ordered a review of the appropriate punishment. The court ultimately determined that the sentence should be reduced, taking into account the factors mentioned above.

Orders