Regnault v Curley - [2020] WASC 146

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   REGNAULT -v- CURLEY [2020] WASC 146
CORAM:   ARCHER J
HEARD:   29 APRIL 2020
DELIVERED          :   29 APRIL 2020
PUBLISHED           :   11 MAY 2020
FILE NO/S:   SJA 1141 of 2019
BETWEEN:   CHANELLE LOUISE REGNAULT
Appellant
AND
JESSICA CURLEY
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE G RANDAZZO
File Number            :   PE 33978
PE 33979

Catchwords:

Criminal law - Appeal against sentence - Manifest excessive - Totality principle - Turns on its own facts

Legislation:

Criminal Appeals Act 2004 (WA), s 8, s 9, s 14

Result:

Leave to appeal refused in relation to ground 1 and granted in relation to ground 2
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	S Oliver
Respondent	:	M M Yeung

Solicitors:

Appellant	:	Francis Burt Chambers
Respondent	:	Director of Public Prosecutions (WA)

Case(s) referred to in decision(s):

Allie v The State of Western Australia [2016] WASCA 6
Colwell v The State of Western Australia [No 2] [2012] WASCA 196
Dimanopoulos v The State of Western Australia [2011] WASCA 62
Gaskell v The State of Western Australia [2018] WASCA 8
Gok v The Queen [2010] WASCA 185
Heaney v The State of Western Australia [No 2] [2013] WASCA 238
Heesom v O'Keefe [2017] WASC 362
KAT v The State of Western Australia [2017] WASCA 11
Ninyette v Holmes [2015] WASC 287
Pflug v The State of Western Australia [2018] WASCA 65
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Strahan v Brennan [2014] WASC 190
Thompson v The State of Western Australia [2019] WASCA 68
Wilson v The State of Western Australia [2010] WASCA 82
Wiltshire v Mafi [2010] WASCA 111

ARCHER J:

(This judgment was delivered extemporaneously and has been edited from the transcript and references added)

Introduction

The appellant seeks leave to appeal against a total effective sentence of 6 months' imprisonment imposed by his Honour Magistrate Randazzo in relation to two offences of stealing as a servant.
The grounds of appeal are that the total effective sentence was manifestly excessive and the learned magistrate breached the totality principle by ordering the sentence to be served cumulatively on a sentence the appellant was already serving. In the appellant's written submissions, she also submitted that the individual sentences imposed in relation to each offence was manifestly excessive. During the hearing, counsel for the appellant clarified that the appellant only alleged manifest excess in relation to the term of 6 months' imprisonment imposed in relation to the second charge.
The application for leave to appeal was ordered to be heard at the same time as the appeal.

The facts

The appellant was an employee of Direct Image Digital Printing Proprietary Limited from September 2014 to November 2017. She was employed as a receptionist, but it was also her job to pay the wages for the business, including her own.
On 24 November 2017, the appellant was arrested and charged with numerous offences of stealing as a servant from her employer.
On 28 June 2019, the appellant was sentenced by Troy DCJ in the District Court for 88 counts of stealing as a servant (District Court offences). The 88 counts involved amounts ranging from $102.55 to $4,020, totalling $129,466.53. The offences occurred over a 17 month period from 13 April 2016 to 12 September 2017. The appellant received a total effective sentence of 2 years' immediate imprisonment for the District Court offences, and was made eligible for parole.
Shortly after being sentenced for the District Court offences, the appellant was charged with four further offences of stealing as a servant from Direct Image. Two of the charges were subsequently discontinued. The appellant pleaded guilty to the other two, PE 33978/19 and PE 33979/19 (Magistrates Court offences). These offences pre‑dated the District Court offences, but it seems that they were not discovered at the same time as those offences. They were uncovered when a wages summary was extracted and identified further stealing offences committed by the appellant.[1]
[1] Transcript of the sentencing proceedings on 14 October 2019 (Sentencing Transcript) page 4.
Both of the Magistrates Court offences involved the appellant stealing from her employer by paying herself a bonus, to which she was not entitled, using the payroll software system.
PE 33978/19 related to the theft of a total of $8,231.31 by 19 separate acts over the period 12 February 2015 to 25 June 2015.
PE 33979/19 related to the theft of a total of $21,789.71 by 51 separate acts over the period of 2 July 2015 to April 2016.[2]
[2] Sentencing Transcript page 16.
The total stolen in relation to the two charges was just over $30,000.
On 14 October 2019, the appellant was sentenced by his Honour Magistrate Randazzo in relation to the Magistrates Court offences. The learned magistrate imposed terms of imprisonment of 2 months and 6 months, concurrent with each other, but cumulative on the sentence imposed by the District Court.

