R v Murtaza

[2001] NSWCCA 336

CITATION:	R v Murtaza [2001] NSWCCA 336 revised - 5/10/2001
FILE NUMBER(S):	CCA 60198/01
HEARING DATE(S):	4/9/01
JUDGMENT DATE:	4 September 2001
PARTIES :	Regina Shahbaz Murtaza
JUDGMENT OF:	Hodgson JA at 1, 30, 32; Dowd J at 31; Carruthers AJ at 2

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	00/11/0927
LOWER COURT JUDICIAL OFFICER :	Davidson DCJ

COUNSEL :	W G Dawe QC (Crown) K R Newell (Respondent)
SOLICITORS:	S E O'Connor F McDonald
CATCHWORDS:	Sentencing - Crown appeal against inadequacy of sentence - larceny by a servant - balance of subjective and objective circumstances - whether too much weight given to subjective circumstances.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Thomson and Haulton (2000) 49 NSWLR 383
DECISION:	Appeal allowed. Judgment of Davidson DCJ on 30.3.01 set aside. New sentence: full time custody for a fixed period of 6 months, to begin on 4.9.01 and ending 3.3.02.

- 1 -IN THE COURT OF

CRIMINAL APPEAL

60198/01

HODGSON JA
DOWD J
CARRUTHERS AJ
Tuesday 4 September 2001

Regina v Murtaza

JUDGMENT

1    HODGSON JA: I will ask Carruthers AJ to deliver the first judgment.

2    CARRUTHERS AJ: This is an appeal by the Director of Public Prosecutions against a sentence imposed by his Honour Judge Davidson QC at the Sydney District Court on 30 March 2001 when the respondent, Shahbaz Murtaza, appeared for sentence on a charge of larceny as a clerk pursuant to s 156 of the Crimes Act 1900, to which charge he had earlier pleaded guilty.

3 Pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999, instead of imposing a sentence of imprisonment, his Honour made an order directing the respondent to enter into a good behaviour bond for a period of 3 years, subject to the respondent placing himself under the supervision and guidance of the Probation and Parole Service and a further condition that he undergo gambling and drug and alcohol counselling.

4    The notice of appeal was signed by the Director on 6 April and served on the respondent on 7 April 2001. The appeal originally came before this Court on 16 and 20 July. It was adjourned on the latter day on the application of the respondent by reason of his failure to take appropriate action to obtain legal aid. He now has the benefit of legal aid and is represented by Mr Newell of counsel.

5 The respondent was arrested on 30 April 1999. He was charged with stealing from his employer contrary to s 156, an offence for which the maximum penalty is 10 years imprisonment. He was released on unconditional bail.

6    On 23 November 2000, a year and 7 months after being apprehended and charged, the respondent was committed for trial.

7    On 8 December 2000 the respondent was arraigned in the District Court. He pleaded guilty to the charge on that date. Thus, the plea was not entered at the earliest opportunity, but it did save the cost of a trial.

8    The facts may be relatively briefly stated. In April 1999 Corporate Express Limited carried on business as a computer equipment distributor. It kept $9 million worth of stock on its premises. The respondent was employed as a computer systems operator with supervisory responsibilities. This was a position of trust. However, over a period of sixteen months to April 1999 the respondent stole approximately $80,000 worth of equipment from the company. This involved the respondent making unauthorised entries to the premises out of hours and disabling a security video. He was enabled to obtain access to the premises by reason of a security card which he possessed as a consequence of the office of trust which he held in the organisation.

9    The course of conduct was not impulsive. It involved thought and planning. The motive was clearly financial gain by sale, although all the property which was the subject of the charge was recovered, including one computer which had been sold. That was the only sale, according to the facts placed before his Honour.

10    The respondent was 23 years of age at the time of the offence. He obtained the Higher School Certificate in 1993 and was employed as from July 1997 by Computer Express. His life was not going well, however. According to the Probation and Parole Service pre-sentence report, which was before the sentencing judge, the respondent's marriage was under tension due to cultural differences. According to that report, the respondent had resorted to the heavy use of alcohol and was gambling excessively. The sentencing judge said the facts and circumstances suggested that the offence was committed in order to meet gambling debts and provide for what his Honour described as "his extensive alcohol addiction".

11    The respondent had, understandably, been dismissed by his employer in April 1999. He has been employed elsewhere since August 1999, but apparently his present employer is unaware of the present criminal proceedings. By the time of the sentencing hearing the respondent and his wife were separated. The respondent was supporting his 2 children financially.

12    According to the Probation and Parole Service report, the respondent had indicated remorse and sorrow in relation to the hurt caused his family and had, shortly before the report was written, indicated a willingness to undergo counselling and programs to address his alcohol and gambling problem.

