Smith v The Queen

Case [2003] WASCA 235

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   COURT OF CRIMINAL APPEAL

CITATION:   SMITH -v- THE QUEEN [2003] WASCA 235

CORAM:   MURRAY J

PARKER J
MILLER J

HEARD:   12 SEPTEMBER 2003

DELIVERED          :   12 SEPTEMBER 2003

PUBLISHED           :  3 OCTOBER 2003

FILE NO/S:   CCA 92 of 2003

BETWEEN:   HELEN SUSAN SMITH

Applicant

AND

THE QUEEN
Respondent

Catchwords:

Criminal law - Sentence - 25 counts of stealing as a servant - Total of $667,750 stolen - $440,534 remaining outstanding - Theft over a period of 18 months - Pleas of guilty - Personal circumstances of applicant - Whether sentence of imprisonment should have been suspended

Legislation:

Criminal Code WA, s 278(7)

Result:

Leave to appeal refused

Category:    B

Representation:

Counsel:

Applicant:     Mr D Grace QC & Mr M L Tudori

Respondent:     Ms R V C Fogliani

Solicitors:

Applicant:     Michael Tudori & Associates

Respondent:     Commonwealth Director of Public Prosecutions

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

Dinsdale v The Queen (2000) 202 CLR 321

Lowndes v The Queen (1999) 195 CLR 665

Nguyen v The Queen (2001) 160 FLR 284

R v Barrick (1985) 7 Crim App R 78

R v Carmady (1998) 100 A Crim R 41

R v Greenburg (1993) 68 A Crim R 392

R v Miceli (1997) 94 A Crim R 327

Ryan v The Queen (2001) 206 CLR 267

The Queen v Sivandran, unreported; SCt of WA; Library No 960154; 22 March 1996

Case(s) also cited:

Adams v The Queen [2003] WASCA 91

Australian Coal & Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621

Bessell v The Queen, unreported; CCA SCt of WA; Library No 980199; 4 March 1998

Director of Public Prosecutions (Cth) v Carter [1998] 1 VR 601

Gardiner v The Queen, unreported; CCA SCt of WA; Library No 940121; 3 March 1994

Greer v The Queen, unreported; CCA SCt of WA; Library No 960173; 1 April 1996

Leslie v The Queen, unreported; CCA SCt of WA; Library No 940080; 21 February 1994

McLachlan v R [1999] WASCA 255

R v Burns (1994) 71 A Crim R 450

R v Cameron & Anor (1993) 171 LSJS 305

R v Edwards (1996) 90 A Crim R 510

R v Fischer [2003] SASC 114

R v Heferen (1999) 106 A Crim R 89

R v Hicks, unreported; CCA SCt of WA; Library No 970164; 9 April 1997

R v Jeffree, unreported; CCA SCt of WA; Library No 980150; 13 February 1998

R v Liddington (1997) 18 WAR 394

R v SLR (2000) 116 A Crim R 150

R v Stewart (1994) 72 A Crim R 17

R v Togias (2001) 127 A Crim R 23

R v White [1999] NSWCCA 60

R v Wood (2002) A Crim R 518

White v The Queen, unreported; CCA SCt of WA; Library No 7096; 22 April 1988

  1. JUDGMENT OF THE COURT:  This application for leave to appeal against sentence was heard on 12 September 2003.  After hearing argument the Court refused leave and undertook to publish…

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Smith v The Queen [2003] WASCA 235
Case
[2003] WASCA 235
Decision Date

CaseChat Overview and Summary

In the matter of Smith v The Queen, the applicant, previously a branch manager for Westpac Banking Corporation, was found guilty of 22 counts of theft as a servant. The total amount stolen amounted to $667,750, with $440,534 remaining outstanding at the time of her guilty pleas. The applicant was sentenced to a concurrent term of 2.5 years' imprisonment for each count, with eligibility for parole, and was given credit for the time already spent in custody. The applicant now seeks leave to appeal against the sentence, arguing that the trial judge erred in not imposing a wholly suspended sentence.

