McNamara v The State of Western Australia
[2010] WASCA 193
•8 OCTOBER 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: McNAMARA -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 193
CORAM: McLURE P
NEWNES JA
MAZZA J
HEARD: 2 SEPTEMBER 2010
DELIVERED : 8 OCTOBER 2010
FILE NO/S: CACR 26 of 2010
BETWEEN: SHANNAN KYLIE McNAMARA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :MARTINO DCJ
File No :IND 1507 of 2009
Catchwords:
Criminal law - Sentence - Stealing as a servant - Manifest excess - Totality - Turns on own facts
Legislation:
Criminal Code (WA), s 378(7)
Sentencing Act 1995 (WA), s 76(3)(b), s 81(3)(b)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr L M Levy SC
Respondent: Ms S H Linton
Solicitors:
Appellant: Havilah Legal
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Collins v The State of Western Australia [2007] WASCA 108
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
Reynolds v The State of Western Australia [2010] WASCA 60
Royer v The State of Western Australia [2009] WASCA 139
Smallbone v The State of Western Australia [2008] WASCA 167; (2008) 187 A Crim R 57
McLURE P: This is an appeal against sentence. The appellant was found guilty after trial of 180 counts of stealing as a servant contrary to s 378(7) of the Criminal Code (WA) (Code).
On 15 February 2010 Martino DCJ sentenced the appellant to 12 months' imprisonment on each of the 180 counts. He ordered the sentence on counts 1 and 2 to be served cumulatively, with the balance of the sentences to be served concurrently resulting in a total effective sentence of 2 years' imprisonment.
There are two grounds of appeal in the appellant's case. They are first, that the sentence of 12 months for each offence and the total sentence of 2 years are manifestly excessive; and secondly, that the sentencing judge 'failed to properly consider a suspended term of imprisonment in relation to each and every count'. It was correctly conceded at the hearing of the appeal that the second ground does not raise an appealable error.
The facts found by the sentencing judge are as follows. The appellant was employed as the manager of a business that sold hair products. The business, owned by HPG Holdings Pty Ltd trading as 'Hair Supplies' (the employer) received cash from the sale of its products. That cash was banked the next business day. On 180 separate occasions in the period from and including 20 July 2005 to 8 March 2007 the appellant stole some of the employer's cash before it was banked. The total amount stolen by the appellant was $56,136.
After the cessation of the appellant's employment at the end of March 2007, the employer did a reconciliation of the cash takings with what had been banked and discovered the theft.
The individuals amounts stolen by the appellant ranged from $20 (count 119) to $1,590 (count 55). The offending can be categorised as follows:
(i)$100 or less - 19 counts
(ii)$101 to $499 - 141 counts
(iii)$500 to $1,000 - 18 counts
(iv)$1,000 or more - 2 counts
The appellant did not give evidence at trial and no evidence was called on her behalf. The defence case at trial was that on instructions from a director of the employer, the appellant put monies aside for the director and that the director denied such an arrangement so the employer would not have to declare the money as income tax.
The appellant was aged 35 at the time of sentencing and had no prior convictions. She was married with three children aged 18, 12 and 10, all of whom lived at home and were dependent upon the income earned by the appellant and her husband. The sentencing judge accepted that the appellant was a loving and caring mother and that imprisonment would have adverse emotional and financial impacts on the family. He also accepted that the appellant through her lawyer had narrowed the issues in dispute at trial. That is not surprising having regard to the nature of the defence case.
Manifest excess
This court can only intervene if the appellant establishes that the sentencing judge made an express or implied material error of fact or law in the exercise of the sentencing discretion.
The appellant's primary claim is that all the terms of imprisonment should have been suspended. That is necessary because suspended imprisonment or conditional suspended imprisonment cannot be imposed if the offender is serving, or is yet to serve, a term of imprisonment that is not suspended: s 76(3)(b) and s 81(3)(b) of the Sentencing Act 1995 (WA). Thus, if the sentencing judge imposed a term of immediate imprisonment for one or more of the 180 offences, suspension of any other term of imprisonment imposed was impossible.
Manifest excess is a claim of implied error evident from the type or length of sentence imposed. As part of the claim of manifest excess, the appellant contended the sentencing judge erred in the approach he took to her sentencing. It was contended the sentencing judge erred in failing to fix an appropriate sentence for each of the 180 offences before considering questions of cumulation, and totality: Pearce v The Queen (1998) 194 CLR 610, 624; Mill v The Queen (1988) 166 CLR 59. The approach referred to in Pearce and Mill expresses a preference for what should be regarded as the orthodox, but not necessarily immutable, practice of fixing a sentence for each sentence before determining issues of cumulation, concurrence or totality: Johnson v The Queen (2004) 78 ALJR 616. Express statutory provisions aside, neither principle nor any of the grounds of appellate review dictates the particular path that a sentencing judge must follow in reasoning to the conclusion that the sentence to be imposed should be fixed as it is. Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the applicable statutory regime: Markarian v The Queen (2005) 228 CLR 357 [27].
The approach taken by the sentencing judge in this case was entirely orthodox. First, he determined that a term of imprisonment was the only appropriate sentence for each offence; he then determined that the appropriate term for each offence was 12 months; next, he addressed issues of cumulation, concurrence and totality; and finally he considered and rejected suspension as inappropriate.
The appellant contended however, that when regard is had to the individual amounts stolen, it could be inferred that the sentencing judge did not take the orthodox approach. Thus the inference of error in approach is based on the fact that the same sentence was imposed for each offence regardless of the amount stolen. I would not draw an inference of error. It was open to the sentencing judge to conclude that the gravity of each count was not materially affected by the amount stolen in circumstances where each offence is an individual manifestation of a broader system implemented by a person entrusted with the conduct of the business.
When determining whether a sentence is manifestly excessive, regard is had to the maximum sentence for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on the scale of seriousness of offences of that type and the personal circumstances of the offender.
The maximum sentence for an offence under s 378(7) of the Code is 10 years' imprisonment. The offence of stealing as a servant is serious, involving as it does the abuse of a position of trust with the consequence that significant weight is accorded to general deterrence with an associated reduction in the weight given to personal antecedents. A consequence of the application of these principles is that ordinarily the appropriate penalty is a term of immediate imprisonment, particularly where the total amount stolen is substantial and involves multiple offences: Collins v The State of Western Australia [2007] WASCA 108 [18]; Smallbone v The State of Western Australia (2008) 187 A Crim R 57 [18] ‑ [30]; Reynolds v The State of Western Australia [2010] WASCA 60.
The circumstances of the offending in this case are serious. The appellant was in a senior position and the offences took place very
regularly over a lengthy period. It was a significant abuse of a position of trust. The only significant mitigating factor is the appellant's prior good character. A sentence of 12 months' imprisonment on each count after a trial and a total sentence of 2 years is in those circumstances well within the range of a sound sentencing discretion; indeed it is towards the lower end of the scale. Further, the sentencing judge was correct to conclude that, having regard to all sentencing considerations, suspension of the terms of imprisonment was not appropriate.
Even if there was an error in the approach taken to the individual sentences, it would have no effect on the total, or type of, sentence imposed. In those circumstances, I would decline to intervene: Royer v The State of Western Australia [2009] WASCA 139 [115], [116].
I would dismiss the appeal.
NEWNES JA: I agree with McLure P.
MAZZA J: I agree with McLure P.
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