R v Stevens - [2018] SADC 107

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal: Disputed Facts Hearing)
R v STEVENS
[2018] SADC 107
Reasons for Ruling of His Honour Judge Beazley
26 October 2018
CRIMINAL LAW
DISPUTED FACTS
Defendant pleaded guilty to one count of aggravated theft - dispute as to the quantum of cash stolen by her - the particulars to the charge alleged that the defendant stole a briefcase containing more than $30,000 in cash, and other items - defendant admitted stealing only $1,500 - prosecution did not call the complainant as a witness, relying upon circumstantial evidence as to the source of $58,000 alleged by the prosecution to have been in the briefcase at the time - defendant did not give evidence however police interviews with her were tendered - factual basis for sentencing - standard of proof of facts adverse to an offender on the one hand, and favourable to offender on the other - court not satisfied beyond reasonable doubt by the prosecution that there was cash in excess of $30,000 in the briefcase - court not satisfied on the balance of probabilities by the defendant that there was only $1,500 in the briefcase when stolen by her.
Held: Defendant to be sentenced on the basis that she stole cash money of at least $1,500, and other items, however the court cannot be satisfied beyond reasonable doubt as to the quantum of cash stolen by her.
Criminal Law Consolidation Act 1935 SA s 134(1); Sentencing Act 2017 SA, referred to.
R v Olbrich (1999) HCA 54; Weininger [2003] HCA 14; R v Storey [1998] 1 VR 359; R v Lobban (2001) 80 SASR 550; R v Haydon (2001) 80 SASR 550; R v Perre (1986) 41 SASR 105, considered.

R v STEVENS
[2018] SADC 107
Introduction

Emma-Marie Stevens (the defendant) was initially charged on Information jointly with another person, ‘C’, with one count of Aggravated Theft, contrary to s 134(1) of the Criminal Law Consolidation Act 1935 (the Act).
The particulars of that offence, were that on 9 July 2017, at Whyalla Norrie, the defendant stole a briefcase containing more than $30,000 cash and other items without the consent of ‘HS’, (the complainant).
The complainant was at that time an elderly person, aged about 88 years, and was living alone.
‘C’ subsequently pleaded guilty to the offence, in effect, of Aggravated Receiving pursuant to s 134(5) of the Act, on the basis that she received only the sum of $250 from the defendant, knowing that it came from the elderly complainant’s briefcase. ‘C’ had known the complainant for many years.
While the defendant has pleaded guilty to the charge of Aggravated Theft, she disputes that the briefcase contained over $30,000. She maintains that she stole only the sum of $1,500 together with the complainant’s personal items contained within the briefcase.
As will be plain, the defendant, at times, during her police interviews, seemed to confuse how much cash she actually obtained from the briefcase, with the question of how much cash was in the briefcase when stolen by her.
In R v Perre,[1] King CJ explained that, generally, a sentencing Judge would determine the basis for sentencing by having regard to the sworn statements tendered by the prosecution.
[1] (1986) 41 SASR 105
However His Honour noted that if an issue arises as to the primary facts, it may be necessary for the sentencing Judge to undertake a disputed facts hearing, and it is a matter for an offender as to whether or not to call evidence.
On 13 July 2018 I heard a disputed facts hearing restricted to one issue only, namely as to the quantum of cash contained in the complainant’s briefcase, when the briefcase was stolen by the defendant on 9 July 2017.
Background to the disputed facts
Most of the background facts are not in dispute.
On 9 July 2017, the defendant and ‘C’ attended the complainant’s home at about 5.30pm. The briefcase was stored in a cupboard in the lounge room. The complainant had known ‘C’ for many years. She would attend at his house about once a week, and occasionally was given about $20 if she needed cash.
The complainant had decided to take his savings of just over $40,000 from his bank on 6 November 2015.
The prosecution case was that he kept his cash in the brown leather briefcase, together with his important personal items, which included receipts, his passport and driver’s licence. The prosecution asserted that the briefcase contained about $58,000 at the time of the Aggravated Theft by the defendant. The basis for that assertion was that the complainant had told his son-in-law, some months earlier that he had $70,000 in the briefcase, and it appeared, subsequently that he spent $12,000 for a motor vehicle.
After the defendant and ‘C’ left his house at about 7.00pm, the complainant noticed that his briefcase had been removed from its hidden position in the lounge room.
