Smith v Tasmania
[2008] TASSC 30
•30 June 2008
[2008] TASSC 30
CITATION: Smith v Tasmania [2008] TASSC 30
PARTIES: SMITH, Heather Ann
v
TASMANIA (STATE OF)
TITLE OF COURT: COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION: APPELLATE
FILE NO/S: 690/2007
DELIVERED ON: 30 June 2008
DELIVERED AT: Hobart
HEARING DATE: 4 June 2008
JUDGMENT OF: Slicer, Tennent and Porter JJ
CATCHWORDS:
Criminal Law – Judgment and punishment – Sentence – Factors to be taken into account – Circumstances of offence – Aggravating factors – Vulnerability of victim – Breach of trust – Impact of offences.
Aust Dig Criminal Law [830]
REPRESENTATION:
Counsel:
Appellant: P A Warmbrunn
Respondent: K Brown
Solicitors:
Appellant: E R Henry Wherett & Benjamin
Respondent: Director of Public Prosecutions
Judgment Number: [2008] TASSC 30
Number of paragraphs: 16
Serial No 30/2008
File No 690/2007
HEATHER ANN SMITH v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
SLICER J
TENNENT J
PORTER J
30 June 2008
Order of the Court
Appeal dismissed.
Serial No 30/2008
File No 690/2007
HEATHER ANN SMITH v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
SLICER J
30 June 2008
The appellant was sentenced to a term of imprisonment for a period of three years and six months following her conviction for the crime of stealing, committed over five months, of approximately $60,000. A non-parole period of twenty-eight months was fixed.
Circumstances of the case
The complainant, aged 30, was the stepson of the appellant. He suffered from impaired, verging on non-existent, literacy and numeracy skills. He could read simple words, but neither understand the contents of letters nor was capable of operating an automatic teller machine. He had lived with a partner who had managed his life and, in particular, financial affairs, until January 2004. He had been estranged from his father but, following the break-up of his relationship, accepted an arrangement whereby his father, the appellant and their children, moved to his house in order to care for him. The complainant and his former partner had lived in that house which was the subject of a mortgage. Following the break-up, the couple had negotiated a property settlement in accordance with the Relationships Act 2003, whereby the complainant would pay the sum of $46,000. This, together with legal costs and associated costs, required his taking out a new mortgage. Concurrently, the complainant settled an existing compensation claim for an injury suffered whilst in employment. The lump sum received precluded him from receiving payments pursuant to the Social Security Act 1991 (Cth).
The complainant maintained a simple bank account into which the compensation and balance of mortgage moneys were paid and from which liabilities were expended. The appellant contested at the sentencing hearing the amount said by the prosecution to have been stolen from the account, and the learned sentencing judge was required to determine receipts into, and payments from, that account. The learned sentencing judge found that on 15 March 2004, the sum of $10,000, being the proceeds of a personal loan advanced to the complainant, was paid into the appellant's separate account. He found that loan to have been unnecessary, having been arranged at the behest of the appellant for a non-existent purpose. That finding showed calculation on the part of the offender and was, in itself, an aggravating matter. Between 26 March and 3 August, further identified sums amounting to $71,489.45, being the surplus mortgage advance and receipt of the employer's payment of compensation were withdrawn from the stepson's bank account. There were further payments received up until 26 May for weekly entitlements for compensation and four deposits amounting to $3,656 between 18 June and 3 August 2004. His Honour found the last sum as possibly representing refunds of money by the appellant and accordingly gave her the benefit for the purpose of assessment. In relation to the surplus mortgage payment, the learned sentencing judge found that:
"The prisoner had overseen the arrangements for the new mortgage loan. This payment indicates beyond doubt that she arranged for the complainant to borrow some $15,000 more than he could have needed."
This, again, evidenced calculation and amounted to an aggravating circumstance.
The complainant's account showed a debit balance of $6.79 immediately prior to 15 March, and a credit balance of $2.41 as at 6 August 2004. Between those dates some ninety-seven withdrawals were recorded of sums varying between $50 and $10,000. Two examples will suffice. Between 20 May and 1 June, there were ten transactions involving $25,250, between 11 June and 17 June, there were nineteen transactions totalling $14,329. Those sums and periods corresponded with the payment into the account of significant sums of the complainant's money.
For the purpose of sentence, the learned sentencing judge accepted that an amount of $20,897 had been lawfully expended for the complainant. He also found that the complainant had received, in cash, an average of $200 per week during the period. His eventual calculation was:
"Moneys withdrawn from complainant's account $79,218.26 Moneys withdrawn from prisoner's account 9,916.25 $89,134.50 Specific payments as above $20,897.19 Weekly payments (21 weeks) 4,200.00 Payments accounted for 25,097.19 Deficiency
$64,037.31"
He concluded that the offender had stolen at least $60,000, a conclusion not challenged on this appeal.
