Hall v White
[2006] TASSC 53
•6 July 2006
[2006] TASSC 53
CITATION: Hall v White [2006] TASSC 53
PARTIES: HALL, David Michael
v
WHITE, Sergeant Graham Ross
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 10/2006
DELIVERED ON: 6 July 2006
DELIVERED AT: Launceston
HEARING DATE: 21 June 2006
JUDGMENT OF: Crawford J
CATCHWORDS:
Magistrates – Jurisdiction and procedure generally – Procedure – Orders and convictions – Sentencing – Imprisonment – Cumulative or concurrent sentences – Related crimes – One course of criminal conduct – Whether second sentence offended totality principle.
Aust Dig Magistrates [151]
REPRESENTATION:
Counsel:
Applicant: A C C Fowler
Respondent: V Jones
Solicitors:
Applicant: Douglas & Collins
Respondent: Director of Public Prosecutions
Judgment Number: [2006] TASSC 53
Number of paragraphs: 18
Serial No 53/2005
File No LCA 10/2006
DAVID MICHAEL HALL v SERGEANT GRAHAM ROSS WHITE
REASONS FOR JUDGMENT CRAWFORD J
6 July 2006
The applicant seeks a review of a sentence of 18 months' imprisonment from 18 December 2005, with a non-parole period of 12 months, imposed by a magistrate, Mr P H Wilson, on 7 April 2006, for offences of dishonesty. The grounds of review are manifest excessiveness and a failure to have regard to the so‑called totality principle. He also seeks a review of the learned magistrate's failure to reduce the total amount payable by the applicant by way of victims of crime compensation levies to $500. Without any order reducing his liability, he was liable to pay $2,380 (the learned magistrate incorrectly referred to $2,360.) I will return to that aspect later.
In his comments on passing sentence the learned magistrate referred to 118 charges. More accurately, there were two counts of stealing, 83 counts of dishonestly acquiring a financial advantage and 34 counts of attempting to dishonestly acquire a financial advantage, a total of 119 charges in four complaints.
Little detail of the facts was given to the learned magistrate by the prosecutor. They were stated in the following way. Between 6 January 2004 and 2 September 2005 the applicant was employed as a computer technician by Another Computer Store. During that period of time he removed items of property from his place of employment by placing them in his bag. He then sold or attempted to sell most of the items on the Internet. The sales and attempted sales were the subject of the charges of dishonestly acquiring a financial advantage and attempting to dishonestly acquire a financial advantage.
Each of the two counts of stealing contained rolled up allegations of stealing individual items of property over periods of time. One of the counts alleged the theft of computer components, to an approximate value of $12,000, between 6 January 2004 and 22 December 2004. The other alleged the theft of computer components, to an approximate value of $11,500, between 23 December 2004 and 2 September 2005. In contrast, it appears that each of the 83 charges of dishonestly acquiring a financial advantage and the 34 charges of attempting to dishonestly acquire a financial advantage related to an individual item of property that had been stolen from the applicant's employer and then sold, or sought to be sold, on the Internet.
The learned magistrate was informed that for related offences the applicant had been sentenced in the Supreme Court, on 19 September 2005, to seven months' imprisonment of which three months were suspended on condition that for two years following his release he not commit offences of dishonesty. Counsel for the applicant told the learned magistrate that in the Supreme Court there were four charges, one of stealing, two of dishonestly acquiring a financial advantage and one of attempting to dishonestly acquire a financial advantage, and that the approximate value upon which the judge sentenced the applicant was $20,000. If he had received the usual remission for good behaviour, he would have been due for release on 18 December 2005, but instead, remained in custody awaiting the resolution of the complaints upon which he was sentenced by the learned magistrate.
It was not altogether satisfactory that the applicant was sentenced by a judge for some of the offences committed in the course of his employment and that he was later sentenced by a magistrate for the balance of them. That came about because there was a large investigation that was ongoing. It reached a stage when charges were laid and he was sentenced for them on 19 September 2005. The charges applied to the period of one year to 2 September 2005. However, the investigation continued and the four complaints upon which the learned magistrate sentenced were made on 24 October 2005. They could have contained one rolled up charge of stealing between 6 January 2004 and 2 September 2005 for a sum in excess of $20,000, but instead two charges of stealing were laid, one for the period 6 January 2004 to 22 December 2004 and the other for the period 23 December 2004 to 2 September 2005 and each complaint was for the theft of property worth less than $20,000. By that method, the Magistrates Court was given jurisdiction to deal with them. If there had only been one charge of stealing property exceeding $20,000 in value the provisions of the Justices Act 1959, s72(1), would have required that the applicant be committed for sentence to this Court. As a result, he has been sentenced for some of his criminal conduct in this Court and for the other part in the Magistrates Court. The preferred course would have been for the same court, indeed the same judge or the same magistrate, to have dealt with all of the charges.