Appeals from magistrates' decisions[3]

[3] This section reproduces or draws on my reasons in Heesom v O'Keefe [2017] WASC 362, but is repeated here for convenience.

Section 8(1) of the Criminal Appeals Act permits an appeal against a conviction or sentence in the Magistrates Court to be made on one or more of these grounds:
(a)that the court of summary jurisdiction -
(i)made an error of law or fact, or of both law and fact;
(ii)acted without or in excess of jurisdiction;
(iii)imposed a sentence that was inadequate or excessive;
(b)that there has been a miscarriage of justice.
Leave to appeal is required for each ground of appeal.[4]
[4] Criminal Appeals Act, s 9(1).
The court must not grant leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding.[5] This means that the ground is required to have a real, rational and logical prospect of succeeding.[6]
[5] Criminal Appeals Act, s 9(2).
[6] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
When considering a magistrate's reasons, it is necessary to keep in mind the nature of the work of magistrates. As was pointed out by Martin CJ in Strahan v Brennan,[7] magistrates are required to conduct cases efficiently and with a degree of informality given the large volume of cases they hear each day. Accordingly:[8]
[I]t is not appropriate to scrutinise the reasons for decision given by magistrates with a fine‑tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.

Principles relating to sentencing appeals

[7] Strahan v Brennan [2014] WASC 190 [89] ‑ [90].

[8] Strahan v Brennan [90].

Part 2 of the Criminal Appeals Act sets out the framework for appeals from courts of summary jurisdiction. The framework in pt 2 differs slightly from the framework in pt 3, which deals with appeals to the Court of Appeal from superior courts. Therefore, judicial observations made in relation to appeals under pt 3 cannot automatically be applied to appeals under pt 2.[9] There are, however, core principles that apply to appeals against sentence under both pt 2 and pt 3. In particular, the court is not entitled to intervene merely because it would have exercised the sentencing discretion differently. It is only entitled to intervene if the sentencing court made an express or implied error.[10]
[9] Ninyette v Holmes [2015] WASC 287 [56.3].
[10] Wilson v The State of Western Australia [2010] WASCA 82 [2]; Ninyette v Holmes [59] ‑ [65]; Gaskell v The State of Western Australia [2018] WASCA 8 [127(1)].

Ground 1 - manifest excess

A ground of appeal that alleges a sentence was manifestly excessive is an assertion of implied error. To succeed, the appellant must demonstrate that the disposition is unreasonable or plainly unjust.[11]
[11] Gaskell [127(1)].
In determining whether a sentence is manifestly excessive, the sentence should be examined having regard to the maximum sentence for the offence, sentences imposed in other appellate cases for similar offences, the gravity of the criminal conduct in the scale of seriousness for offences of that type, and the offender's personal circumstances.[12]

Maximum penalties

[12] Gaskell [127(2)].