Circumstances of the offender
The appellant, aged 39, had a gambling problem. The learned sentencing judge was satisfied beyond reasonable doubt "that she stole money from the complainant's bank account to gamble on poker machines". She was the mother of young children who were still living with her at the time of trial and sentence. She had suffered a serious illness in March 2005 with ongoing effects, but which were unlikely "to be any worse in prison than out of prison". She had made no payments in recompense since detection and the credits of $3,656 afforded as repayments were more in the nature of maintenance of the account or, at best, the deposit of a "windfall" gambling return. She had taken some steps to moderate her gambling addiction. That said, his Honour was correct in stating, "There is not much that I can take into account in her favour".
The appellant had given no indication of remorse. She was entitled to stand her trial (Pavlic v R (1995) 5 Tas R 186) although during the sentencing hearing she made further challenges to the unlawfulness of some of the impugned transactions and unsuccessfully advanced a claim that she had overcome her gambling habit. On the hearing of this appeal it was contended that the sentence was manifestly excessive as being inconsistent (Lowe v R (1984) 154 CLR 606; Griffiths v R (1977) 137 CLR 293) and outside of the range of comparable offenders who had stolen similar sums over a short period of time. The amounts involved in cases before this Court, such as Attorney-Generalv Saunders [2000] TASSC 22 and Langridge v R [2004] TASSC 97, might, at first, suggest error. However the specific cases relied on by counsel of Zeitzen 25 July 2007; Owen, 31 July 2007; and Parry, 28 March 2008, are of little assistance (see generally R v Franklin [1991] Tas R 54). Nor does the reference to the review of sentences imposed between 1983 and 2000, conducted by Professor Warner, Sentencing in Tasmania, 2 ed, assist the appellant. His Honour found that the appellant ought "receive a sentence of imprisonment that is significantly longer than would ordinarily be appropriate for stealing $60,000 or thereabouts".
Aggravating circumstances
The offender had prior convictions for dishonesty, namely two convictions for stealing and thirty for false pretences or dishonestly obtaining a financial advantage recorded in April 1996 and July 1998 respectively. The learned sentencing judge regarded "the aggravating circumstances in this case as particularly significant." Those factors, not challenged here, were that the case:
"… involved a particularly vulnerable victim, an unusually reprehensible breach of trust, a course of dishonest conduct over a period of several months, the taking of various steps to conceal the theft of the complainant's money, and an extreme financial impact on the victim."
The complainant was especially vulnerable. He was functionally illiterate and physically incapacitated. He had recently separated from a partner who had cared for him. The appellant, his stepmother, had moved into his home to care for him. He trusted her implicitly and gave her full control over his financial affairs. The course of conduct was akin to pillage. In relation to concealment, his Honour stated:
"I need to mention a number of steps that the prisoner took to conceal her stealing. She arranged with the prisoner that she would pay in advance 12 months' insurance premiums, 12 months' housing loan payments, and 12 months' personal loan payments. She paid the insurance premium for twelve months, did not pay any housing loan or personal loan payments, and pretended that she had. Similarly, she pretended that she was retaining enough money to pay the complainant $200 per week for about a year, when really she had converted to her own use practically all of the money that she had taken for that purpose. When the complainant received letters from his bank about loan payments not having been made, and spoke to her, she pretended that everything was all right. Although the complainant's money had run out by 6 August, she continued to give him $200 per week, at least most weeks, until Christmas."
The complainant lost all his compensation money. In July 2004, the value of his home was assessed for the purpose of the relationship settlement at a value of $100,000. The mortgage debt as of December 2004 was over $120,000, with ongoing interest requirements. The personal debt incurred had been reduced to $9,497, with further accrued interest to be paid. It was necessary for the sum of $7,832 to be released from superannuation and applied to the mortgage loan to prevent foreclosure. He was precluded from obtaining social security benefits. No moneys have been repaid by the appellant. As of August 2004, the complainant was, in the words of the learned sentencing judge:
"… partially physically incapacitated, illiterate, unemployed, penniless, deeply in debt, and behind in his personal loan payments. But for this crime, he would have been less deeply in debt and up to date in his payments, and might have had tens of thousands of dollars in the bank."
The effects on a victim, as here, are relevant and significant factors in aggravation (Parker v Tasmania [2007] TASSC 39).
Given those aggravating matters the sentence was within the permitted range and appropriate.
The appeal ought be dismissed.
File No 690/2007
HEATHER ANN SMITH v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
30 June 2008
I have had the opportunity to read the reasons of Slicer J in this matter. I agree with those reasons and the manner in which he proposes the appeal be disposed of
File No 690/2007
HEATHER ANN SMITH v STATE OF TASMANIA
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PORTER J
30 June 2008
I have had the advantage of reading the reasons for judgment of Slicer J. I agree with those reasons. In my view the appeal should be dismissed.
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