13    The sentencing judge also had before him a letter from the spiritual leader of the respondent's Moslem religious community, who said he knew the respondent well and that the respondent was ashamed of, and remorseful for, his dishonest behaviour. His Honour noted that evidence without making an affirmative finding that the respondent was in fact contrite.

14    There was no criminal history, but the criminal conduct with which the respondent was charged had, as has already been indicated, continued over a significant period of time. Little, if any, weight could be given to prior good character in mitigation in these circumstances. Of course, it is trite to comment that generally a person is in a position of trust because he or she has no prior criminal record of significance.

15    There is breach of trust involved in larceny by a servant. The course of conduct extended over a lengthy period of time and it involved planning. These are important factors in assessing the degree of criminality involved. One can add to this the interference with the surveillance system and the fact that the respondent could only perpetrate the crime because of his security card.

16    The amount stolen was not insignificant, being of the order of $80,000.

17    Mr Newell of counsel in his helpful address stressed the fact that the property had been recovered and reminded this Court of the sentencing judge's remarks in that regard. When sentencing the respondent, his Honour said:

"There is, of course, no occasion for any compensation order to be made, the evidence establishing that all the property has been recovered. This, too, in my view, is an important factor in determining whether dealing with this matter by way of a bond might be regarded as appropriate.”

18    Mr Newell relies heavily upon the above statement, as well as his Honour giving significance to the recovery of property in determining whether in the circumstances (despite the serious objective circumstances) the leniency attached to the granting of the bond could be justified.

19    With all due respect to the experienced sentencing judge, I have difficulty in accepting as a matter of principle or of logic the accuracy of this statement. For reasons which have not been disclosed, the respondent elected, having stolen this property, to retain it in his home over a considerable period of time as the stolen property accumulated.

20    It seems to me that this retention of this property does nothing to reduce the objective degree of criminality involved in the respondent's conduct. How could it be said that if he had sold the property his degree of criminality would have increased?

21    Speaking generally, one could say that it is a factor to which a sentencing judge could pay some attention, but as an ameliorating factor the effect would, in my view, be minimal indeed.

22 Mr Newell has also relied upon the statistics of the Judicial Commission. They demonstrate overall that for the period April 1993 to March 2000 of 111 s 156 offences, 38% received full-time prison sentences. There were 69 cases where there were no prior convictions and of those 33% received full-time prison sentences. The statistics also reveal that of the 111 cases, 7 received recognisance under s 558 and 14% received recognisance under s 558 with supervision.

23    In my respectful view, the granting by his Honour of a bond in the circumstances of this particular case when one weighs the objective and subjective circumstances demonstrates a manifest inadequacy.

24    It was, in my view, a matter which demanded at first instance the imposition of a significant full-time custodial sentence. This Court has stressed time and time again the strong deterrent element involved in sentencing for this particular offence.

25    The statistics are interesting, but one must remember that they are only a guide. They are servants of the Court, not masters of the Court. It may be thought that, bearing in mind the objective seriousness of this offence, and the maximum penalty which the legislature has imposed, they demonstrated a consistent pattern of leniency.

26    The difficulty now for this Court is to determine what is the appropriate course which it should take. The subjective matters have been adverted to by Mr Newell. No fresh evidence has been put before this Court on the basis that if it determined it should intervene additional matters should be taken into account. We therefore only have before this Court the subjective circumstances that were before the sentencing judge which include, as Mr Newell pointed out, a pre-sentence report which posited, as alternatives to full-time custody, community service and periodic detention.

27    Difficult as it is for this Court to come to this conclusion because it is now some time since the granting of this bond, there is, in my view, no basis upon which the imposition of a sentence of full-time custody could be avoided. One recalls remarks by Mason P in R v Horne [1999] NSWCCA 391 at para 15, that in imposing inadequate sentences sentencing judges frequently create a situation at a later stage of unintended cruelty. This, regrettably, is one such case.

28    The full-time custody which I would propose, however, must necessarily take into account the significant effect here of double jeopardy and the fact that the respondent has been at liberty since this bond was granted.

29    Accordingly, the sentence which I would propose is necessarily significantly less than what, in my opinion, should have been imposed by way of a sentence of full-time custody in the original sentencing process. Thus, I would propose the following orders:

1. That the sentence imposed by his Honour by way of the granting of a conditional bond on 30 March 2001 be quashed.
2. In lieu thereof, the respondent be sentenced to imprisonment by way of full-time custody to a period of 6 months, to date from today.

30    HODGSON JA: I agree. In my opinion the sentence proposed by Carruthers AJ is appropriately at the low end of the range of sentences reasonably open in this case and also adequately takes into account the plea of guilty which in this case, in accordance with the principles in R v Thomson (2000) 49 NSWLR 383 would, in my opinion, merit a discount of about fifteen per cent.

31    DOWD J: I agree with the judgment of Carruthers AJ and also with the remarks of the presiding judge.

32    HODGSON JA: The orders of the Court are as proposed by Carruthers AJ.

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