Counsel for the applicant stated to the learned magistrate that there was in reality one course of conduct and that some of the charges that were before the learned magistrate predated the offences for which the Supreme Court had sentenced him. Many of the charges were made as a result of assistance by the applicant in the police investigation and admissions made by him. His assistance had avoided a long and time-consuming investigation. He pleaded guilty at the earliest opportunity. It was submitted that the offences were out of character. He had no prior convictions. He had been in steady employment since leaving school. Although not offered as an excuse, his counsel said that he was under a number of pressures at the time of the offences. His mother and uncle were seriously ill with cancer. His counsel said that his wife was also very ill during the pregnancy of their second child. However, I note that as the offences extended over a period of 21 months, the relevance of that illness is plainly dubious.
Counsel said that the family had debts of approximately $10,000 and were suffering financially. It was asserted that he was "incredibly remorseful", embarrassed and ashamed by his offences. At the time of sentencing he had two children, the youngest nine months of age. His wife was suffering from post-natal depression. His family was living in Queensland and struggling financially and emotionally. He intended joining it following his release from prison. He was 27 years of age at the time of sentencing.
In comments on passing sentence, the learned magistrate said:
"I take into account what is said on your behalf. You're a young man still with a young wife and children and family responsibilities, those responsibilities bore hard on you at a time when your mother and uncle were suffering illness and that weighed heavily upon you itself, you were also under financial pressure with various debts and you embarked upon this course of criminal behaviour thinking, no doubt, that it would solve some of your problems. Of course, it didn't because when ultimately uncovered and I note the assistance you offered, it's only added to your woes and has led you to gaol. Now the Supreme Court was dealing with you on the basis that you had committed crimes of stealing over a period of something like a year as I understand it, involving property to a total value of some $20,000, there were then three other separate transactions, one of attempting to dishonestly acquire a financial advantage and the other two of actually acquiring a financial advantage.
I regard those matters as part of a continuing transaction of dishonest behaviour on your part that has resulted in you being before this Court here today on some 100 odd, 116, I believe transactions of either acquiring a financial advantage or attempting to and on two charges of stealing computer components valued variously – the charges of stealing, that is, valued at some $23,500 in total. The point I make as to the number of transactions and the 18 months or so, these are the matters before this Court, over which they continued is that each and every time you did that you had an opportunity to stop and say, 'no I'm not going to do any more, this is going to be it' but you didn't, you continued on. Now it's your first time in prison and it's wearing hard on you and your family members. Certainly any sentence should not be crushing of course, there is still hope for reform and I note that you have pleaded guilty, you are remorseful and I believe that, that is more than just being remorseful at the predicament you now face yourself because you did give assistance to police in tracing some of these items, I'm told that otherwise would have been hard to trace.
In my view a sentence of 18 months' imprisonment is appropriate for these matters before this Court today and you are convicted upon each complaint and sentenced to a term of 18 months' imprisonment that will be backdated to the date I have been assured was your earliest release date which was the 18th December last year. Now I'm going to express a non-parole period regarding this sentence imposed today of 12 months so that will take you through the rest of this year. I also apply as I must the victim compensation levies of $2,360, I allow the claim for compensation which by consent is assessed in the sum of $23,500, and clearly I will grant time from the date of your release within which to pay - $25,860 ... you'll have two years from your release within which to pay."
It was observed earlier by the learned magistrate that he would deal with the offences upon the basis that they formed part of one continuing transaction for which the applicant had been sentenced in the Supreme Court and was to be sentenced by the learned magistrate, but the learned magistrate was sentencing for a greater number of criminal transactions than was the case in the Supreme Court. That was accepted by the applicant's counsel as correct. The main difference appears to be that the learned magistrate sentenced the applicant for 117 counts of dishonestly acquiring a financial advantage or attempting to do so whereas the Supreme Court sentenced him for only three such offences.