The maximum penalty for the offence of stealing as a servant is 10 years' imprisonment. The maximum summary conviction penalty is 2 years' imprisonment and a fine of $24,000.
The appellant submitted that the total sentence imposed by the learned magistrate equated to 25% of the summary conviction penalty. The appellant said that, by contrast, Troy DCJ had imposed only 20% of the maximum penalty in relation to the District Court Offences. The appellant submitted that, given the magistrate had identified the amounts by which he had reduced the sentence for the pleas of guilty and assistance:[13]
the starting point … in relation to count 2 must have been in excess of 10.5 months. A starting point of 10.5 months would represent 43.75% of the maximum sentence available in the Magistrates Court. In the appellant's submission, that alone is suggestive of error on the part of the learned Magistrate.
[13] Appellant's Submissions [36] ‑ [39].
I do not accept this. The summary conviction penalty for an indictable offence is merely the jurisdictional limit that applies if the offence is dealt with summarily. It is not a maximum penalty to be reserved for the worst type of case. Indeed, in assessing the appropriate penalty, a magistrate must have regard to the maximum statutory penalty. Provided the final sentence does not exceed the jurisdictional limit, the starting point may exceed the jurisdictional limit.[14]
[14] Wiltshire v Mafi [2010] WASCA 111 [24] ‑ [33].
In any event, sentencing appeals are determined by reference to the sentence ultimately imposed and whether the sentencer has made an express or implied material error, not by reference to a notional 'starting point'.[15]

Comparable cases

[15] KAT v The State of Western Australia [2017] WASCA 11 [40].

As was noted by the Court of Appeal in Pflug v The State of Western Australia,[16] offences of stealing as a servant are committed in a very wide variety of circumstances. This may limit the value of other cases. Nevertheless, it remains important to appreciate what sentences are customarily imposed in cases involving similar offending, for the purpose of ensuring broad consistency.
[16] Pflug v The State of Western Australia [2018] WASCA 65 [56].
Pflug itself referred to numerous cases involving stealing as a servant in various amounts and over various periods. The respondent drew my attention to two of those cases in particular.
The first of these was Heaney v The State of Western Australia [No 2].[17] In Heaney, the appellant entered fast‑track pleas of guilty to two counts of stealing as a servant and four counts of stealing. He was sentenced to 18 months for each offence of stealing as a servant and 6 months for each stealing offence, with the sentences being ordered to be served so as to result in a total effective term of 2 years' imprisonment. The offences occurred over a 10 month period and totalled $77,333. The appellant made full restitution of the stolen amount. The appellant was a 68‑year‑old self‑employed taxation accountant. He had no criminal record. His appeal against the individual sentences and the total effective sentence was dismissed.
[17] Heaney v The State of Western Australia [No 2] [2013] WASCA 238.
The second case identified by the respondent was Allie v The State of Western Australia.[18] In Allie, the appellant pleaded guilty to one count of stealing as a servant, having stolen cigarettes to the value of $17,175. He was sentenced to 20 months' imprisonment. The cigarettes were recovered in full. The appellant was 43 years' old and had prior relevant convictions. He suffered from depression and had an abnormal behaviour pattern which caused him on occasion to act impulsively and irrationally. As a result of his psychological state, stress was likely to affect his judgment. The sentencing judge took into account that, at the time of the offending, the appellant was experiencing psychological stress because of his children's health issues and his own unresolved problems with sexual abuse he had experienced. The sentencing judge also allowed a 25% discount for his plea. His appeal against the sentence was dismissed.
[18] Allie v The State of Western Australia [2016] WASCA 6.
In her written submissions, the appellant did not identify any comparable cases. During the hearing, counsel for the appellant noted the differences between the cases referred to by the respondent and the current case, but said that she was not aware of a more comparable case.
There are differences. Counsel for the respondent did not contend otherwise, and indeed pointed them out in her submissions. Nevertheless, to the extent that it is possible to use those cases as comparators, they do not suggest that the individual sentences or the total effective sentence imposed by the learned magistrate in this case were excessive.

