Lowe v Harris

[1989] TASSC 85

Serial No. B7/1989
List “B”

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Lowe v Harris [1989] TASSC 85; B7/1989

PARTIES:  LOWE
  v
  HARRIS

FILE NO/S:  LCA 147/1988
DELIVERED ON:  6 February 1989
JUDGMENT OF:  Wright J

Judgment Number:  B7/1989
Number of paragraphs:  9

Serial No B9/1989
File No LCA 147/1989

LOWE v HARRIS

REASONS FOR JUDGMENT  WRIGHT J

6 February 1989

1. This motion to review seeks to impugn orders made in the Court of Petty Sessions at Hobart on 7 December 1988 whereby the learned magistrate, upon the respondent's plea of guilty to complaint No 15585/1988 alleging three charges of stealing contrary to s234 of the Criminal Code, 14 charges of obtaining goods by a false pretence, contrary to s250 of the Code, 14 charges of forgery contrary to s278 of the Code, and 14 charges of uttering contrary to s279 of the Code, ordered that in respect of each charge the respondent be placed on a probation order to be of good behaviour for a period of six months and to come up for conviction and penalty if called upon within that period of time.

1. The first matter of complaint related to theft by the respondent of $100 from Mr Edward Clark, a patient at the Royal Hobart Hospital on the 21 October last year. At that time the respondent was aged 20 years and was a third year trainee nurse employed by the hospital. She was in the casualty section of the hospital and had taken possession of Mr Clark's clothing and personal effects after he disrobed for examination. He saw her acting suspiciously and later found $100 was missing from his wallet. He complained to the police and they became involved.

1. Whilst being interviewed in relation to this incident the respondent confessed that on 23 August and 24 August 1987 she took G P Fitzgerald Ltd credit cards from the property of two other patients at the hospital. She forged the card holders' signatures and uttered the forged forms to sales assistants at Fitzgeralds to obtain items of clothing and cosmetics to a value of $1189.88. She was charged with stealing the credit cards. The charges of false pretences, forgery and uttering resulting from the use of those cards were all committed on 24 and 25 August 1987.

1. Plainly enough therefore, although committed over a relatively short time span of three days, the credit card offences, if such I can call them, cannot properly be regarded as a single impulsive episode.

1. The applicant made a number of specific complaints relating to the manner in which the learned magistrate analysed and characterized the respondent's conduct in relation to these offences and without staying to deal individually with those criticisms, it suffices for present purposes to say that in general terms I regard the criticisms as substantially justified but not of themselves demonstrating any particular error. However, the ground upon which a review of the penalties is sought is that those penalties, viewed as a whole were manifestly inadequate.

1. Mr O'Farrell for the respondent referred me to Cole v Eiszele No 33/1979 and Stuart v Smith No 22/1981 but as these decisions deal specifically with grounds of appeal not raised upon this motion, they are in my opinion, of limited value in disposing of the present matter. I was referred also to the respondent's character and antecedents including details of her age, employment, family background and support and references from concerned family friends. These matters were all before the learned magistrate of course.

1. The respondent was aged 19 years only when she committed the first series of offences relating to the credit cards. She was suspended from her employment as a nurse following the final offence, and although no mention was made as to whether or not she has now been dismissed, it is probably legitimate I think to infer that this has occurred. I am also prepared to infer that the sum of money paid into her solicitor's hands to reimburse Fitzgeralds for her fraudulent behaviour has in fact been paid over to that company. Against the background of the respondent's prior good character and industrial record, these are all matters which may properly be taken into account in mitigating the penalties to be imposed.

1. Nonetheless, I am left with the firm conclusion having read the learned magistrate's comments in passing sentence, that he significantly undervalued the seriousness of the respondent's conduct in taking the course which she did. On three separate and distinct occasions she committed a grave breach of trust in stealing property belonging to patients at the hospital. In August 1987 she fraudulently utilized the stolen property to her own material advantage. Her awareness of guilt caused her to dispose of some of the property but she continued to use some of it and her sense of remorse did not prevent her from re–offending in October of last year.

1. In my opinion, by refraining from conviction and imposing unsupervised probation orders for a total period of six months only, the learned magistrate fell into error which vitiates his orders. Such penalties as he imposed are in my opinion, appropriate normally only in cases of dishonesty of minor gravity such as those of a single instance of impulsive shop lifting. The present offences, of course, are in a different league altogether. In my opinion therefore, the motion to review should be allowed and the orders made by the learned magistrate should be quashed and I order accordingly. Before imposing alternative penalties upon the respondent, however, I think it is highly desirable that I should have a report from the Probation Service. I propose therefore to admit the respondent to bail pending the preparation of that report. As I have power under s110 of the Justices Act to exercise (inter alia) any power that might have been exercised by the learned magistrate in relation to whose order the motion to review is made, I shall make a bail order rather than requiring the respondent to enter into a recognizance. The bail order will require her to appear for sentence at 10am on Tuesday 21 February. In fairness to the respondent I will indicate now that I do not intend imposing an immediate custodial sentence, nor even a suspended term of imprisonment. In other respects however, I am keeping my options open and my final decision will be influenced, I have no doubt, to a very large extent by the contents of the pre–sentence report. With this in mind, the reporting officer will be requested, amongst other things, to advise me as to the respondent's suitability to perform community service.