Police v Sherratt - [2015] SASC 43

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v SHERRATT
[2015] SASC 43
Judgment of The Honourable Justice Sulan
24 March 2015
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT - SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE - GENERAL PRINCIPLES
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - POWER TO BRING APPEAL
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEALS BY CROWN - PRINCIPLES APPLIED BY APPELLATE COURT TO CROWN APPEALS
The respondent pleaded guilty to the theft of $5000 cash from her employer, Beyond Bank. The respondent was employed in a senior position of trust. The respondent was released upon a bond to be of good behaviour for 12 months. No conviction was recorded. The Police appealed against the decision not to record a conviction.
Held: Appeal allowed. The order of the Magistrate varied by recording a conviction.
Criminal Law Consolidation Act 1935 (SA) s 134(1); Criminal Law (Sentencing) Act 1988 (SA) s 16, s 39, referred to.
Everett v The Queen (1994) 181 CLR 295; Police v Cadd (1997) 69 SASR 150, discussed.
R v Barrick (1985) 81 Cr App R 78; R v Briese (1996-1997) 92 A Crim R 75; Attorney-General v Smith [2002] TASSC 10, considered.

POLICE v SHERRATT
[2015] SASC 43
Magistrates Appeal: Criminal

SULAN J: This is an appeal by the Police against sentence. The respondent, Vanessa Dawn Sherratt, pleaded guilty to one count of dishonestly taking $5000, the property of her employer Beyond Bank, without consent contrary to s 134(1) of the Criminal Law Consolidation Act 1935 (SA). The respondent was unrepresented. She was placed on a bond in the sum of $500, without conviction, to be of good behaviour for a period of 12 months.
It was unclear from the Magistrate’s reasons whether the discretion to not record a conviction was exercised pursuant to ss 16 or 39 of the Criminal Law (Sentencing) Act 1988 (SA), although the imposition of a bond requiring the respondent to appear before the court for sentence if so required suggests s 39 was used.
Section 39 provides:
39—Discharge without sentence on defendant entering into bond
(1)Where a court finds a person guilty of an offence the court may, if it thinks that good reason exists for doing so, discharge the defendant with or without recording a conviction and without imposing a penalty, upon condition that the defendant enter into a bond—
(a) to be of good behaviour; and
(ab) to comply with the other conditions (if any) included in the bond; and
(b) if the terms of the bond so require, to appear before the court for sentence, or conviction and sentence, if the defendant fails during the term of the bond to comply with a condition of the bond.
(1a) However, if the defendant is not to be so required to appear before the court, the…

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 Police v Sherratt

Details

AGLC: Police v Sherratt [2015] SASC 43
Case: [2015] SASC 43
Decision Date: 24 March 2015

CaseChat Overview and Summary

In Police v Sherratt, the appellant, the Crown, sought to appeal against a sentence imposed on the respondent, Sherratt, who had been found guilty of theft. The Crown challenged the decision of the primary judge to release Sherratt on a bond without conviction, arguing that the sentence did not adequately reflect the seriousness of the offence and the need for public protection. The central issue before the court was whether the primary judge's decision to forgo recording a conviction was appropriate given the nature of the theft offence committed by Sherratt.

The court examined the principles guiding the imposition of sentences in theft cases, particularly when the offender has no prior convictions and where the offence was committed under circumstances that did not warrant severe punishment. The Crown's appeal hinged on the argument that the primary judge had not sufficiently considered the public interest in recording convictions for serious offences such as theft. The court also considered the respondent's personal circumstances, including her current employment, which could be adversely affected by a recorded conviction.

In determining the appeal, the court weighed the public interest in knowing about the respondent's offending against her personal circumstances. The court held that while the respondent's current employer was unaware of her criminal conduct, the nature of the theft offence warranted a conviction to be recorded to protect the public interest. The court found that the primary judge's decision to release Sherratt without a conviction was not justified in this instance. Consequently, the appeal was allowed, and the court ordered that a conviction be recorded for the offence. The bond under which Sherratt was released remained in force in other respects.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The respondent’s current employer is not aware of this offending, so the recording of a conviction may jeopardise her current employment. That is an unfortunate consequence of the position the respondent has created.Conclusion The decision whether to record a conviction involves a consideration of the public interest in the right to know about a person’s offending, the individual’s personal circumstances and the effect the recording of a conviction will have upon that individual. Where a serious offence has been committed, there is a greater need for the public to know of the offending. Those who deal with the respondent in the future have a legitimate right to know about her conduct. Not to record a conviction in the case of an offence such as that which the respondent committed would only be justified in the most exceptional circumstances. In my judgment, this was not such a case. The appeal is allowed. The order that the respondent be released upon a bond without conviction is varied and a conviction for the offence is to be recorded. In other respects, the bond is to remain in force.

Ratio Decidendi

Legal Principle Established

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