Pain v Forbes - [2000] WASCA 260

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: PAIN -v- FORBES [2000] WASCA 260

CORAM: MILLER J

HEARD: 4 SEPTEMBER 2000

DELIVERED : 15 SEPTEMBER 2000

FILE NO/S: SJA 1117 of 2000

BETWEEN: JUDITH JOSEPHINE PAIN
Appellant
AND
GRANT JAMES FORBES
Respondent

Catchwords:

Criminal law - Sentence - Stealing as a servant - Full restitution of substantial sum - No prior convictions - Antecedents including long history of marital problems - Remorse and contrition - Whether sentence of 3 years' imprisonment excessive - Turns on own facts

Legislation:

Justices Act 1902, s 196(1)(b)

Result:

Appeal allowed
Sentence of 3 years' imprisonment reduced to 2 years

Representation:

Counsel:

Appellant: Mr H Sklarz
Respondent: Ms M J Garnett

Solicitors:

Appellant: Henry Sklarz
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998
Carreras v R (1992) 60 A Crim R 402
H v R (1995) 81 A Crim R 88
House v R (1936) 55 CLR 499
R v Barrick (1985) 81 Cr App R 78
R v Ottobrino [1999] WASCA 207
Ratten v The Queen (1974) 131 CLR 510
The Queen v Hicks, unreported; CCA SCt of WA; Library No 970164; 9 April 1997

Case(s) also cited:

Australian Coal & Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621
Greer v R, unreported; CCA SCt of WA; Library No 960173; 1 April 1996
Hill v The Queen (1988) 166 CLR 59
Lewis-Harrison v R, unreported; CCA SCt of WA; Library No 930291; 27 May 1993
Mill v The Queen (1988) 166 CLR 59
R v Licastro, unreported; CCA SCt of VIC; VSCA 104; 16 June 1999
R v Nagas (1995) 5 NTLR 45 (CCA)
R v Piercey [1971] VR 647
R v Sivandran, unreported; CCA SCt of WA; Library No 960154; 22 March 1996
R v Wilkinson (1996) 85 A Crim R 353
Visser v Smart, unreported; SCt of TAS; 151 of 1998; 10 December 1998

MILLER J: The appellant was charged on 8 December 1999 in the Court of Petty Sessions, Bunbury that between 1 November 1996 and 1 October 1999 at Capel she committed 36 offences of stealing as a servant. The charges were that on various dates within that period she being the servant of Capel Excavations Pty Ltd stole a sum of money (ranging in amount from $1000 to a maximum of $23,000) the property of Capel Excavations Pty Ltd. After a number of remands in the Court of Petty Sessions at Bunbury the appellant came before a Magistrate on 19 June 2000 when she pleaded guilty to all charges. On that day she was sentenced on charges 1 to 21 inclusive to a period of 12 months' imprisonment, to be served concurrently one with the other, and on charges 22 to 36 inclusive to a sentence of 2 years' imprisonment, to be served concurrently one with the other but cumulative on the sentences imposed in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pain v Forbes

Details

AGLC: Pain v Forbes [2000] WASCA 260
Case: [2000] WASCA 260
Decision Date: 15 SEPTEMBER 2000

CaseChat Overview and Summary

Pain v Forbes involved a criminal sentencing matter before the Supreme Court of Australia. The appellant, Pain, was convicted of stealing a significant sum of money while employed as a servant. The trial judge sentenced Pain to three years' imprisonment, despite Pain's lack of prior convictions and the substantial restitution made to the victim. Pain appealed the severity of the sentence, arguing it was excessive in the circumstances.

The legal issues before the court were whether the sentence imposed was appropriate and whether the trial judge had given adequate consideration to the mitigating factors. The court had to balance the need for punishment and deterrence against the appellant's personal circumstances, including a history of marital issues and expressions of remorse and contrition. The court needed to determine if the sentence was manifestly excessive when considering the totality of the circumstances.

The court found that the sentence of three years' imprisonment was indeed excessive. The trial judge had not sufficiently weighed the mitigating factors, particularly the appellant's remorse and the full restitution made to the victim. The court considered the appellant's personal circumstances, including the history of marital problems, and the lack of prior convictions. Ultimately, the court concluded that a lesser sentence would have been appropriate, taking into account the totality of the circumstances. The appeal was allowed, and the sentence was reduced to a term of imprisonment that reflected the court's re-assessment of the appropriate punishment.

Orders