Lynch v Turner

[1999] TASSC 88

[1999] TASSC 88

CITATION:              Lynch v Turner [1999] TASSC 88

PARTIES:  LYNCH, Terrence Michael
  v
  TURNER, Paul John

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 14/1999
DELIVERED ON:  6 August 1999
DELIVERED AT:  Launceston
HEARING DATE:  6 August 1999
JUDGMENT OF:  Cox CJ

CATCHWORDS:

[Edited reasons given orally]

REPRESENTATION:

Counsel:
           Appellant:  J Kitto
           Respondent:  J Ransom
Solicitors:
           Appellant:  Beeton & Mansell
           Respondent:  Director of Public Prosecutions

Judgment  Number:  [1999] TASSC 88
Number of paragraphs:  7

Serial No 88/1999

File No LCA 14/1999

MICHAEL TERRENCE LYNCH v PAUL JOHN TURNER

REASONS FOR JUDGMENT  COX CJ
(DELIVERED ORALLY)  6 August 1999

1. The applicant seeks to set aside a penalty of one month's imprisonment imposed in June this year for one count of stealing.  The offence was one of shoplifting and it involved the unlawful removal from a department store of a pair of sandshoes valued at $109.  The applicant was observed concealing them under his jacket and walking out of the shop without paying for them.  He was immediately apprehended and found in possession of them.  Having been caught red-handed he made an immediate admission and he pleaded guilty in the court of petty sessions.  He also pleaded guilty to two other counts, one of trespass and one of injury to property. 

1. In sentencing him the learned magistrate remarked "these offences took place and I note that you have a history of offending, although for offences of burglary and stealing, and I also note that you apparently, from what your counsel has said, have been making strenuous efforts to amend your ways.  However, notwithstanding that there appears to be a consistency of offending, and these particular offences unfortunately cannot be viewed other than as a continuation of a general pattern of offending."  Criticism is made of these comments. 

1. The applicant has a significant record of offences of dishonesty, repeated notwithstanding the imposition of penalties by the courts.  I leave out of account matters in the children's court but note that in July and October 1994 he was convicted of stealing twice, and placed on probation for 12 months from October 1994.  Seven days later he committed a burglary and stealing for which he was before the court in April 1995, along with two other matters.  He received 119 hours of community service.  Seventeen months later, in September 1996, he again stole twice and in the following February, he was convicted and fined in two separate court appearances in relation to those particular offences of stealing.  In March 1997, he was given a wholly suspended sentence of six weeks' imprisonment for burglary and stealing in July 1995, and another four weeks' imprisonment, suspended, for an offence of burglary and stealing in December 1996.  In March 1997, he received yet another four weeks' imprisonment, wholly suspended, for another burglary and stealing, which had occurred in February 1995, and in October 1997, 21 hours of community service for stealing in March 1997. 

1. This offence occurred in November 1998 while he was still subject to the condition of good behaviour on which the March 1997 term had been suspended.  In my view, the criticism is unfounded.  The learned magistrate was not saying that all offences were a continued pattern of offences of burglary and stealing.  He observed that the three further offences showed a continuation of a general pattern of offending, and, in my view, this was fair comment.

1. It is submitted that the penalty was disproportionate to the offence and that he was really being sentenced on his prior record and hence punished for past offences.  In Veen v R [No 2] (1987 - 1988) 164 CLR 465, the correct principle is expressed in the headnote as follows:

"The previous criminal history of an offender may be taken into account in determining a sentence, but it cannot be given such weight as to lead to a penalty which is disproportionate to the gravity of the offence.  The history is relevant to show whether the offence is an uncharacteristic aberration or whether in it the offender has manifested a continuing attitude of disobedience of the law.  In the latter case, retribution, deterrence and protection of society may indicate that a more severe penalty is warranted.  It is legitimate to take account of the previous history when it illuminates the moral culpability of the offender in the instant case or shows his dangerous propensity or a need to impose condign punishment to deter him and other offenders from committing similar offences."

That, of course, was a much more serious case, but the principle remains good. 

1. While shoplifting is, in most cases as here, one of less gravity than other forms of stealing, it is nonetheless a criminal offence, and the public are entitled to expect that the courts in appropriate circumstances, will impose deterrent sentences.  In Cook v Dillon, B1/1985, Neasey J, dealt with a notice to review a similar sentence for the shoplifting of goods to a total value of less than $4.  He observed that the value was entirely minimal and that although the seriousness of the offence does not depend entirely on the value of the things stolen, nevertheless the value is a matter of distinct importance.  Here the value is significantly greater, over $100 more, and even allowing for inflation, it is still a significantly higher amount.  Neasey J, specifically said in Cook v Dillon (supra), "I do not wish to say that a short sentence of imprisonment would never be justified in such a case as this, but I have to exercise afresh the discretion of imposing penalty, and I do not think a sentence of imprisonment is appropriate here."  Likewise, it should not be thought that a sentence of one month's imprisonment for shoplifting goods worth $100 cannot be justified on the basis of proportion.

1. In the present case, the learned magistrate noted the record of the applicant, to which I have referred.  He rightly observed that community service orders and suspended sentences had not deterred him from offending.  He was a man of 22 years and certainly had had ample warning from the courts not to offend.  The learned magistrate had the task of imposing an appropriate penalty.  It is not for me to substitute a different penalty unless it is clearly established that the learned magistrate was in error.  The penalty was severe, but not, in my opinion so disproportionate to the seriousness of the offence that it is erroneous on that account.  The applicant's prior record was such that in accordance with the principles laid down in Veen's case, the deterrent aspect of punishment justified the imposition of a penalty towards the top of the range.  I cannot say that the learned magistrate was erroneous in his assessment that such a penalty was appropriate in the circumstances of this case, and accordingly the appeal must be dismissed.