Hill v R

[1999] TASSC 29

[1999] TASSC 29

PARTIES:  HILL, Malcolm Peter
  v
  R

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  98/1998
DELIVERED:  19 March 1999
HEARING DATE/S:  2 March 1999
JUDGMENT OF:  Cox CJ, Wright J, Evans J

CATCHWORDS:

Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Appeal against sentence - General principles - Theft from employer - Whether sentence manifestly excessive.

Taylor v R (1996) 6 Tas R 310; Walsh v Tattersall (1996) 188 CLR 77, applied.
Veen v R (No 2) (1987 - 1988) 164 CLR 465, considered.

Aust Dig Criminal Law [1003]

REPRESENTATION:

Counsel:
           Appellant:  In Person
           Respondent:  M A Stoddart
Solicitors:
           Appellant:  In Person
           Respondent:  Director of Public Prosecutions

Judgment category classification:
Judgment ID Number:  [1999] TASSC 29
Number of pages:  5

Serial No 29/1999
File No 98/1998

MALCOLM PETER HILL v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

COX CJ
  WRIGHT J (Dissenting)
  EVANS J

19 March 1999

Orders of the Court:

1. Appeal allowed.

1. Sentence quashed.

1. Substitute a sentence of imprisonment for twelve months from 5 October 1998, the date upon which the original sentence was imposed.

Serial No 29/1999
File No 98/1998

MALCOLM PETER HILL v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

COX CJ

19 March 1999

1. The appellant stole from his employer $5,340.20 by pocketing money received from customers for the purchase of petrol.  He continued to engage in this enterprise for about three weeks until, his employer becoming suspicious, a trap was laid for him in the form of a marked $50 note which he secreted on his person instead of depositing it in the till.  When confronted, he was found to have a total of $1,112.70, including the note, on him and he admitted having stolen that sum in the manner outlined.  On being interviewed, he confessed to having stolen several other sums and it is by reason of his admissions that the total sum of $5,340.20 was nominated in the complaint.  My concern that to have charged him with a single count of stealing the latter sum may have rendered the complaint duplex has been allayed by reading the comments of Underwood and Zeeman JJ in Taylor v R (1996) 6 Tas R 310, to which my brother Wright J has referred in his reasons for judgment which I have had the opportunity of reading and by a consideration of Walsh v Tattersall (1996) 188 CLR 77 to which my brother Evans J has referred.

1. The appellant's sole ground of appeal is that the sentence of eighteen months' imprisonment imposed upon him is manifestly excessive.  He is presently 27 years of age, or 26 at the time of the offence.  His proffered excuse was a drug habit in respect of which he had incurred debts which he endeavoured to pay by gambling with the money he stole from his employer.  He has a substantial criminal history for dishonesty.  He had numerous appearances in the Children's Court for burglary and stealing and, since becoming an adult, has been convicted for similar offences on eight separate occasions, as well as being convicted on a further occasion for some six counts each of forgery, uttering and obtaining goods by a false pretence.  Many of the penalties imposed were non-custodial.  More than once he has been brought before the court for breaching the terms on which short sentences of imprisonment have been suspended.  He has so far only been to prison twice ¾ once in 1990 for twenty-eight days for burglary and stealing and again in 1993 for the forgery and allied charges.  At the time of the current offence, he was on probation for two counts of stealing committed in September 1996, the sentence being imposed in March 1997, six months before this criminal enterprise was undertaken.

1. Clearly, a sentence of actual imprisonment of considerably greater severity than he has yet received was required in the circumstances, both as a general and personal deterrent.  There were very few mitigating factors.  He pleaded guilty in the Court of Petty Sessions in August 1998 after a number of adjournments and he maintained his plea in the Supreme Court in October 1998.  It is also a fact that he frankly acknowledged his offence and modus operandi when interviewed by the police after he had been caught, in effect, red handed with the marked bank note.  By reason of his admissions, a greater sum than the $1,112 recovered from him was acknowledged to have been stolen.  None of the other money was recovered, however.

1. It is trite law that a sentence must be proportionate to the gravity of the offence and that to impose a disproportionate penalty by reason of antecedent criminal history involves the infliction of a fresh penalty for past offences (Veen v R (No 2) (1987 - 1988) 164 CLR 465 at 477). The existence of such a history may, however, justify a sentence at the top end of the range for offences of this kind. Professor Warner, in her work Sentencing in Tasmania at 12.707, observed that of the sentences (1983 - 1989) studied by her for theft in the course of a prisoner's employment:

"Sentences in the high-middle range (18 months - 2 years) were imposed where the course of dishonest conduct was sustained over a period and the median amount involved was about $15,000.  Sentences in the middle range (12 months) involved a median amount of $13,000."

This would tend to suggest that for a criminal enterprise involving a series of deliberate but petty thefts amounting to a little over $5,000 in value occurring over a three week period, a sentence of eighteen months' imprisonment is a significant departure from the norm and one not explained by the persistence in criminal behaviour the offender's previous record demonstrates.  Counsel for the Crown submitted a number of comments on passing sentence in respect of other offenders, but they were of little assistance, save to demonstrate that even in cases of fraud involving sums five to ten times greater than the appellant stole, sentences of substantially less than eighteen months had been imposed.

