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:

Appeal allowed.

Sentence quashed.

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

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.

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…

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 Hill v R

Details

AGLC: Hill v R [1999] TASSC 29
Case: [1999] TASSC 29
Decision Date: 19 March 1999

CaseChat Overview and Summary

The appellant, Malcolm Peter Hill, appealed against his sentence of eighteen months' imprisonment imposed for stealing from his employer. The case was heard by the Court of Criminal Appeal in Tasmania. The central issue was whether the sentence was manifestly excessive.

The Court considered the appellant's criminal history, which included multiple convictions for dishonesty and other related offences, and his involvement in drug use which led to the thefts. The appellant's conduct involved stealing over $5,000 from his employer over a three-week period. The Court examined sentencing precedents and guidelines for theft offences, particularly those involving dishonesty in employment, and found that an eighteen-month sentence was significantly higher than typical sentences for similar offences.

Chief Justice Cox held that the sentence was manifestly excessive and should be reduced to twelve months' imprisonment. Justice Wright dissented, arguing that the sentence, while severe, was within the appropriate range given the appellant's extensive criminal history and the nature of the offence. Justice Evans agreed with Chief Justice Cox, finding that the sentence exceeded typical penalties for similar offences and should also be reduced to twelve months' imprisonment.

The Court allowed the appeal and substituted a sentence of twelve months' imprisonment, effective from the date of the original sentence.

Orders