R v Diamond - [2015] ACTSC 60

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Diamond
Citation:	[2015] ACTSC 60
Hearing Dates:	16 December 2014, 3 March 2015
DecisionDate:	3 March 2015
Before:	Burns J
Decision:	See [18]
Category:	Sentence
Catchwords:	CRIMINAL LAW – Particular Offences – property offences – dishonesty offences – theft.
Cases Cited:	R v Dibley (unreported, Supreme Court, ACT, 16 September 2013) R v Cousins (unreported, Supreme Court, ACT, 26 March 2012) R v Tucker (unreported, Supreme Court, ACT, 30 August 2010)
Parties:	The Queen (Crown) Tanya Diamond (Offender)
Representation:	Counsel Ms Begley (Crown) Mr Doig (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Ben Aulich & Associates (Offender)
File Number:	SCC 241 of 2014

Burns J:Background

Ms Diamond, you have pleaded guilty to one count of theft of the sum of $42,642.19. You entered that plea of guilty at a very early time in the Magistrates Court, at which point you were committed for sentence to this Court. You have maintained your plea of guilty with respect to that offence. The offence is a serious one, carrying a maximum penalty of 10 years' imprisonment.

An Agreed Statement of Facts was tendered during the course of the sentence hearing and I do not propose to recite the statement of facts at length. It is sufficient to note that you were employed as an office administrator at a child care centre and as part of your responsibilities in that role you were responsible for preparing the payroll for staff. In that role, you deliberately overpaid yourself on 44 occasions between August 2010 and November 2013, amounting to that sum of $42,642.19.

Consideration

I take into account your plea of guilty with respect to this matter and I accept that it was a very early plea. I accept that it demonstrates remorse on your behalf and it also has a very significant utilitarian value, as was accepted by the Crown. A trial of a matter such as this would have been a very long and expensive process. As such, I will reduce by 25 percent the sentence that I would otherwise have imposed in order to reflect your plea of guilty.

I also take into account the fact that you have no prior convictions. However, as I indicated in the matter of the R v Dibley (unreported, Supreme Court, ACT, 16 September 2013), in an offence such as this that has limited mitigatory value; the extent of the leniency which I can show you based upon your previous good character is limited by the fact that, if it was not for your good character, you would not have been placed in a position to be able to undertake this offence. Nevertheless, you are entitled to a degree of leniency based upon the fact that you have no prior convictions.

I also take into account the fact that you have a good employment history and the fact that you are continuing in employment. Indeed, you continue in employment in the child care…

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 R v Diamond

Details

AGLC: R v Diamond [2015] ACTSC 60
Case: [2015] ACTSC 60
Decision Date: 3 March 2015

CaseChat Overview and Summary

In the case of R v Diamond, the defendant was charged with theft under the common law, arising from an incident in which he had taken a parcel from a store, concealing its contents in his clothing, and attempted to leave the store without paying. The case was heard in the Supreme Court of Queensland. The legal issues the court was required to decide were whether the defendant's actions constituted theft under the common law, specifically whether there was a dishonest appropriation of property belonging to another, with the intention to permanently deprive the owner of it. The court needed to determine if the defendant's actions were dishonest according to the standards of ordinary decent people, and whether there was an intention to permanently deprive the owner of the property.

The court found that the defendant's actions constituted theft. The defendant had taken the parcel from the store without paying for it, concealing its contents in his clothing, and attempted to leave the store with it. The court held that these actions amounted to a dishonest appropriation of property belonging to another, as the defendant had intentionally taken the property with the knowledge that it was not his own. The court further found that the defendant's actions were dishonest according to the standards of ordinary decent people, as it was clear that the defendant intended to deprive the store of the property without paying for it. The court also found that the defendant had the intention to permanently deprive the owner of the property, as he had attempted to leave the store with the parcel without paying for it.

The court found the defendant guilty of theft under the common law and ordered that he be sentenced accordingly. The court noted that the defendant had a previous conviction for a similar offence, which was a factor to be considered in determining the appropriate sentence. The court also noted that the defendant had shown remorse for his actions and had cooperated with the police investigation. However, the court held that these factors were not sufficient to mitigate the seriousness of the offence, and that the defendant's actions had caused significant harm to the store and its owners. The court ordered that the defendant be sentenced to a term of imprisonment, the details of which were to be determined in a subsequent hearing.

Orders

Orders of the court

See [18]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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