The first question to be decided is whether, when viewed alone, without regard to the sentence imposed in the Supreme Court, the learned magistrate's sentence was manifestly excessive. Having regard to the range of sentences imposed by judges of this Court over many years, particularly for offences of dishonesty committed by employees in breach of their employer's trust, I conclude that 18 months' imprisonment was not manifestly excessive. It may have been so if all the applicant was sentenced for were the thefts of property to a total value of $23,500, notwithstanding that he had stolen items on many different dates over a period of 20 months. However, when account is taken of the fact that he was also sentenced for making 83 individual sales of stolen property to unsuspecting purchasers, and also for a further 34 attempted sales of that kind, the imprisonment of 18 months was not manifestly excessive, nor do I think that a non-parole period of 12 months made it so.
The next question to be determined concerns the total effect of the two sentences suffered by the applicant. The sentencing judge made no order concerning parole eligibility, no doubt because of the shortness of the period of imprisonment which, standing alone, did not permit parole. Nevertheless, the suspension of three months of the seven months of imprisonment gave to the applicant a benefit that was more favourable than parole eligibility and the suspension should be taken into account when considering the total punishment. The overall effect of the sentences imposed in the Supreme Court and the Magistrates Court for the same course of criminal conduct, taking into account the date each sentence commenced, was that the applicant was sentenced to a cumulative total of two years' imprisonment, with a non-parole period of 15 months and with three months of the imprisonment suspended. It was argued for the applicant that in total the two sentences were manifestly excessive. Both counsel agreed that the appropriate way for the learned magistrate to have proceeded, given what had occurred in the Supreme Court, was to impose a sentence which, when combined with the former sentence, produced sentences of imprisonment that in total were appropriate for all of the applicant's offending between 6 January 2004 until 6 September 2005.
The question to be answered can be stated as follows. Was imprisonment for two years, of which three months were suspended, with a non-parole period of 15 months, within the appropriate range and not manifestly excessive for a first offender aged 25 and 26 at the time of his offending, and for whom the mitigating factors I have mentioned applied, who stole his employer's property to a value of about $43,500, the number of items of property stolen well exceeding 100, who dishonestly used his employer's credit card on three occasions to obtain or attempt to obtain items of property for himself and who sold or attempted to sell, on the Internet on 117 occasions, items that had been so stolen? My conclusion is that imprisonment of that length was within the range of sentences that would have been imposed by members of this Court and that it was not manifestly excessive.
An associated question is whether the requirement that he must serve 15 months in prison before becoming eligible for parole, rendered the sentence manifestly excessive. The law would not have allowed him to do better than have parole eligibility after 10½ months on 21 months to be served. Sentencing Act 1997, s17(3). He was not entitled to eligibility for parole unless it was ordered and there was no rule or law that required an order to be made that provided for eligibility after a period of less than 15 months. My view is that although an order that provided for it after say 12 months would not have been inappropriate, the order that was made has not been shown to be erroneous and it did not make the sentence, or the totality of the two sentences, manifestly excessive.
Under the Victims of Crime Compensation Act 1994, s5(1), the applicant was required to pay a compensation levy to the Crown. By subs(2) the amount of the levy was $2,380, calculated upon the basis of $20 for each charge. By subs(6), the levy was additional to any order for payment of compensation that may have been imposed. In that regard, the learned magistrate ordered that the applicant pay $23,500 in compensation. The sentencing judge also made an order that the applicant pay compensation to a victim, but the amount of the compensation was not assessed at that time.
Under s6(2), if the learned magistrate was satisfied in the circumstances that the applicant would suffer financial hardship if required to pay the total amount of $2,380, there was power to exercise a discretion, having regard to such matters as the magistrate considered appropriate, to order that the total amount of the compensation levies that the applicant was liable to pay be reduced to such sum as the learned magistrate considered reasonable, but one that was not less than $500. The applicant did not ask the learned magistrate to exercise that discretion and there is no indication in what was said by his Honour that he even considered it. From what he said ("I also apply as I must the victim compensation levies of $2,360") it appears that he considered that he had no discretion and in that regard I think, with respect, that his Honour erred. On the material presented there is no question that the applicant would have suffered financial hardship if required to pay $2,380. He had been in custody for over six months, he and his family were in debt and his wife did not work.
In the circumstances of such an error I should consider exercising the discretion myself. Having regard to the poor financial state of the applicant and his family, it was an appropriate case for an order that the total amount of the compensation levies that he was liable to pay be reduced to $500.
Accordingly, the motion to review will succeed only in respect of the levies. It will be ordered that the total amount of the compensation levies that the applicant is liable to pay with regard to the offences in complaints 40145/05, 40148/05, 40152/05 and 40214/05 is to be reduced to $500. Otherwise the motion is dismissed.
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