1. With respect, I am unable to agree that such a sentence was well within range given the circumstances of this case.  At best it could be said to be at the very top of the range.  However, I consider that it goes beyond that and justifies the description of manifestly excessive.

1. I would allow the appeal and substitute a sentence of twelve months' imprisonment from 5 October 1998, the date upon which the original sentence was imposed.

   File No 98/1998

MALCOLM PETER HILL v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

WRIGHT J
19 March 1999

1. The only issue which has exercised my mind was that raised from the bench by the learned Chief Justice who suggested that the appellant's conviction may be bad if based upon a duplicitous indictment.  In this connection, I have considered the very helpful observations made by Underwood and Zeeman JJ in Taylor v R (1996) 6 Tas R 310 at 321 and following and 338 and following, respectively. Applying those observations to the case before us, I can say that I am satisfied that the single count of theft upon which the appellant was convicted and sentenced upon his plea of guilty, was not bad for duplicity. The various acts of pocketing money intended for his employer occurred over a short period of just three weeks and were part and parcel of a systematic program of fraudulent conduct. The separate individual acts were not sufficiently particularised by the appellant to enable separate charges to be preferred in respect of each dishonest transaction. It may be objected that the appellant could have elected disposition in the lower court if the charge had been broken up into smaller individual components, but as the total would have been the same and as a guilty plea was entered, I see no valid basis for complaint on this ground. Indeed, by proceeding on one composite charge, the appellant was afforded an unconditional right of changing his plea in the Supreme Court and, if he wished, electing trial by jury. He has plainly suffered no injustice and, after all, it is the potential for injustice to the accused person which lies at the heart of rules regarding duplicity.

2. In my opinion, the complaint in this case was not bad for duplicity, the appellant's plea thereto, both in the court below and this Court, was a valid acknowledgement of his guilt of the offence alleged and his sentence is beyond challenge on this ground.

3. The substance of his appeal was that the sentence of eighteen months was manifestly excessive.  In my opinion, although severe, it was well within range.  He is a confirmed recidivist with a bad record for dishonesty.  He stole $5,340.20 over a twenty-one day period.  The money was entrusted to him in the course of his employer's business.  At the time he was on probation for an earlier offence of stealing.  His involvement with drugs and his protestations of remorse cut little ice with me.  In my opinion, his sentence was not manifestly excessive.  I would dismiss the appeal.

   File No 98/1998

MALCOLM PETER HILL v THE QUEEN

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

EVANS J
19 March 1999

1. The appellant, a service station attendant, was caught stealing from his employer.  When interviewed by the police he admitted that during the course of about eleven days when he was at work between 1 October 1997 and 21 October 1997, he stole money paid to him by customers.  When he was paid the correct amount for a purchase by a customer and it was not necessary for the appellant to use the till to provide change, he pocketed the payment.  On the basis of the appellant's admission he was charged with one count of stealing $5,340.20.  Technically a theft occurred on each occasion that the appellant took a payment, and, if appropriate details were available to the Crown, a separate charge could have been laid in relation to each occasion.  This prompted the learned Chief Justice to query whether the charge was duplex.

1. The rule against duplicity is one of elementary fairness to enable a defendant to know what it is for which he or she has been charged or found guilty.  Walsh v TattersalI (1996) 188 CLR 77 at 84. Where multiple acts can be fairly viewed as one transaction or criminal enterprise, a single charge based on the acts can escape an attack on the ground of alleged duplicity, Walsh v Tattersall (supra) at 107. Applying the indicia referred to in Walsh v Tattersall (supra) at 108, by Kirby J, it can be said that the actions of the appellant which are the basis of the charge are similar, they occurred at the same place and are connected in point of time, having occurred within a period of three weeks. At all times when the appellant pocketed payments, his intention was the same, to steal. In these circumstances, the appellant's conduct can fairly and properly be identified as one criminal enterprise and made the subject of one charge. This does not involve any unfairness to the appellant. The charge is not bad for duplicity.

1. The appellant contends that his sentence of eighteen months' imprisonment was manifestly excessive.  Professor Warner's analysis of Tasmanian sentences for theft and fraud in the course of employment between 1983 and 1989 found that offences involving a median amount of $13,000 attracted sentences of twelve months' imprisonment.  I have reviewed the sentences imposed by this Court over the past eight years on offenders who, in a position of trust, stole less than $35,000.  Of the thirty sentences I have been able to identify, the longest sentence imposed was twelve months' imprisonment.  Three thefts of over $25,000 attracted that sentence.  The most common sentence was six months' imprisonment.

1. The appellant was 26 years of age when he committed the offence.  He has a substantial record of prior convictions for offences of dishonesty which were described by his counsel as involving money and goods of small value.  The appellant's prior convictions do not justify the imposition of a penalty which goes beyond the level appropriate to the particular offence for which he was before the Court.  In my respectful opinion, the penalty of eighteen months' imprisonment went sufficiently beyond the range of sentences imposed for offences equatable to that of the appellant's to be manifestly excessive.

1. The appeal should be allowed and a penalty of twelve months' imprisonment imposed in place of the sentence of eighteen months' imprisonment.