Lefever & Smith v White
[2002] TASSC 19
•18 April 2002
[2002] TASSC 19
CITATION: Lefever & Smith v White [2002] TASSC 19
PARTIES: LEFEVER, Peter James
SMITH, Alan John
v
WHITE, Graham Ross
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 30/2001
LCA 31/2001
DELIVERED ON: 18 April 2002
DELIVERED AT: Launceston
HEARING DATE/S: 18 April 2002
JUDGMENT OF: Evans J
CATCHWORDS:
Criminal Law - Appeal and new trial and inquiry after conviction - Appeal and new trial - Appeal against sentence - Grounds for interference - General principles - Sentence manifestly excessive or inadequate - Fine.
Justices Act 1959 (Tas), s72B(4) and s76.
Police Offences Act 1935 (Tas), s43(2).
Sentencing Act 1997 (Tas), s43 and s68(1).
Reeves v Ranson [1999] TASSC 52, referred to.
Aust Dig Criminal Law [1003]
REPRESENTATION:
Counsel:
Applicants: In Person
Respondent: J P Ransom
Solicitors:
Applicants: In Person
Respondent: Director of Public Prosecutions
Judgment ID Number: [2002] TASSC 19
Number of paragraphs: 9
Serial No 19/2002
File No LCA 30/2001
LCA 31/2001
PETER JAMES LEFEVER and ALAN JOHN SMITH v GRAHAM ROSS WHITE
REASONS FOR JUDGMENT EVANS J
18 April 2002
When the applicants were together in the Gaming Room at the Launceston Country Club Casino, the applicant, Alan Smith, observed a wallet on the floor near some people playing poker machines. He picked up the wallet and he and the applicant, Peter Lefever, went to the foyer of the Casino where they rummaged through the wallet which contained $610. Without making any attempt to locate the wallet's owner they went to their vehicle, split the money and left, discarding the wallet as they drove away.
When approached by police in relation to their conduct they made full admissions. They were charged with stealing the wallet and each applicant pleaded guilty when he appeared in the Court of Petty Sessions to answer the charge. In the course of the sentencing hearing the court was informed that Mr Smith was a pensioner and had no prior convictions. As to Mr Lefever the court was provided with a record of his prior convictions which include traffic offences, two breathalyser offences and a conviction for assault. The court was informed that Mr Lefever was a sole parent of two small children and was on a pension.
Neither of the applicants were legally represented at the sentencing hearing. Each applicant was fined $2,000. After announcing the sentence the learned magistrate inquired of the applicants as to how long they needed to pay the fine. Mr Smith indicated three months and was granted that time. Mr Lefever said he needed at least 12 months. The learned magistrate's response was, "You're not getting it. It's meant to hurt and it's going to. Think again, tell me how long you need?" Upon Mr Lefever reducing his request to six months he was granted that period of time to pay.
Each applicant has appealed against the sentence imposed on him on the ground that it is manifestly excessive and that the learned magistrate did not pay proper regard to the applicant's prior good record. In addition, Mr Lefever appeals on the ground that the learned magistrate failed to pay proper regard to his personal circumstances and ability to pay.
In Reeves v Ranson [1999] TASSC 52, Crawford J at par18, observed:
"The determination of the appropriate amount of a fine in a particular case is a matter of judicial discretion, and not lightly to be overturned by an appellate court. Its exercise depends upon the circumstances of the case, including not only the circumstances of the offence but also the particular circumstances of the offender. It has been held in many cases that the appropriate quantum of a fine should depend in part upon the offender's reasonable capacity to pay. So in Broughton v Lowe [1979] Tas R 309 (NC), unreported 20/1979, Neasey J said that the imposition of a fine which is beyond the offender's reasonable capacity to pay is neither just nor rational and in Maynard v White A108/1994 at 1, Zeeman J referred to the general principle that there ought not be imposed upon an offender a fine which is beyond that offender's reasonable capacity to pay. See also Kaye v Vagg (No 2) (1984) 11 A Crim R 127 and Devlyn v Lowe A31/1980."
After referring to authorities on the circumstances in which the Court has a duty to inform itself as to matters relevant to the exercise of the sentencing discretion his Honour said at par21:
"It may well be a sound argument, in the circumstances of some cases, that a sentencer is in error by imposing a fine without inquiring about the financial circumstances of the offender. An obvious example where that might be the case is one where the offender is not represented by counsel and there is clearly insufficient information concerning the offender's circumstances to allow the sentencing discretion to be properly exercised. However, that cannot be said about this case. Prima facie the applicant was a businessman who had engaged counsel to make a plea in mitigation on his behalf.
In my view, in the circumstances of this case, it was incumbent upon the learned magistrate to consider the financial circumstances of each applicant before imposing a fine. Each applicant had pleaded guilty to a charge of stealing a leather wallet and monies to an approximate value of $660, the property of Helen Maree McGill. Pursuant to the Sentencing Act, s68(1), the learned magistrate was obliged, subject to being satisfied as to the quantification of Miss McGill's loss, to make compensation orders against the applicants for the amount of the loss. As the court was required to address the question of making a compensation order in favour of Miss McGill, the effect of the Sentencing Act, s43, is that before the court imposed a fine it had to consider whether each applicant had sufficient means to meet both the fine and the compensation order. That section requires the court to give preference to a compensation order although it may impose a fine as well. The learned magistrate erred in failing to advert to any of these matters and for this reason each appeal should be allowed.
I have given consideration to the contention that the sentences were manifestly excessive. As the applicants were charged with stealing less than $5,000 and acquiesced to having that charge tried in the Court of Petty Sessions the maximum term of imprisonment that could have been imposed on them was 12 month's imprisonment. There is no statutory limit on the fine that could be imposed on them. Before the Sentencing Act came into force on 1 August 1998 the combined effect of the now repealed Justices Act, s72B(4) and s76, was that the maximum fine that could have been imposed for the offence committed by the applicants was $2,000. The nature of the offence committed by the applicants is, of course, significant. It can properly be equated with the offence of a person applying found property to his or her own use in breach of the Police Offences Act 1935, s43(2). The maximum penalty for that offence is a fine of $200. I have examined the sentences imposed for stealing recorded on the Supreme Court's sentencing database since 1989. I pay no regard to the modest fines imposed on youthful offenders and for crimes such as stealing electricity which bear little relationship to the offence committed by the applicants. The highest fine levied in the Supreme Court during this period for the crime of stealing is a fine of $2,000 imposed on an employee for four counts of stealing from his employer. As that offence involved a breach of trust it is to be expected that it would attract a heavy fine. Last year a fine of $1,500 was imposed on a man who stole two motor cycles valued at $6,000. In no other instance since 1989 has a fine of in excess of $1,000 being imposed in respect of a charge of stealing. Against this background I conclude that the fine of $2,000 imposed on each applicant for the theft of $660 was manifestly excessive.
Each appeal is allowed.
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