Seriousness of the offences

The offence of stealing as a servant is a serious offence as it involves the abuse of a position of trust.
In assessing the seriousness of such an offence, relevant factors include the amount stolen, the number of offences, the frequency of the offending and the period over which it occurred, the nature and extent of the impact of the offending on the victims, and the offender's knowledge of the financial impact it would have. The amount stolen is not necessarily the most important consideration.[19]
[19] Heaney [22].
Part of the appellant's job was to pay the wages for the business, including her own. Both of the Magistrates Court offences involved the appellant stealing from her employer by paying herself a bonus, to which she was not entitled, using the payroll software system.
The first of the two Magistrates Court offences involved 19 separate acts over a four month period, by which the appellant stole a total of $8,231.31.
The second involved 51 separate acts over a nine month period, by which the appellant stole a total of $21,789.71.
The total stolen in relation to the two Magistrates Court offences was just over $30,000.
Plainly, the appellant's offending was not 'spur of the moment' or a momentary lapse in judgment. The appellant did not stop of her own volition. She was caught by an audit that took place while she was on her honeymoon.[20]
[20] Transcript 28 June 2019 page 28.
The learned magistrate accurately described the appellant's offending as being systematic, deliberate and calculated acts of stealing, involving a breach of trust.[21]
[21] Sentencing Transcript pages 15 ‑ 16.
The offending had an impact on the employer.[22]

Personal circumstances

[22] Sentencing Transcript page 5.

The magistrate accepted that the appellant pleaded guilty at the first reasonable opportunity and gave her the full 25% discount.[23]
[23] Sentencing Transcript pages 16 ‑ 17.
The appellant had no criminal history prior to this offending and, apart from this offending, was otherwise of good character.[24] The Magistrates Court offences occurred before the District Court offences. However, the Court of Appeal has observed that 'it is frequently the case in offences of this nature that the offender has good antecedents, without which they are unlikely to have been placed in a position of trust in the first place'.[25]
[24] Sentencing Transcript page 19.
[25] Heaney [21]
The appellant was 23 and 24 at the time of the offending. She is now 28 years old, as she was when she was sentenced.
The learned magistrate noted that the offending did not stop of the appellant's own volition. Rather, the offending was discovered when an audit was undertaken. Nevertheless, the learned magistrate was willing to accept that she was remorseful.[26]

Mental health

[26] Sentencing Transcript page 17.

In support of her submissions in this appeal, the appellant relies in particular on her mental health issues. She submits:[27]
Having regard to the psychologist's report, it is clear that the appellant's psychological vulnerabilities contributed to the offending, such that it reduced her moral culpability for the offending and did not make her a good vehicle for general deterrence. Her psychological vulnerabilities impacted on her poor decision‑making, which led to the appellant starting to steal money from her employer to relieve some of the financial pressures she was under.
[27] Appellant's Submissions filed 20 January 2020 [20].
The learned magistrate found that the appellant's mental health issues were not causative of the offending.[28] This finding has not been challenged in the appeal.[29]
[28] Sentencing Transcript page 17 ‑ 18.
[29] And see Sentencing Transcript page 12 where counsel for the appellant asked the magistrate to adopt the same position as had been adopted by Troy DCJ. Troy DCJ had also found that the appellant's mental health issues were not causative of the offending.
His Honour took into account the appellant's mental health issues by adjusting the weight he gave to deterrence. However, he did not consider that general deterrence should be given no weight.[30] In light of his Honour's finding that the appellant's mental health issues were not causative of the offending, this was unsurprising. It would only be in an extreme case that non‑causative mental health issues could entirely eliminate considerations of general deterrence.[31] This was not an extreme case.
[30] Sentencing Transcript page 18.
[31] Gok v The Queen [2010] WASCA 185 [59] ‑ [60].
During the hearing, counsel for the appellant accepted this. The appellant's submission was rather that it could be inferred from the outcome that the magistrate had given too little weight to her mental health issues.

Co‑operation with authorities

The learned magistrate took into account that the appellant had provided some assistance to the Australian Taxation Office, and reduced the sentence he would otherwise have imposed by two months.[32]

Delay

[32] Sentencing Transcript pages 19 and 22.

