Haddon v Sarhan and Uren - [2012] ACTSC 73

BERNADETTE JANE HADDON v AMERA SARHAN and
ALEXANDRA FRANCES UREN [2012] ACTSC 73 (1 May 2012)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 100 of 2011

Judge: Penfold J
Supreme Court of the ACT

Date: 1 May 2012

IN THE SUPREME COURT OF THE     )
  )          No. SCA 100 of 2011
AUSTRALIAN CAPITAL TERRITORY           )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:   BERNADETTE JANE HADDON
  Appellant
AND:             AMERA SARHAN and        ALEXANDRA FRANCES UREN
  Respondents

ORDER

Judge:  Penfold J
Date:  1 May 2012
Place:  Canberra

THE COURT:

Upheld the appeal.

Set aside the sentences imposed in the Magistrates Court on charges CC 2011/7141, 2011/4569 and 2011/7143.

Re-sentenced the appellant as follows:

(a) on Charge CC 2011/7141—the appellant is fined $100;

(b) on Charge CC 2011/4569—the appellant is ordered to sign an undertaking to comply with her good behaviour obligations for 12 months, a condition of which is that the appellant performs 60 hours community service, backdated to take account of 60 hours community service already performed under one of the original sentences;

(c) on Charge CC 2011/7143—the appellant is ordered to sign an undertaking to comply with her good behaviour obligations for 12 months, a condition of which is that the appellant performs 60 hours community service accumulated on the 60 hours community service required by the sentence on Charge CC 2011/4569 and backdated to take account of 14 hours community service already performed under one of the original sentences, leaving 46 hours to be performed.

Introduction

Bernadette Jane Haddon has appealed sentences imposed in the Magistrates Court in October last year for three offences, arising out of two occasions on which she stole credit cards accidentally left by customers in a shop where she worked part-time, and then used the credit cards to obtain goods and services from various businesses.

There were nine offences dealt with in the Magistrates Court, being two offences of minor theft, and seven offences of obtaining property by deception.

The first theft took place on 27 December 2010, and the stolen credit card was used on four occasions in early January 2011. For that theft, and three of the four deceptive uses of the stolen card involving property valued from $22 up to $171, the sentencing Magistrate imposed fines of $100 each, and for the use of the card to obtain property valued at nearly $450, his Honour ordered Ms Haddon to perform 80 hours of community service.

The second theft and the deceptive uses of the second stolen card were committed in late January 2011. For that theft, and for obtaining property worth $9.80, his Honour again imposed fines of $100 each. For obtaining property worth $62, his Honour ordered 100 hours community service cumulative on the 80 hours previously imposed, and for obtaining property worth $80.43, his Honour imposed a two month prison sentence fully suspended.

The appeal

The appeal related only to the sentences of imprisonment and…

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 Haddon v Sarhan and Uren

Details

AGLC: Haddon v Sarhan and Uren [2012] ACTSC 73
Case: [2012] ACTSC 73
Decision Date: May 1, 2012

CaseChat Overview and Summary

Bernadette Jane Haddon has appealed sentences imposed by the Magistrates Court of the Australian Capital Territory in relation to nine offences, arising out of two occasions on which she stole credit cards accidentally left by customers in a shop where she worked part-time, and then used the credit cards to obtain goods and services from various businesses. The appeal concerned the sentences of imprisonment and community service orders. The original appeal grounds were amended without opposition from counsel for the respondents, who conceded at the hearing that the sentencing Magistrate had failed to give any reasons for his sentences. This failure was an appellable error. The failure to give reasons more generally is also an appellable error, as is the failure to advert to the pleas of guilty. The findings of error permit an appeal court to re-sentence an appellant if another sentence is appropriate. The question for the Court was whether for any or all of the three sentences under appeal, another sentence was appropriate.

The sentencing Magistrate’s failure to give reasons for the sentence of two months imprisonment was fatal. The only comment that his Honour made that could be identified as part of his reasons was made during submissions, as follows: “Well, not only is it a theft from members of the community, it’s a betrayal of trust of her employer, where the credit cards were left inadvertently by the two ladies who were customers of [the business], and she used her position to thieve them. She then used those cards to defraud members of the retail community. There’s not much that can be said in her favour.” The sum total of his comments in relation to the sentence of imprisonment was: “In relation to 7143, you’re sentenced to two months imprisonment. That’s to be fully suspended on giving security in the sum of $100 for compliance with the order to be of good behaviour for a period of 18 months.” There was no justification for the imposition of a sentence of imprisonment in this situation. There was nothing in Ms Haddon’s subjective circumstances that indicated that a prison sentence was required or even justified in this case. Ms Haddon was 44 at the time of the offences, a single parent caring for two of her three children and engaged in a custody battle over the third child; she had also been battling bipolar disorder for some time. Ms Haddon, who had been struggling to make ends meet on social security benefits, child support, and the income from part-time work, said that she had used the stolen credit cards to fund basic living expenses, such as groceries and fuel. Before these offences were committed, Ms Haddon had no criminal record; that is, this group of nine offences were her first offences. Ms Haddon had made what seemed to be accepted as early pleas of guilty, although the prosecutor had noted that their utility was diminished by the existence of a strong Crown case. As to the objective circumstances, while I agree with his Honour’s view that all these offences represented a real breach of the trust placed in Ms Haddon by both her employer and her customers, I cannot see anything that distinguished the offence for which imprisonment was imposed from any of the other offences that is sufficient to justify the jump from $100 fines to two months imprisonment. Nor do I accept the argument of counsel for the respondent that the totality principle entitled his Honour to impose a disproportionately higher penalty for one offence if, considering all the offences together, he concluded that the total sentence was not high enough to represent the total criminality. Furthermore, while repeated offending certainly over time may deprive an offender of a claim to leniency, I am not convinced that where a series of similar offences are all committed as part of the same course of conduct and before the offender has been caught and dealt with for the first time, there is necessarily a basis for treating the later offences in the series as more serious because of the preceding offences. Need for re-sentencing For all these reasons, it seems to me that the sentence of imprisonment must be overturned, and that this clearly means that another sentence is appropriate so as to require a re-sentencing.

The appeal was upheld, and the sentences imposed in the Magistrates Court were set aside. The appellant was re-sentenced as follows: (a) on Charge CC 2011/7141—the appellant was fined $100; (b) on Charge CC 2011/4569—the appellant was ordered to sign an undertaking to comply with her good behaviour obligations for 12 months, a condition of which was that the appellant perform 60 hours community service, backdated to take account of 60 hours community service already performed under one of the original sentences; (c) on Charge CC 2011/7143—the appellant was ordered to sign an undertaking to comply with her good behaviour obligations for 12 months, a condition of which was that the appellant perform 60 hours community service accumulated on the 60 hours community service required by the sentence on Charge CC 2011/4569 and backdated to take account of 14 hours community service already performed under one of the original sentences, leaving 46 hours to be performed.

Orders