Schipper v White

[2005] TASSC 96

[2005] TASSC 96

CITATION:            Schipper v White [2005] TASSC 96

PARTIES:  SCHIPPER, Nicolle Jane
  v

WHITE, Graham

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 14/2005
DELIVERED ON:  29 September 2005
DELIVERED AT:  Launceston
HEARING DATE:  21 September 2005
JUDGMENT OF:  Crawford J

CATCHWORDS:

Magistrates – Appeals from and control over magistrates – Tasmania – Motion to review – The hearing – Generally – Review of sentence – Principles applicable – Whether a conviction and 63 hours of community service for a first offence of stealing manifestly excessive.

Aust Dig Magistrates [272]

REPRESENTATION:

Counsel:
           Applicant:  W G Tucker
           Respondent:  J P Ransom
Solicitors:
           Applicant:  Grant Tucker
           Respondent:  Director of Public Prosecutions

Judgment Number:  [2005] TASSC 96
Number of paragraphs:  8

Serial No 96/2005

File No LCA 14/2005

NICOLLE JANE SCHIPPER v GRAHAM WHITE

REASONS FOR JUDGMENT  CRAWFORD J
  29 September 2005

1. On 2 June 2005 the applicant was convicted and sentenced to 63 hours of community service for one count of stealing.  She has moved this Court to review the sentence on a ground of manifest excessiveness.

1. At the time of the offence on 31 December 2004 she was 22 years of age.  She had been employed at a Woolworths supermarket for about seven years.  She was working in the cash office and conducting a count of the cash in the safe.  In the course of doing so she removed two $100 notes and hid them between a folded piece of paper on a bench, before returning the rest of the cash to the safe.  Later that morning she took the $200 with her when she left the office.

1. When spoken to by a security officer and the police she denied taking the money.  On her second appearance in the Magistrates Court on 13 April 2005 she pleaded not guilty.  However on the next hearing, on 2 June, she pleaded guilty and the complaint was disposed of that day.  There is no reason to think that her eventual admission came about for any reason other than that a surveillance camera had recorded her theft.  Remorse was not claimed on her behalf.  She has repaid nothing of what was stolen.  She has given no explanation concerning the theft.

1. Counsel for the applicant asked the learned magistrate to take into account that she had no record for offending.  As a result of the offence her employment was terminated without notice and she lost any accrued benefit she may have gained towards long-service leave entitlement after seven years of service.  In about May she gained employment elsewhere as a sales assistant.  Whether her current employer was aware of her theft from Woolworths was not stated.  Counsel's statement that the applicant had gained the trust of her current employee did not establish that.  Counsel submitted to the learned magistrate that it might be appropriate not to convict her. 

1. The learned magistrate gave no reasons for the sentence he imposed, other than to say that "I take into account what your counsel has said on your behalf", adding that the 63 hours of community service would be imposed "in all the circumstances". 

1. It was submitted by counsel for the applicant that because of her relatively young age, her good record and the loss of her employment and accrued long service leave entitlements, a sentence amounting to a conviction and 63 hours of community service was manifestly excessive.  Counsel maintained that the applicant should not have been convicted at all.

1. In a case of breach of a trust reposed in an employee by an employer, apparent good character and reputation are typical and have much less weight than in other cases because of the need for a sentence of general deterrence.  I reject the submission that the applicant should not have been convicted.  The effect of not convicting would have meant that should she be charged with a similar offence in the future, she could not be treated as having been convicted of this offence.  Sentencing Act 1997, s10(1). She would be entitled to assert, even on oath or statutory declaration, that she has not been convicted of the offence. A failure to record a conviction is capable of considerable effect in the community. R v Brown, ex parte Attorney-General [1994] 2 Qd R 181 at 194. Persons who might have an interest in knowing the truth about her history include potential employers. When considering whether to record a conviction, a court must weigh up the public interest and the need for an official record to be made of the commission of the offence, against the beneficial nature to the offender of a conviction not being recorded. Attorney-General v Smith [2002] TASSC 10 at [26]. In this particular case there was no evidence of remorse notwithstanding that the applicant may have been entitled to some benefit from her plea of guilty. A sentence of personal deterrence was reasonably required in the circumstances. Another consideration arises out of the need, in the public interest, to avoid sending out a message to employees that upon the first occasion of their detection for stealing from their employer they are likely to be treated leniently, perhaps without a conviction being recorded. In all the circumstances, I am unpersuaded that it would have been appropriate not to record a conviction in this case. Certainly the learned magistrate committed no error by recording it.

1. The remaining question concerns the imposition of 63 hours community service.  I think that community service was reasonably open as a sentencing remedy for this case.  What has troubled me is the question whether 63 hours was an excessive number for an offence of this nature that was committed by a first offender.  While I would have regarded 35 hours as reasonable and beyond criticism the imposition of 63 hours is arguably a little harsh.  However, the conclusion I have come to is that the sentencing order should be allowed to stand.  The learned magistrate was entrusted by the law with a very wide discretion and this Court should not intervene unless satisfied that the sentence was manifestly excessive to the extent that it is only explicable upon the basis of error.  Jones v Fleming [1957] Tas SR 1; Whittle v McIntyre [1967] Tas SR (NC 6).  Although the number of hours of community service was greater than I would have ordered, that alone is insufficient to justify overturning the order.  On balance, I consider the sentence to have been within the permissible range appropriate for the circumstances.  For that reason, the motion to review will be dismissed.