Hollingsworth v Keates
[2002] WASCA 86
•18 APRIL 2002
HOLLINGSWORTH -v- KEATES [2002] WASCA 86
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 86 | |
| 18/04/2002 | |||
| Case No: | SJA:1182/2001 | 10 APRIL 2002 | |
| Coram: | WHEELER J | 10/04/02 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | STACEY LEE HOLLINGSWORTH GREGORY CRAIG KEATES |
Catchwords: | Turns on own facts |
Legislation: | Criminal Code, s 378, s 426(3) and (4) |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
GREGORY CRAIG KEATES
Respondent
Catchwords:
Turns on own facts
Legislation:
Criminal Code, s 378, s 426(3) and (4)
Result:
Appeal allowed
(Page 2)
Category: B
Representation:
Counsel:
Appellant : Mr M J Bowden
Respondent : Ms K S Hitchins
Solicitors:
Appellant : Legal Aid WA
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 WHEELER J: This appellant was sentenced to a period of 6 months' imprisonment for stealing property to the value of $128, contrary to s 378 of the Criminal Code. The maximum penalty available where the matter is dealt with summarily pursuant to s 426(3) and (4) is a fine not exceeding $1,000 or 6 months' imprisonment.
2 The appellant entered a plea of guilty to the charge. The facts were that in a Target store in Perth she had removed two ladies watches from a glass cabinet, she walked elsewhere in the store and hid behind a clothes display where she removed one of the watches from its packaging and placed it inside her clothing. She attempted to remove the second from its packaging but was unable to do so and placed it on a clothes display. She was also observed in the same area with other items sticking out of the rear waistband of her pants. When she attempted to leave the store without paying for any items she was stopped by security officers and asked to return to the office. There she removed five pairs of socks and a nail kit from the waist of her pants and placed them on a table. She dropped the ladies watch and some makeup onto the floor. All of that material was the property of Target. She refused to make any comment as to how she had come into possession of the items, but stated that she was going to pay for them.
3 The plea in mitigation which was made to his Worship was very brief, being simply to the effect that the appellant was a heroin addict, had beaten the problem, but had had a relapse. His Worship was informed that she hoped to return to work as a dental nurse in the following year. She had a significant record involving offences of dishonesty. She had breached a Community Based Order and apparently committed this offence while on probation after release from prison in relation to other offences. His Worship noted the appellant's previous offending, commencement of a detoxification program and apparent relapse. He then observed:
"In the circumstances, however, given the continual offending of a similar nature, it seems to me that at this point I have little option other than to impose a further term of imprisonment with respect to this matter, and you will be sentenced to 6 months' imprisonment in relation to the matter."
4 At the hearing of the appeal before me, a number of grounds of appeal were substituted for the very general and imprecise grounds upon which the appellant had relied when she made her application. I do not think it is necessary to set them out in detail. Effectively, it is argued:
(Page 4)
- • his Worship gave too much weight to the prior convictions, in effect treating them as aggravating;
• having regard to the objective seriousness of the offence, and to the fact that imprisonment is a sentence of last resort, this was not an offence which warranted imprisonment;
• his Worship gave insufficient weight to the appellant's plea of guilty; and
• further, material now before the court by way of a pre-sentence report and additional material relating to matters personal to the appellant demonstrates that a sentence of imprisonment is not an appropriate disposition.
5 The first three matters, of course, tend to run together. His Worship's remarks clearly reveal that the appellant's record was of significant concern to him. They might be understood as suggesting that his Worship regarded the previous convictions as aggravating; however, it seems to me unlikely that his Worship did mean to suggest this but, rather, was referring to the appellant's record to demonstrate that she was not able to benefit from any mitigation in relation to a prior lack of offending, and also perhaps to cast doubt on the assertion that she had at any time "beaten" her addiction. The record does involve a number of offences of dishonesty, and it is clear that the appellant's response to supervision had not been satisfactory. However, it is also noteworthy that the appellant was born in 1974 and did not commence to offend until 1998, which adds weight to the submission that the real weakness of character in the appellant's case is not that of a thief but, rather, that of an addict.
6 The range of circumstances likely to come before the courts in relation to an offence of this type is fairly narrow. There may be a greater or lesser degree of premeditation and a greater or lesser degree of concealment or attempt at concealment. On some occasions, the offence may be aggravated by the selection of a particularly vulnerable victim, such as a child or an elderly person. The methods of achieving the stealing are unlikely to vary greatly. However, it is fair to say that, while less serious examples of this type of offence can certainly be imagined, this is not a particularly serious example of its type, there being apparently limited premeditation, a brief attempt at concealment, and no suggestion of any attempt to select items of particular value. By and large, offences
(Page 5)
- of this type committed in those circumstances do not attract sentences of imprisonment. This is particularly the case where, as here, there has been a plea of guilty at the earliest opportunity. Notwithstanding the fact the appellant apparently made no comment initially when spoken to about the offence in the store, she must be given credit for that plea. Having regard to the circumstances of the offence, and to the plea of guilty, the sentence of imprisonment imposed appears to be disproportionate. It may well be, when one considers his Worship's sentencing remarks, that his focus on the appellant's record caused him to overlook those factors.
7 It is my view that in imposing a sentence of imprisonment which was for the maximum term available to him, his Worship's discretion in this case miscarried. It therefore falls to me to quash the sentence imposed and to exercise the discretion afresh. The appellant was in custody in relation to this offence from the date of her conviction on 7 November 2001 until her release on bail by order of this Court on 18 December 2001. That is a significant period of imprisonment. In addition, material has been placed before me to demonstrate that the appellant is now in employment, and that although she still does not demonstrate as much insight as one would wish into her addiction and her offending, there are signs, referred to and discussed in the pre-sentence report, that there have been positive changes in her outlook.
8 The possibility of imposing a Community Based Order with a program requirement is discussed in the pre-sentence report and referred to in passing in the submissions of the appellant. That option was supported by the respondent. However, although the appellant may well benefit from such a program, it appears to me that that too would be a sentence which would be disproportionate to the objective circumstances of the offence, when regard is had to the mitigating factors. To impose a sentence of that kind because it would be for the appellant's own good would be, in my view, effectively to commit the error of sentencing by reference to the appellant's prior record of offending, rather than in relation to the present offence.
9 In the circumstances, I would therefore impose a fine at the lower end of the scale for an offence of this type, to take account of the fact that the appellant has already been significantly punished by her period of imprisonment. I would impose a fine of $200.
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