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…

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 Stevens

Details

AGLC: R v Stevens [2018] SADC 107
Case: [2018] SADC 107
Decision Date: 26 October 2018

CaseChat Overview and Summary

The case of R v Stevens was heard in the District Court of South Australia, with the defendant, Emma-Marie Stevens, pleading guilty to the charge of aggravated theft. The dispute centred on the quantum of cash stolen by Stevens, with the particulars of the charge alleging that she stole a briefcase containing more than $30,000 in cash and other items. However, Stevens admitted to stealing only $1,500, and the prosecution did not call the complainant as a witness, relying instead on circumstantial evidence. The court was required to determine the factual basis for sentencing, considering the standard of proof of facts adverse to the offender and those favourable to the offender.

The court held that it could not be satisfied beyond reasonable doubt by the prosecution that there was cash in excess of $30,000 in the briefcase. Similarly, it could not be satisfied on the balance of probabilities by the defendant that there was only $1,500 in the briefcase when stolen by her. The reasoning of the court was based on the principles of R v Olbrich, where it was noted 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.

The court considered the evidence presented by both parties and found that, while the complainant's son-in-law provided some insight into the contents of the briefcase, there was no direct evidence that the complainant had placed all the withdrawn cash into the briefcase. The court also noted that the defendant's credibility was questionable, and she 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.

Ultimately, the court decided to sentence Stevens on the basis that she stole cash money of at least $1,500, and other items, but could not be satisfied beyond reasonable doubt as to the quantum of cash stolen by her. This decision was in line with the principles established in R v Olbrich and Weininger v R, which emphasise that some disputed issues of fact cannot be resolved in a way that goes to increase or decrease the sentence to be imposed.

Final orders: Emma-Marie Stevens will be sentenced on the basis that she stole at least $1,500 in cash, in addition to the other contents of the briefcase.

Orders