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

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.

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.

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.

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.

The learned magistrate gave no reasons for the sentence he imposed, other than to say that "I take into account what your…

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 Schipper v White

Details

AGLC: Schipper v White [2005] TASSC 96
Case: [2005] TASSC 96
Decision Date: 29 September 2005

CaseChat Overview and Summary

In the case of Schipper v White, the appellant sought a review of a decision made by a magistrate in Tasmania. The appellant was convicted of stealing and sentenced to 63 hours of community service. The nature of the appeal was whether the conviction and sentence were manifestly excessive, particularly considering it was the appellant's first offence. The court had to determine the principles applicable to such a review, focusing on the proportionality and appropriateness of the penalty imposed.

The primary legal issue was whether the sentence of 63 hours of community service for a first-time offence of stealing was manifestly excessive. The court needed to assess if the magistrate's decision was outside the range of reasonable outcomes. This required an examination of the relevant principles guiding sentencing in similar cases, particularly in light of the appellant's first-time offender status.

The court found that the sentence was not manifestly excessive. It reasoned that while the sentence might appear lengthy, the magistrate had discretion to impose community service as an alternative to imprisonment, which could be appropriate depending on the circumstances. The court concluded that the sentence did not fall outside the range of reasonable outcomes and therefore dismissed the appeal. The decision highlighted the importance of judicial discretion in sentencing and the principle that a sentence should be proportionate to the offence, taking into account the offender's circumstances.

No further orders were made beyond the dismissal of the appeal. The court's decision underscored the need for deference to the magistrate's assessment of the facts and the appropriateness of the penalty imposed.

Orders