He contacted the police, who arrived, at his house at 8.10pm.
CCTV footage from a petrol station established that the defendant had purchased small items with a $100 note, at 8.55pm. The defendant was arrested at her home on that night. The stolen briefcase was found at her home.
She was interviewed twice by the police. In the first interview, she denied any involvement in the theft, save that she received about $250 from ‘C’. She was plainly untruthful in those denials.
In the second interview she admitted to having stolen the briefcase, but asserted that she only obtained $1,500 from the briefcase.
The principles
It is plain that it is for the sentencing judge alone to decide the basis for sentence and accordingly, the judge must determine the relevant facts.[2]
[2] See R v Saleh [2017] SASCFC 75.
In R v Olbrich,[3] Gleeson CJ for the majority said:
Much of the discussion of fact finding for the purpose of sentencing addresses questions of onus and standard of proof. References to onus of proof in the context of sentencing would mislead if they were understood as suggesting that some general issue is joined between prosecution and offender in sentencing proceedings; there is no such joinder of issue. Nonetheless, it may be accepted that if the prosecution seeks to have the sentencing judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the judge and, if necessary, call evidence about it. Similarly, it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary call evidence about it.
…
As to the standard of proof that should be applied, we would adopt what was said by the majority in R v Storey that the sentencing judge may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.
[3] [1999] HCA 54 per Gleeson CJ, Gaudron, Hayne and Callinan JJ.
In Weininger v R[4], the majority said:
The sentencing Judge may not be able to make findings about all matters that may go to describe those circumstances. In particular, an offender may urge a particular view of the nature and circumstances of the offence, favourable to the offender.
The sentencing Judge may be unpersuaded that the view is, more probably than not, an accurate view of the circumstances. In such a case it is not correct that the judge is bound to sentence the offender on that favourable basis, unless the prosecutor proves the contrary beyond reasonable doubt … in Olbrich where the offender submitted that he was no more than a courier, but the sentencing Judge disbelieved him, it was neither necessary nor appropriate to sentence him on the basis that he was a courier … Some matters will remain unknown to the sentencing Judge.
[4] [2003] HCA 14 per Gleeson CJ, McHugh, Gummon and Hayne JJ.
In R v Lobban,[5] the Court of Criminal Appeal said:
… It is important to bear in mind that not infrequently a sentencing Judge will not be persuaded by a particular fact. If a fact is advanced in favour of a defendant but a judge is not persuaded of the existence of the fact, the absence of it does not prove the converse adverse to the offender. It simply means that the offender does not get the benefit of the fact.
Similarly if a fact is advanced adverse to the interest of the accused but is not proved beyond reasonable doubt by the prosecution, it simply means that the adverse fact does not exist for the purpose of sentencing.
[5] (2001) 80 SASR 550 at [557] per Martin J.
The evidence
This is an unusual matter in more ways than one. The complainant did sign some statements for the police but they were unsworn.
In any event the prosecution did not seek to tender any statement sworn by him.
When the date was set for the disputed facts hearing I was informed that the complainant would give evidence. Arrangements were made for him to give evidence by AVL. He was the only person who could give direct evidence, for the prosecution, on the issue of how much money was in that briefcase on that night.
On the day of the hearing, I was informed that he did not wish to give evidence and he did not appear.
The prosecution proceeded to tender a number of documents, without objection, and called the complainant’s son-in-law to give oral evidence. I draw no inference adverse to the prosecution case in respect of the complainant’s absence. He is nearly 90 years of age. The documents tendered were as follows:
·Three statements of Probationary Senior Constable Van der Hoorn, two of them being dated 21 August 2017 (Exhibits P1 and P3) and the third dated 23 March 2018, (Exhibit P5);
·A statement of Brevet Sergeant Mark Guest dated 15 September 2017, and photo booklet (Exhibit P2);
·A statement of Brevet Sergeant John MacLay-Ross dated 16 June 2017 (Exhibit P4) and two discs of the first and second records of interview upon the defendant (Exhibits P6 and P7).
The book of photographs detailed the brown leather briefcase, and, inside the case, were personal (documents); including a passport; a driver’s licence, sundry other manila envelopes, and other items including a piece of paper containing handwritten numbers in a vertical line, with the number $48,00 as the total.