The central legal issue in this appeal was whether the trial judge erred in not imposing a wholly suspended sentence on the applicant. The applicant's counsel argued that the judge placed too much emphasis on the principles of general deterrence and did not adequately consider the applicant's personal circumstances, which they argued warranted a wholly suspended sentence. The Crown, on the other hand, submitted that the sentence was appropriate given the seriousness of the offence and the need for general deterrence.

The court found that the trial judge had not erred in imposing a custodial sentence. The court noted that the thefts were premeditated and extensive, involving a substantial amount of money stolen over a significant period of time. The court also considered the need for general deterrence, given the breach of trust by someone in a position of responsibility. The court held that the sentence imposed was appropriate and reflected the seriousness of the offence, the need for general deterrence, and the personal circumstances of the applicant. The court further noted that the judge had taken into account the applicant's personal circumstances, including her age and the impact of the sentence on her family, in arriving at the sentence. The court found that the trial judge had exercised her sentencing discretion appropriately and refused the application for leave to appeal.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

PARKER J
JUDGMENT OF THE COURT: This application for leave to appeal against sentence was heard on 12 September 2003. After hearing argument the Court refused leave and undertook to publish reasons for its decision at a later date. These are the reasons. The applicant was charged on an indictment alleging 25 counts of stealing as a servant, contrary to the provisions of s 378(7) of the Criminal Code (WA) ("the Code"). To 22 of these counts the applicant pleaded guilty, three counts being the subject of a nolle prosequi tendered to the Court by the prosecution. The counts to which the applicant pleaded guilty alleged offences between 26 November 1999 and 14 March 2001, which was a period of approximately 16 months. Each count was in similar terms, namely, that on a certain date at the territory of Christmas Island, the applicant, an employee of Westpac Banking Corporation Ltd, stole a sum of money being the property of Westpac Banking Corporation Ltd, contrary to s 378(7) of the Code. The total amount, the subject of the 22 counts to which the applicant pleaded guilty, amounted to $667,750, of which $440,534 remained outstanding at the time of the applicant's pleas. After the entry of pleas of guilty the applicant was remanded on bail to appear on 3 June 2003, on which date Kennedy DCJ heard sentencing submissions on behalf of the prosecution and the defence. Her Honour then remanded the applicant in custody for sentence on 6 June 2003 and on that day sentenced her to imprisonment to 2‑1/2 years on each count, to be served concurrently with each other and with an order for eligibility for parole. The sentence was backdated to 3 June 2003. The applicant seeks leave to appeal against the sentence so imposed on the following grounds:"The Learned sentencing judge erred in the exercise of sentencing discretion by failing to impose a wholly suspended sentence upon the applicant.Particulars1.Giving too much weight to the application of the principles of general deterrence in the circumstances of this offending. The facts in relation to the offences were the subject of a lengthy narration to the Court by the Crown prosecutor on 3 June 2003. They were summarised by the learned trial Judge on 6 June 2003 without going into the detail of the banking transactions undertaken by the applicant. It is unnecessary for the purposes of this appeal to recite that detail. The applicant was the branch manager of Westpac Banking Corporation on Christmas Island during the period encompassed by the indictment. She had commenced employment with Westpac Banking Corporation (Westpac) on 24 August 1989 and she was transferred to Christmas Island in May 1997 as the branch manager. In mid‑1998 a number of companies and individuals at Christmas Island incorporated two companies for the purpose of organising charter flights between Christmas Island, Jakarta and Singapore. The purpose was to promote business and tourism links with Christmas Island and also to provide travel services for people who resided at Christmas Island. Investors were to receive discount fares. The business began trading in early 1999 under the name Christmas Island Community Air. This was

Ratio Decidendi

Legal Principle Established

Established by: PARKER J

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