The appellant submitted that the 'unexplained delay in the bringing of the present charges was also relevant to the exercise of the sentencing discretion in this case. The delay denied the appellant the opportunity to have all of the alleged offending dealt with by the same Court.'[33]
[33] Appellant's Submissions [41].
I do not accept the delay was relevant in that sense. The magistrate was required to impose sentences commensurate with the conduct. The fact that the Magistrates Court Offences involved the same type of conduct as was involved in the District Court Offences was a matter to be considered when considering the totality principle in light of the sentence imposed by Troy DCJ.
The delay was however relevant in terms of the appellant's rehabilitation. The learned magistrate took into account the appellant's conduct since she had been charged. His Honour referred to the counselling and programs that she had undertaken. His Honour said they showed that the appellant was taking encouraging steps towards rehabilitation, and that he had taken this into account.[34]

Reason for offending

[34] Sentencing Transcript page 18.

The magistrate accepted that the offending was brought about by way of financial pressures on the appellant. His Honour found that:[35]
1.the appellant had been trying to financially assist her parents, who regrettably had their own financial pressures;
2.she had been trying to assist her mother in-law, who was battling cancer;
3.she had financial commitments arising from her wedding and from building a home.
[35] Sentencing Transcript page 16.

The commitments arising from her wedding and from building a home are plainly not mitigating.

Conclusion on ground 1

The Court of Appeal has observed that 'in cases of this kind where there has been deliberate, systematic and planned criminality over a lengthy period, general deterrence is of primary importance and personal mitigating factors and previous good character will generally be of less weight'.[36] In this case, the appellant's mental health issues reduced the weight to be given to general deterrence. However, the seriousness of the offending still means that less weight is to be given to personal mitigating factors and previous good character than would be given in relation to different types of offending.
[36] Colwell v The State of Western Australia [No 2] [2012] WASCA 196 [66]. See also Pflug [55] citing Dimanopoulos v TheState of Western Australia [2011] WASCA 62 [19].
It is for the appellant to establish that the individual sentences were, or total effective sentence was, manifestly excessive. I am not satisfied of this. On the contrary, I consider, with respect, that each sentence and the total effective sentence, was well within the range of an appropriate disposition.