It was submitted that this writing represented various envelopes containing two lots of $15,000, one lot of $10,000 and one of $8,000 – being a total of $48,000.
The defendant’s police interview
In the first interview at about 12.40am the defendant described the complainant as ‘an old man’. She said that she and ‘C’ left his home after about 90 minutes.
She denied stealing money. She denied knowledge of the briefcase. She said that she had left ‘C’ and had travelled to her own home.
She asserted that ‘C’ owed her some money and gave her about $300 in cash. There was a reference to a further sum of $200 in cash.
In the second interview at 11.49am, she explained that her life was in danger. She was threatened by others, who wanted her house and money. She admitted that she stole ‘the money’ to get away. She said that when she stole the briefcase, she ‘thought there was a lot more in there, that wasn’t, there was 15 hundred in there’.
She conceded that ‘she grabbed the suit case’ – there was like five $100 notes and a thousand dollars of 50’s wrapped in lacquer bands’. She said that she had burnt the envelope which had contained the $1,500.
She said however:
When I got back to the house I bust the suitcase open … other people were in the room, I seen them like 15 [on an envelope] – I left [the briefcase], went to the toilet – quickly made phone calls cos I actually thought that the envelope said 15 grand.
It is plain that the defendant was only concerned with the money she took from the case – not the balance which may have been in it.
When she opened the envelope there were receipts and money – but only 15 hundred – I don’t know what anybody else took out of it. Don’t know who else was there, I’m just admitting to my bit cos I wanna go home, I haven’t dogged anybody on this recording, I haven’t mentioned anybody’s name on the recording.
She said that she snatched the first envelope with the first bit of money only. She conceded that it was possible there was more money in the bag which may have been taken by other people.
The complainant’s son-in-law Mr Reiter explained that the complainant will turn 90 years of age in December 2018. He visits the complainant four times a week and has been doing so for many years.
He deposed that when he retired from work, the complainant withdrew all the money which he had previously had in the bank and placed it into the brown leather attaché case. I infer that this is what he was told by the complainant. There is objective evidence in the bank statements that the complainant withdrew just over $40,000 on 6 November 2015. Was it taken out in cash? Only the complainant could say.
There is no direct evidence that he paid the sum in full or at all into his briefcase, save for what he told Mr Reiter.
Mr Reiter did however make it clear that he had never seen the complainant place money into the case. The last occasion he had seen inside the case was about four months prior to the theft. On that occasion he had seen the complainant open his briefcase. He noticed that there were envelopes inside the bag, which contained ‘a lot of cash in them’. He described the envelopes as being about ‘two inches thick’, and that he saw $50 and $100 notes inside them. He had not seen what was in the bag at a time closer to the theft.
He said in evidence in chief, that the complainant did not spend his money ‘full stop’. He said that he had been told by the complainant, that there was $70,000 in his bag. He did concede that the complainant had withdrawn $10,000 and $2,000 for on road costs to purchase a small vehicle, about 6 weeks before the theft. He said that he believed that there was $58,000 in the bag when it was stolen.
He was asked how he came by that figure and said, that it was the $70,000 less the $12,000. He rationalised that there was $14,000 in each of five envelopes. When pressed in cross examination, he was unable to say how many of the large manila envelopes were in the bag on the occasion or occasions which he saw inside the bag.
He said that the complainant had taken his pension money out of his credit union account fortnightly.
He agreed that he had never been with the complainant when he had withdrawn money. He conceded that he must have spent some money on living expenses. He could not say that the $40,000 had gone into his briefcase or placed elsewhere.
In cross examination he agreed that when he purchased a motor vehicle in 2017, he saw him hand an envelope with cash in it to the car dealership, which he understood to have contained $10,000.
He again conceded that the last time that he had seen inside the bag, was about four or five months prior to the theft. That time was before cash had been paid for the vehicle.
Submissions
Counsel for the prosecution, Mr Marcus, referred to the banking records of the complainant, which disclosed regular withdrawals on a fortnightly basis of income received by him from Centrelink as his pension entitlements. He referred to the fact that in 2015, a total of $40,000 was withdrawn from his account at the Commonwealth Bank.
