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 court cannot impose any conditions under subsection (1)(ab).
Background
The respondent had been employed in the position of bank manager of the Gawler branch of Beyond Bank for approximately three-and-a-half years. The respondent stole $5000 in cash from the bank safe. In order to disguise her crime, the resopndent prepared a false deposit slip from ANZ Bank to make it appear as if the $5000 cash had been withdrawn lawfully from an ANZ account. The cash was then deposited into a bank account jointly held with her husband. There is no suggestion that Mr Sherratt was involved in, or aware of, the theft.
An audit conducted by Beyond Bank revealed the $5000 cash was missing. The missing cash was traced back to the respondent. The police then spoke to the respondent. She admitted stealing the money. Full restitution was made with money borrowed from the respondent’s mother-in-law. This loan has also been repaid. The respondent lost her employment at the bank.
The respondent had no relevant offending history. She pleaded guilty at her first appearance in court.
Personal circumstances
At the time of the offending, the respondent had been married for 22 years. There are three children of the marriage, at the time aged 20, 19 and 12. At the relevant time two of the children lived at home and were financially dependent on the respondent and her husband.
The respondent made submissions as to her personal circumstances at the time surrounding the offending. Mr Sherratt ran a side business of buying, restoring and then selling used cars. The respondent, who managed the family finances, submitted that she was under considerable financial strain. Part of the reason for the financial difficulties was as a result of the respondent’s husband purchasing and selling cars. The respondent confronted her husband about the family financial strains. At the time, he was not receptive to her concerns.
Despite the respondent’s expressed concerns, just prior to the offending, her husband sold a car for $31 000 and the next day purchased another car for $36 000. The respondent was concerned about the $5000 shortfall. She was reluctant to speak to her husband because of his earlier attitude. She therefore resolved to take the money from Beyond Bank in order to cover the temporary deficit in their finances. She intended to repay the money when able to do so.
The Magistrates findings
In considering whether to record a conviction, the Magistrate stated:
Ms Sherratt I find from your guilty plea and from the thrust of your submissions on mitigation as to penalty, particularly the explanations you have forwarded to me as to why you came to commit this offence, as indicative of your contrition and remorse in the commission of this offence. I am of the view that you are a person who is unlikely to commit criminal offending again, and it is in this context that I am confident that there should be no conviction recorded against. The reason I also specifically say that is because you have to your credit got back into the work force and continue to be a productive member of the community at large. And even taking that on a general and personal deterrence consideration I think in your case a personal deterrence approach would suffice.
The appeal
The appellant submits that the Magistrate’s sentencing discretion has miscarried. Counsel for the appellant contends that the circumstances of the offending were too serious to justify the Magistrate exercising the discretion to not record a conviction. No issue is taken with the decision to release the respondent on a bond. The offence involved stealing a substantial amount of money by a person who was in a senior position of trust employed by a bank, and who took steps to attempt to cover up her offending. Counsel submits that the Magistrate failed to give adequate consideration to the need for personal and general deterrence. The appellant contends the sentence in this case is so manifestly inadequate that it fails to maintain the sentencing standards and therefore amounts to an error in principle. The appellant contends that a conviction should be recorded.
Principles of prosecution appeals
In Everett v The Queen,[1] the majority of the High Court (Brennan, Deane, Dawson and Gaudron JJ) stated:[2]
Such a jurisdiction has become commonplace throughout this country and the common law world. Nonetheless, in its exercise, a court of criminal appeal must, in the absence of clear statutory direction to the contrary, recognize that there are strong reasons why the jurisdiction to grant leave to the Attorney-General to appeal against sentence should be exercised only in the rare and exceptional case. An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed. That being so, a “court entrusted with the jurisdiction to grant or refuse such leave should give careful and distinct consideration to the question whether the Attorney-General has discharged the onus of persuading it that the circumstances are such as to bring the particular case within the rare category in which a grant of leave to the Attorney-General to appeal against sentence is justified”. In determining whether that question should be answered in the affirmative, a court of criminal appeal should be guided by the following comment of Barwick CJ in Griffiths v. The Queen:
“an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.”
The reference to “matter of principle” in that passage must be understood as encompassing what is necessary to avoid the kind of manifest inadequacy or inconsistency in sentencing standards which Barwick CJ saw as constituting “error in point of principle”.
In Police v Cadd,[3] Doyle CJ, with whom Duggan and Mullighan JJ agreed, observed that the principles earlier referred to in Everett apply to appeals from the Magistrates Court.[4]
[1] (1994) 181 CLR 295.
[2] (1994) 181 CLR 295, 299-300 (citations omitted).
[3] (1997) 69 SASR 150.
[4] Police v Cadd (1997) 69 SASR 150, 157.
