Murfet v Crawford

[1991] TASSC 153

Serial No B39/1991
List "B"

COURT:                 SUPREME COURT OF TASMANIA

CITATION:            Murfet v Crawford [1991] TASSC 153; B39/1991

PARTIES:  MURFET, Kevin Geoffrey
  v
  CRAWFORD, Mark Anthony

FILE NO/S:  LCA 16/1991
DELIVERED ON:  1 August 1991
JUDGMENT OF:  Slicer J
CATCHWORDS

Sentence — Proportionate to gravity of offence — Considerations affecting use of suspended sentence.

Judgment Number:  B39/1991
Number of paragraphs:  7

Serial No B39/1991
File No LCA 16/1991

KEVIN GEOFFREY MURFET
v MARK ANTHONY CRAWFORD

REASONS FOR JUDGMENT  SLICER J

1 August 1991

1. The question raised by this Motion to Review is whether, in the event of the commission of a crime involving a trivial amount of money, a court is entitled to impose a sentence of imprisonment (albeit suspended) in circumstances where the offender has a relatively minor record.

1. The contention is that the sentence was clearly disproportionate to the gravity of the offence and should not, in any case, be more than that commensurate with the offence whatever be the previous record of the offender. The fact that the sentence is then suspended does not affect the proposition.

1. I agree with that contention and adopt the comments of Nettlefold J in R v Percy [1975] Tas SR 62 at pp72–73 when he said:

"A suspended sentence is the penultimate weapon in the extensive armoury of graduated penalties available ..... for the punishment of crime. Respectfully, I subscribe entirely to the view that a suspended sentence should not be imposed as a 'soft option' when 'the court is not quite certain what to do', or 'when' but for the power to give a suspended sentence, a probation order was the proper order to make"'.

His Honour went on to subscribe to a further quotation from the judgment in O'Keefe v The Queen (1969) 53 Cr App R 91 in which it was said:

"Therefore, it seems to the Court that before one gets to a suspended sentence at all, a court must go through the process of eliminating other possible courses such as absolute discharge, conditional discharge, probation order, fine, and then say to itself: this is a case for imprisonment, and the final question, it being a case for imprisonment: is immediate imprisonment required, or can I give a suspended sentence?"

1. In this case the applicant was charged jointly with his wife with theft from a shop. His theft amounted to four rolls of sticky tape, one chocolate bar and one butter–scotch roll to a value less than $3. His record of convictions contained four previous court appearances as a result of offences of dishonesty, such appearances being in 1973, 1983, 1986 and 1989. In October 1989 the applicant was placed on a twelve month good behaviour bond following the improper and undisclosed use of his wife's tax cheque which resulted in her obtaining a fresh cheque. It was put to the court that he was an invalid pensioner aged 41 who suffered from a number of disabilities including alcohol induced brain damage. At the time of the offence, the family was subject to stress due to family and financial difficulties and consequent upon that the applicant was in receipt of medication. At the time of the taking, the family was under financial strain and it was put to the court that the applicant, although he paid for other items, took the items as extras since they were outside of the household budget.

1. None of the above was subject to challenge. As such given the value of the property taken and the circumstances surrounding the taking, it could not be said that a term of imprisonment was a valid sentencing option open to the Magistrate. It is difficult to ascertain the process whereby the Magistrate exercised this option since he gave no reasons for his determination of penalty. Thus, it could not be said that he regarded a suspended sentence as a method of achieving a subjective deterrence in that it would operate to keep the applicant away from further temptation.

1. One is left with the impression that he concentrated on the record more than upon the offence. (See Cook v Dillon Tasmanian Unreported B1/1985). In my view, a sentence of imprisonment would rarely, if ever, be warranted in a case of theft involving items valued under $3. The fact that the sentence was suspended does not alter that position. (See Radley v White Tasmanian Unreported 25/1982 and Cook v Dillon (supra)). It follows that the Magistrate erred in his decision and, accordingly, ground 1 of the Motion to Review is upheld. I do not believe that ground 2 of the Motion has merit in that, if a term of imprisonment was a real option available to the Magistrate, it could not be said that the different treatment afforded to the applicant's wife was so disparate as to vitiate the sentencing process. Ground 3 is, in reality, tied up with ground 1.

1. I do not propose remitting the matter back to the Court of Petty Sessions and will proceed to hear counsel as to the appropriate penalty which should be imposed.