He referred to the evidence of Mr Reiter as to his observation of the contents of the briefcase, some four months earlier; his evidence that the complainant was meticulous in recording his cash; and his limited spending. Mr Marcus submitted that this was strong circumstantial evidence that at least $28,000 was in the briefcase. He then referred to the defendant’s interviews. He submitted that she was not a witness of truth, having lied in the first interview about her involvement.
In the second interview, she had admitted that she had stolen the briefcase and in doing so had acted alone. While she denied that there was $60,000 as suggested by the prosecution and said that there was only $1,500 in the case, she should not be believed on those matters.
He said that she had said that she had expected there to be $15,000 in one envelope which had a number on it, but that when she checked it, there was only $1,500. The question was not that the envelope may have a figure written on it, but whether there was $15,000 in that envelope.
Mr Marcus accepted that much of Mr Reiter’s evidence was hearsay. However, he submitted that the court ought to have regard to the fact that the complainant was fastidious He conceded that in the absence of the complainant ‘it was difficult to conclude that the briefcase contained $58,000. He did however submit that it is open for the court to find that there were ‘at least tens of thousands of dollars. He accepted that $12,000 had been used on the purchase of motor vehicle and that other monies may well have been spent on other things, indeed, may have been given away.
Mr Marcus pointed to the defendant telephoning an individual shortly after the theft, in effect, offering to purchase a vehicle for $2,500. He ultimately submitted that at the very least, I should draw an inference that there was more than $1,500 in that account.
Counsel for the accused Mr Lang, submitted that there was no evidence of large amounts of money being in the briefcase. He submitted that the defendant had been unduly optimistic about how much might be in the bag before opening it up, and that this was consistent with her offering to purchase a vehicle for $2,500.
He referred to the fact that only a small amount of money was found at her home shortly after the theft, when the police came to arrest her.
He submitted that the Court could not know whether the complainant had another account in which the $40,000 was paid.
It would seem odd that the complainant would not invest it to obtain interest. The Court simply did not know. He submitted that without the complainant giving evidence, there was simply no evidence to support any conclusion as to how much money was in the briefcase, or whether some of it had been expended by him, as was the case in respect of the motor vehicle. He submitted that the complainant may have been embellishing for his friends. There may be a number of reasons as to why he may have told somebody that there was $70,000 in the briefcase.
This was in any event rank hearsay. He submitted that I should sentence the defendant on the basis that she stole $1,500 only.
Discussion
It is most unfortunate that the complainant did not give evidence on the hearing. I accept unreservedly the admissible parts of the evidence given by the complainant’s son-in-law. I have absolutely no doubt that some four of five months before the theft he observed significant sums of money, in the briefcase. The immediate difficulty is that it was only a short time before the theft that the complainant spent $12,000 cash in purchasing a motor vehicle. The complainant’s son-in-law did not have an opportunity to examine the bag after that time and prior to the theft.
On her own admission the defendant stole $1,500 in cash.
She did not give evidence at the hearing.
In many ways the police and the defendant were not discussing the same issue. It was not a question of what she received in cash, but how much was in the briefcase.
I repeat that it is plain that she was only concerned, in her answers to the police as to how much money she ended up with.
I have grave doubts about her credibility generally.
However at least she conceded that others were in the room at her home when she took the top envelope to the toilet. She conceded that those others may well have taken other envelopes from the briefcase while she was gone.

Consistent with the abovementioned caselaw, I cannot accept on the balance of probabilities, in favour of the accused that she stole only $1,500. Indeed, it is probable that there was significantly more than that sum, on her own evidence, when combined with that of Mr Reiter.
I also cannot find beyond reasonable doubt the quantum of cash as submitted by the prosecution – whether it be $58,000 as suggested by Mr Reiter or $28,000 representing the $40,000 withdrawn from the bank reduced by the $12,000 for the motor vehicle was in the briefcase.
The dicta in Weininger v R, supra, makes it clear that some disputed issues of fact cannot be resolved in a way that goes to increase or decrease the sentence to be imposed.
It is therefore neither necessary nor appropriate to sentence the defendant on the basis that she stole only $1,500 in cash together with the other contents of the briefcase. I cannot sentence her either by way of speculating upon a sum of cash. To do so would be to ignore the onus on the prosecution of proof beyond reasonable doubt.
I will sentence on the basis that the defendant stole at least $1,500 in cash in addition to the other contents of the briefcase. On any view it remains a very serious crime to steal even that sum from an 88 year old victim.