R v Mantovani

[1998] QCA 471

COURT OF APPEAL

[1998] QCA 471

McPHERSON JA
WILLIAMS J

MUIR J

CA No 292 of 1998
THE QUEEN
v.

LEANNE MAREE MANTOVANI Applicant/Appellant

BRISBANE
..DATE 28/10/98
281098 T10/BP M/T COA277/98
McPHERSON JA: This is an application in which the applicant
seeks leave to appeal against a sentence imposed by a District
Court judge on 21 August 1998 in Maryborough.

The applicant was convicted of attempted fraud and sentenced to imprisonment for nine months, which however was wholly suspended. The operational period was fixed at two years.

The ground of the application or appeal against sentence is that it is manifestly excessive. The offences charged occurred on 20 March 1998. The applicant was at an establishment, which bore the name Crazy Prices Store, at Pialba. She was observed by the security officer selecting some soft toys from an Easter display. She took a white bunny out of its bag and replaced it with a more expensive gold bunny. When she went to the checkout register, the checkout operator noticed that the gold bunny was not in the correct bag.

The applicant claimed that that was how she had found the bunny and that she did not want to purchase the correct bunny.

The employee attempted to ring up another bunny. This bunny had no bar code on it and the applicant produced a bar code. When it was scanned it came up as a different less expensive item. When challenged about this, the applicant claimed that it was the bar code that came with the item. She paid for some other items and the bunny was put aside for her later. When questioned by the police, she originally denied the offences.

281098 T10/BP M/T COA277/98
The applicant has previous convictions for unauthorised
dealing with shop goods and altering a price tag. On that
occasion she was fined and sentenced to probation for those
offences. The magistrate would not have known about the
commission of the offences or offence now before us.

The applicant submits that the nine month suspended sentence is manifestly excessive. She says that the learned sentencing judge did not have sufficient regard to mitigating factors personal to her and leading up to the commission of the offence. She is 28 years old and has a six-year-old daughter.

She has suffered post-natal depression since the child was born. She is also suffering from anaemia. Last year she gave birth to a still-born child and has suffered from depression ever since that event. She is taking anti-depressants for her condition. In the context, it is perhaps not without significance that the offence for which she was sentenced was that of taking or attempting to take a child's toy by means of deception.

The applicant submits that the sentencing judge erred in imposing a period of imprisonment, albeit suspended. Seeking to appeal against a sentence that is wholly suspended tends to arouse suspicions in the judicial mind about future intentions or conduct on the part of the appellant. However, there are, as I have already pointed out, some special factors in this case.

The sentence that the judge arrived at should perhaps not have
been imposed for such a long period, and I would regard it as
281098 T10/BP M/T COA277/98
not entirely appropriate in the circumstances of the
applicant's particular condition. She was undergoing grief
counselling under the probation order previously imposed, and
on her own initiative was attending a baby loss support group
at the time she committed this offence. Her underlying
submission is that the judge gave insufficient consideration
to those personal factors as well as to the rehabilitative
factors of sentencing, and perhaps had overmuch regard to the
requirement of personal deterrence.

She has submitted to us that an appropriate sentence would be an extension of her current probation order. As it happens, the Crown concedes that the nine month sentence might have been outside the appropriate range. A fine would not have been practicable having regard to the applicant's financial situation.

The Crown therefore accepts that a sentence of imprisonment for three months wholly suspended would have been more appropriate, while at the same time pointing out that this was the applicant's fourth offence of this type and that two of the previous offences had been committed in the very recent past.

One may feel some slight sympathy for her; but at the same
time her tendency to commit these offences will have to cease,
or she will risk spending a long period in custody at some
time in the future.
281098 D.1 T11/JT21 M/T COA277/98

In the end I would be disposed to allow the appeal, and to vary the sentence by reducing the period of imprisonment from nine months to three months. I would not otherwise alter the order made below.

WILLIAMS J: Given the concession made by the Crown I agree the sentence should be varied as indicated by the learned presiding judge.

MUIR J: I agree with the observations of the learned presiding judge and of Mr Justice Williams.

McPHERSON: The order will be as I have stated. The sentence will be varied by reducing the term of imprisonment from nine months to three months. Otherwise the sentence will not be affected. We will now adjourn. Thank you, gentlemen, for your assistance.

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