R v Reichstein - [2007] SASC 374

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v REICHSTEIN
[2007] SASC 374
Judgment of The Court of Criminal Appeal
(The Honourable Justice Bleby, The Honourable Justice Anderson and The Honourable Justice White)
26 October 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - THEFT
Appeal against sentence - appellant, aged in early twenties, pleaded guilty to one count of theft - appellant's conduct involved repeated acts of theft from employer over two year period - appellant voluntarily confessed after employer told staff that police were investigating - appellant entered into agreement to repay stolen funds and related costs - restitution partially completed - sentenced to 2 years imprisonment with non-parole period of 6 months - no previous convictions.
Whether sentencing judge erred in not suspending sentence - whether sentencing judge placed too much emphasis on impact offending had on victims - whether sentencing judge placed too much emphasis on deterrence.
Held: Decision not to suspend sentence correct - seriousness of offending and breach of trust relevant - appeal dismissed.
Criminal Law Consolidation Act 1935 (SA) s 364(3), referred to.
Police v Curtis & Marshall (2004) 145 A Crim R 587; R v Chisholm (1985) 122 LSJS 230; R v Suri [2004] SASC 80, discussed.

R v REICHSTEIN
[2007] SASC 374
Court of Criminal Appeal: Bleby, Anderson and White JJ

BLEBY J. I agree with Anderson J that the appeal should be dismissed.
The appellant’s offending was serious, persistent and constituted a substantial breach of trust. General deterrence must play a significant part in the sentencing process, whatever the merits of the appellant’s position upon and following her confession. The fixing of a mercifully low non-parole period gave adequate recognition to the appellant’s good prospects of rehabilitation. In the circumstances, the sentencing Judge was justified in finding that no good reason existed to suspend the sentence. The exercise of the Judge’s discretion did not miscarry.
ANDERSON J. The appellant in this matter appeals against a sentence of imprisonment imposed upon her on 6 September 2007 in the District Court.
The appellant pleaded guilty to one count of theft which involved continuous acts of dishonesty between July 2004 and September 2006 when she stole from her employer at Berri.
The amount stolen came to just over $67,000. The maximum penalty for the offence is 10 years imprisonment.
The sentencing judge, after taking into account the guilty plea and the appellant’s genuine remorse, reduced the sentence by 30 per cent and fixed a head sentence of 2 years imprisonment. She then fixed a non-parole period of 6 months imprisonment. The sentencing judge described that non-parole period as “mercifully low”. The judge decided not to suspend the sentence.
The appellant argued that the sentence of imprisonment should have been suspended. At the time of the offending…

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 Reichstein

Details

AGLC: R v Reichstein [2007] SASC 374
Case: [2007] SASC 374
Decision Date: 26 October 2007

CaseChat Overview and Summary

The appellant in R v Reichstein appealed against the sentence imposed by the lower court, following a guilty plea to one count of theft. The offending spanned over two years and involved repeated theft from the appellant's employer. The appellant voluntarily confessed to the thefts after the employer informed staff that the police were investigating. As part of a resolution, the appellant agreed to repay the stolen funds and related costs, with partial restitution completed at the time of sentencing. The appellant, with no previous convictions, was sentenced to two years imprisonment with a non-parole period of six months.

The central legal issues before the court were whether the sentencing judge erred in not suspending the sentence, whether the judge placed too much emphasis on the impact of the offending on the victims, and whether the judge overemphasised the need for deterrence. The appellant argued that the sentence should have been suspended due to the appellant's otherwise clean record and the fact that the stolen funds were being repaid. The appellant also contended that the sentencing judge did not adequately consider the appellant's remorse and the breach of trust involved.

The court examined the severity of the offending, the breach of trust, and the need for general deterrence. The court held that the sentencing judge did not err in declining to suspend the sentence, as the offending was serious and involved a breach of trust. The court found that the sentencing judge appropriately considered the factors relevant to the case, including the impact on the victims and the need for deterrence. Consequently, the appeal was dismissed, affirming the original sentence.

No additional orders were made by the court beyond the dismissal of the appeal.

Orders