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 the appellant was aged between 23 and 25 years. She had no prior convictions. She did, however, volunteer to the police officers investigating the matter that she had also stolen from a previous employer who had operated the same business. She was not charged with that earlier offending.
It seems that the appellant’s habit of stealing from her employers began soon after she entered into a relationship with her former fiancé. It appears there was some pressure in saving money to purchase a house and therefore the fiancé’s money was used as savings, with the two of them living from the appellant’s money. Her lifestyle was expensive and she regularly stole so that she had money to spend on herself and their joint entertainment.
The sentencing judge said that it was of grave concern to her that the appellant used the stolen money to pay for luxuries. She gave examples of the purchase of a motor vehicle, Keno and lottery tickets, trips to Adelaide, perfume, clothes, shoes and jewellery, including diamonds, beads and necklaces. Whilst she was using this stolen money to pay for these items, the owners of the business were, as the sentencing judge said, “struggling to make ends meet”.
The reference to diamonds by the judge was an error. The appellant expressly said in an interview with police that the jewellery which she purchased did not include diamonds. That error, in my view, is not a vitiating error. The judge’s understanding, conveyed here and elsewhere in the sentencing remarks, was that the money was spent by the appellant to support a particular lifestyle which she could not otherwise have sustained.
The method of stealing changed from initially simply taking money from the till to later a carefully designed system involving cancelling out transactions after the goods had been recorded as sold and then pocketing the takings for those transactions. This meant that no records of the theft showed up in the accounts system, and the chance of detection was therefore minimal. It was a clever and contrived crime.
When the appellant’s employers indicated to the members of staff that they were concerned about their losses and that they had suspicions and were going to the police, the appellant went to the police and confessed.
The appellant is now 26 years of age and has no prior convictions. She made full admissions to the police, and in addition admitted the earlier stealing which was at that time unknown to the police. The sentencing judge regarded it as important that the appellant has made substantial restitution. The appellant has signed a deed and agreed to pay her victims the sum of $84,053. That amount includes not only the amount taken but other associated costs and loss incurred by the victims as a result. At the time of sentencing she had made payments of $37,748.18 and still owed $46,304.82 pursuant to the deed.
The appellant has shown genuine remorse and is deeply ashamed of what she has done. The sentencing judge was correct in saying that this was a significant breach of trust because her employers had effectively taken the appellant into their family. She became not only a trusted employee but also a close personal friend. The offending has also resulted in the break up of her relationship with her fiancé.
It is in having regard to all those circumstances that the question of suspension must be looked at. The sentencing judge found that the appellant’s prospects of rehabilitation are good, and it was obviously for that reason, together with her age, contrition and efforts at restitution that the sentencing judge fixed the very low non-parole period of 6 months.
Ms Davey submitted that the judge placed too much emphasis on the question of deterrence from her references to the decision in Police v Curtis & Marshall (2004) 145 A Crim R 587. It seems to me that Her Honour was merely using that case as a general reference, as it dealt with a comparison of various fraud offences involving breaches of trust and the prevailing sentencing standards mentioned in the cases set out in the judgment of Gray J at [43] to [53]. The judge referred to statements of principle in Police v Curtis & Marshall. That was clearly a reference to a statement by King CJ in R v Chisholm (1985) 122 LSJS 230) which was in turn referred to in one of the cases summarised by Gray J, namely, R v Suri [2004] SASC 80.
In Suri the court referred to “systematic fraud committed over a period of time by a person who is in a position of trust”. The court then said:
Furthermore, in sentencing for crimes of this kind, the need for general and personal deterrence is a paramount consideration: see R v Chisholm (1985) 122 LSJS 230) per King CJ:
The systematic course of dishonesty undoubtedly calls for a substantial sentence and there is, moreover, the important aspect of deterrence. The courts have a responsibility to impose sentences upon those who abuse the trust which is placed in them which will operate as a deterrent to others in a position of trust who might either for psychological or any other reason experience the temptation to take what does not belong to them.
One of the most significant aspects of the present case was the abuse not only of the trust reposed in the appellant as a shop assistant handling cash, but of the personal trust that the appellant had engendered through her friendship and other aspects of her personal relationship with the victims. She was trusted as a personal friend. Although the nature of the trust may be different and the offending on a lower scale than the cases discussed in Police v Curtis & Marshall, in my view, the judge appropriately referred to the principles adopted in that case and their importance for both personal and general deterrence. I reject the submission that it was an error to rely on that case.
The appellant argues that the sentencing judge erred in giving undue weight to the effect which the offending had upon the victims. Her Honour said:
I have regard to the contents of the victim impact statement. I note that you were treated almost as part of the victim’s family in this small business in a country community. You must have had some idea, at least at some level, of what was happening to your employer as a result of your conduct. You must have known they were struggling. You have ruined them, not just their business, but their trust and supportive nature in relation to other people, of which you had taken cruel and clever advantage.
The Director of Public Prosecutions submits that the sentencing judge has made no error. In particular it is submitted that there is no error of fact, mistaken principle or failure to have regard to any material consideration to show that the sentencing judge erred in the exercise of her discretion.
Her Honour, after considering all of the relevant matters, said:
Weighing up all of these matters and bearing in mind, in particular, the level of seriousness of your offending, its systematic nature, your level of premeditation and careful deception of those who trusted you and the amount of money involved, I am not satisfied that good reason exists to suspend the sentence which I have imposed.
It is my view that it is not possible to fault that reasoning. The level of seriousness of the offending in circumstances of a breach of trust was clearly the most significant factor in the judge’s decision not to suspend the sentence. It was appropriate for the judge to place considerable weight on that aspect. Her Honour has correctly summed up all of the factors which would have pointed to some good reason for suspension of the sentence and then come to a conclusion, in the exercise of her discretion, that a suspended sentence is not appropriate.
Ms Davey submitted that one part of the judge’s remarks during sentencing submissions was significant. The judge discussed the possibility of a Griffiths remand as an option as part of a restorative justice program. As it turned out, the program did not proceed because the victims were unwilling to participate. Ms Davey submitted that the judge, in reverting to a custodial sentence, must therefore have done so because of the attitude of the victims. In other words she placed too much emphasis on the effect of the offending on the victims to the detriment of other relevant considerations.
It seems to me that the comments by the judge were quite appropriate in sensibly discussing with counsel options which she might consider in her sentencing discretion. I reject the submission that the failure of the judge later to mention this fact in her sentencing remarks indicates that undue weight was given to the plight of the victims. The judge clearly weighed up all the factors which were relevant to the exercise of the discretion, including the impact on the victims, and concluded that there was no good reason to suspend the sentence. The only effect of the failure of any restorative justice process was that the appellant’s continued willingness to participate was a continuation of her contrition and willingness to express a meaningful restoration of the relationship. In my view, there is no error shown.
The sentencing process took some time, as at one stage there was a delay while there was a consideration as to whether issues of restorative justice should be explored. These were explored but the victims declined to enter into any program. It is my view that any such delay is of no significance in those circumstances in relation to the sentencing process. Likewise there was a delay caused by the preparation of reports, including a psychological report and a pre-sentence report, both designed to assist the sentencing judge in favour of the appellant. Again I do not see that this is significant in affecting the sentencing process.
It is my view that the appeal should be dismissed.
The sentence and non-parole period should operate from 6 September 2007, the date upon which Ms Reichstein was sentenced. I would make that direction for the purposes of s 364(3) of the Criminal Law Consolidation Act 1935 (SA).
WHITE J: In my opinion the appeal should be dismissed. I agree with the reasons of Anderson J and with the further reasons of Bleby J.