I turn to consider whether “rare and exceptional” circumstances are present in this case. The respondent was a branch manager. This position involves a high level of trust. The breach of that trust through the theft of the $5000 was significant. In R v Barrick,[5] The Lord Chief Justice, Farquharson and Tudor Price JJ in the Court of Appeal (UK), in delivering a guideline judgment in breach of trust cases, observed:[6]
The type of case with which we are concerned is where a person in a position of trust, for example, an accountant, solicitor, bank employee or postman, has used that privileged and trusted position to defraud his partners or clients or employers or the general public of sizeable sums of money. He will usually, as in this case, be a person of hitherto impeccable character. It is practically certain, again as in this case, that he will never offend again and, in the nature of things, he will never again in his life be able to secure similar employment with all that that means in the shape of disgrace for himself and hardship for himself and also his family.
That description is analogous to the offending in this case, although that case dealt with a breach of trust involving a defalcation of £9000 over 21 months. The respondent has no antecedents, and is unlikely to offend again. The respondent accepted that she will never again find employment within the financial industry. However, this alone does not justify leniency in a case of theft from an employer.
[5] (1985) 81 Cr App R 78.
[6] (1985) 81 Cr App R 78, 81.
A breach of trust is considered an aggravating feature of theft. In Barrick, the Court found:[7]
[t]he following are some of the matters to which the Court will no doubt wish to pay regard in determining what the proper level of sentence should be: (i) the quality and degree of trust reposed in the offender including his rank; (ii) the period over which the fraud or the thefts have been perpetrated; (iii) the use to which the money or property dishonestly taken was put; (iv) the effect upon the victim; (v) the impact of the offences on the public and public confidence; (vi) the effect on fellow-employees or partners; (vii) the effect on the offender himself; (viii) his own history; (ix) those matters of mitigation special to himself such as illness; being placed under great strain by excessive responsibility or the like; where, as sometimes happens, there has been a long delay, say over two years, between his being confronted with his dishonesty by his professional body or the police and the start of his trial; finally, any help given by him to the police.
The breach of trust in the present case must be seen as an aggravating factor. In my view, this is a “rare and exceptional” case in which a prosecution appeal against the leniency of a sentence must succeed.
[7] (1985) 81 Cr App R 78, 82. Cited with approval in Bright v Police [2008] 101 SASR 519, 524-5; Birch v The Queen (1993) 69 A Crim R 181, 185; Carreras v The Queen (1992) 60 A Crim R 402, 407.
The public interest in recording a conviction
In determining whether to record a conviction, the court must weigh the benefit of no conviction being recorded against the public interest of a conviction being recorded. In R v Briese,[8] the respondent had pleaded guilty to two armed robberies and attempted stealing. The sentencing Judge directed that no conviction be recorded. The Attorney-General appealed. In allowing the appeal and ordering a conviction be recorded, the Queensland Court of Appeal, Thomas and White JJ, observed:[9]
… the effect of [a conviction] is capable of considerable effect in the community. Persons who may have an interest in knowing the truth in such matters include potential employers, insurers, and various government departments including the Immigration Department … For present purposes it is enough to note that the making of an order [to proceed without conviction] has considerable ramifications of a public nature, and courts need to be aware of this potential effect.
...
On the other hand the beneficial nature of such an order to the offender needs to be kept in view. It is reasonable to think that this power has been given to the courts because it has been realised that social prejudice against conviction of a criminal offence may in some circumstances be so grave that the offender will be continually punished in the future well after appropriate punishment has been received. This potential oppression may stand in the way of rehabilitation, and it may be thought to be a reasonable tool that has been given to the courts to avoid undue oppression.
…
… A court will be more easily persuaded against the recording of a conviction where there are no prior convictions or a very minor history and where the offence in question is a so called ‘victimless’ crime.”
Dowsett J observed that the more serious the offence the greater the legitimate public interest in knowing that a person has been convicted of it.
[8] (1996-1997) 92 A Crim R 75.
[9] (1996-1997) 92 A Crim R 75, 79-81. Cited with approval in R v Stubberfield (2005) 106 SASR 91, 102-3; Police v Zefi [2003] SASC 218, [14]; Szep v Police [2003] SASC 144, [26].
The appellant submits that the public benefit stands in the public’s general right to know about the offending. This is particularly the case for potential future employers of the respondent who, counsel submit, have a right to be made aware of her offending. The respondent submits that the toll on her personal life has been enormous, and that she has suffered enough as a result of the offending. She submits that she will never again obtain employment in the financial services industry.
In Attorney-General v Smith, the Full Court in Tasmania observed:[10]
By not even recording a conviction, the learned judge had given no expression to the community's disapproval of the admittedly criminal conduct, and had given no expression to the need for general deterrence … [It was] submitted that the community had an interest and expectation that such a crime would at least be condemned by a recorded conviction.
The statement is apposite in this case. The Magistrate in sentencing the respondent did not consider the community’s entitlement to know of the offending.
[10] [2002] TASSC 10, [18].
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.