Ground 2 - totality

Ground 2 alleges that the sentence infringed the first limb[37] of the totality principle. In Thompson v The State of Western Australia,[38] the Court said:
The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences must bear a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving a term of imprisonment), viewed in their entirety, and after having regard to all relevant circumstances, including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), and the total effective sentences imposed in comparable cases.
[37] See the Appellant's Submissions [32].
[38] Thompson v The State of Western Australia [2019] WASCA 68 [44].
In applying the first limb of the totality principle to cases in which there are common aggravating factors in relation to the multiple offences, 'the sentencing judge must take that commonality into account ... However, the sentencing judge is not bound, merely by virtue of the commonality, to order that the individual sentences be served wholly or to a substantial extent concurrently'.[39]
[39] Thompson [68].
Where the offences form part of a single course of conduct, the totality principle does not necessarily require that the sentences must be made concurrent with each other. In Thompson,[40] the Court said:
The so‑called 'one transaction rule' or 'continuing episode rule' is not a rule at all, but merely a guideline. Ultimately, each case must be decided on its own facts and circumstances. The sentencing court must decide, in each case, whether the application of the guideline would result in an appropriate measure of the total criminality involved in the offending conduct considered as a whole, having regard to all relevant facts and circumstances and all relevant sentencing factors. Substantial accumulation of individual sentences may be required, notwithstanding that the offences were committed during one episode of criminal behaviour.
[40] Thompson [69].
Similarly to an allegation of manifest excess, a ground of appeal that alleges a sentence infringed the totality principle is an assertion of implied error. To succeed, the appellant must demonstrate that the disposition is unreasonable or plainly unjust.[41]
[41] Heaney [19].
In Heaney,[42] Newnes JA, with whom Pullin and Mazza JA agreed, said (citations omitted):
Whether or not a sentence infringes the totality principle must, of course, depend upon the particular facts and circumstances of the case. No two cases are the same and there will often be significant differences in the circumstances of the offending and the offenders. However, while bearing in mind the limitations inherent in doing so, it is necessary to have regard to sentences imposed in other cases for offending of a similar nature in an endeavour to achieve broad consistency in sentencing.
[42] Heaney [19] ‑ [20].
I have had regard to the same cases that I considered in relation to ground 1. These cases do not suggest that the totality principle was breached by the order that the total effective sentence for the Magistrates Court offences be served cumulatively on the District Court sentence.
The appellant appears to submit that error is shown by her assertion that, if all of the offences had been dealt with in the District Court, it is unlikely to have made a difference to the penalty imposed by that Court.[43] Error is not established in this way. The question is whether it was open to the magistrate to impose a sentence of 6 months imprisonment cumulative on the District Court sentence. The appellant must demonstrate that it was not. She must demonstrate that the disposition was unreasonable or plainly unjust.
[43] See the Appellant's Submissions [44] ‑ [45]. See also at [12] ‑ [14].
The learned magistrate was required to take into account the commonality between the Magistrates Court offences and the District Court offences in considering totality. However, his Honour was not required to order that the sentences he imposed be served concurrently with the District Court sentence. The 'one transaction rule' is merely a guideline. What must be assessed is the total criminality involved in the offending conduct considered as a whole, having regard to all relevant facts and circumstances and all relevant sentencing factors. The penalty imposed must bear a proper relationship to that total criminality.
Troy DCJ sentenced the appellant for systematically stealing from her employer $129,466.53 over a period of 17 months. His Honour characterised the offending as 'deliberate systematic and planned criminality over a lengthy period of time'. His Honour described the effect on the employer as being 'devastating' and that the impact on such a 'smallish business' was 'hugely significant'.[44]
[44] Transcript of 28 June 2019 pages 28 ‑ 30.
When the Magistrates Court offences are added to the District Court offences, the conduct involved $159,487.55 over a period of 31 months. The amount was higher and the period of offending was longer. Indeed, there was no overlap in the period in which the Magistrates Court offences were committed and the period in which the District Court offences were committed.
I earlier set out the relevant factors in assessing the seriousness of an offence of stealing as a servant, and discussed those factors in this case. I also set out the relevant personal circumstances of the appellant, although less weight is given to such matters in offences of this type.
The learned magistrate set out in some detail the requirements of the totality principle. His Honour noted it was an important consideration, particularly as he was going to pass sentence on the appellant at a time when she was already serving a term of imprisonment.[45] His Honour expressly noted that the Magistrates Court offences were part of the same course of conduct as was involved in the District Court offences. His Honour clearly understood he was required to ensure that the total length of time the appellant would be required to serve would bear a proper relationship to the overall criminality.[46]
[45] Sentencing Transcript page 20.
[46] Sentencing Transcript page 20. See also Sentencing Transcript pages 9 ‑ 11 and 15 ‑ 16.
His Honour considered, however, that if he imposed a concurrent sentence on the District Court sentence, that sentence, of 2 years' imprisonment, would not reflect the total criminality.[47] It was plainly open to his Honour to reach this view. His Honour did, however, make a significant adjustment to the sentence he would have imposed to ensure the total would not offend the totality principle.[48]

Conclusion on ground 2

[47] Sentencing Transcript page 21.

[48] Sentencing Transcript page 21.

It is for the appellant to establish that the totality principle was breached. I am not satisfied of this. On the contrary, I consider, with respect, that it was plainly open to the magistrate to order that the sentence he imposed be served cumulatively on the District Court sentence.

Conclusion

I would refuse leave to appeal in relation to ground 1.
I would grant leave to appeal in relation to ground 2, but would dismiss it.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SW
Associate to the Honourable Justice Archer
11 MAY 2020