Smith v The State of Western Australia
[2017] WASCA 73
•19 APRIL 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SMITH -v- THE STATE OF WESTERN AUSTRALIA [2017] WASCA 73
CORAM: BUSS P
MAZZA JA
MITCHELL JA
HEARD: 10 APRIL 2017
DELIVERED : 10 APRIL 2017
PUBLISHED : 19 APRIL 2017
FILE NO/S: CACR 53 of 2017
BETWEEN: NATHAN SMITH
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :SWEENEY DCJ
File No :IND 1644 of 2016
Catchwords:
Criminal law - Appeal against sentence - Stealing - Opportunistic stealing of $362,450 from elderly couple - Where appellant endeavoured to return the stolen money the day after the offence occurred - Whether sentence of 12 months' immediate imprisonment manifestly excessive - Whether suspended sentence should have been imposed - Whether sentencing judge erred in fact by finding that the appellant had preyed on the elderly for monetary gain
Legislation:
Criminal Code (WA), s 378
Sentencing Act 1995 (WA), s 76
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant: Mr S Vandongen SC & Mr G Yin
Respondent: Ms K C Cook
Solicitors:
Appellant: D G Price & Co, Barristers & Solicitors
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Carter v The State of Western Australia [No 2] [2015] WASCA 59
Fogg v The State of Western Australia [2011] WASCA 11
Heaney v The State of Western Australia [No 2] [2013] WASCA 238
Higgs v The State of Western Australia [2014] WASCA 100
Lynden v The State of Western Australia [No 2] [2013] WASCA 186
McIntyre v The State of Western Australia [2016] WASCA 150
Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600
Rini v The State of Western Australia [2015] WASCA 124
Tapper v The State of Western Australia [2016] WASCA 140
REASONS OF THE COURT: The appellant appeals against his sentence of 12 months' immediate imprisonment imposed in respect of a single offence of stealing, contrary to s 378 of the Criminal Code (WA). He contends that his sentence should have been suspended or conditionally suspended.
After hearing the appeal, the court made the following orders:
1.Leave to appeal on ground 1 is refused.
2.Leave to appeal on ground 2 is granted.
3.The appeal is allowed.
4.The sentencing decision of the primary judge is set aside.
5.The appellant is resentenced to 10 months' imprisonment.
6.The new sentence of imprisonment is suspended for a period of 12 months, pursuant to s 76 of the Sentencing Act 1995 (WA).
7.The new sentence takes effect on 10 April 2017.
What follows are our reasons for making those orders.
Circumstances of offending
On 1 February 2016, the appellant was painting the exterior of the complainant's house in a Perth suburb. The complainant was an 82‑year‑old man who lived with his wife. She suffered from dementia. The appellant had presented at the complainant's house, unsolicited, and offered to do the work. The complainant and appellant agreed on a reasonable price for the work. There was no suggestion that the appellant was not genuinely seeking work, and the appellant performed work on the complainant's house over a number of days.
On the morning of 1 February 2016, the appellant asked to use the complainant's toilet. The complainant's wife gave him permission to do so. The appellant observed a gun safe in the toilet, on which the complainant had inadvertently left the keys. The appellant opened the gun safe and saw a very large amount of cash in the safe. Although he did not count it, the safe contained $362,450.
The appellant took all of the cash from the safe and, feigning illness, left the complainant's house. The appellant drove to Kalgoorlie, where he stayed the night of 1 ‑ 2 February 2016. He then decided to return the money, hoping that the complainant would not have noticed that it was missing, by going back to the complainant's house to complete the unfinished painting job. The appellant telephoned the complainant to say he was coming back. The appellant was driving through Southern Cross on his way back to Perth when he was stopped by police for speeding at 9.30 am on 2 February 2016.
Unfortunately for the appellant, the complainant had noticed that the money was missing and had reported its theft to police. The police officers who stopped the appellant's car in Southern Cross arrested him and located the stolen cash, together with about $20,000 which the appellant had won at Crown Casino, in a suitcase containing the appellant's clothing. The appellant had won the $20,000 before the offending.
The appellant was charged with stealing. None of the money had been spent, although the State did not return it to the complainant until after the appellant's sentencing on 16 February 2017.
The offence had a significant psychological impact on the complainant. He suffered severe anxiety when he discovered that his life savings were gone. The complainant needed the money to care for his wife, and had stored it out of concern that she should have ready cash if something happened to him. The complainant had become distrustful of others and had been placed in a stressful financial position in the year between the commission of the offence and the appellant's sentencing.
It may also be noted that the complainant had considerable difficulty in working out how much cash was stolen. He initially believed that he had lost only $130,000. The appellant admitted that he had stolen much more than that.
The appellant's personal circumstances
The appellant was 22 years old at the time of the offence, and 23 years old at the date of sentencing. He had an ordinary upbringing in the United Kingdom, with a very loving and supportive family. He is of low to average intelligence. He left school at the age of about 16 to work in his grandfather's carpet laying business, and had come to Australia to look for labouring work on a number of occasions. The appellant had returned to Australia about three weeks before the offending.
The appellant had suffered from obsessive compulsive disorder as a child and young adult, and had a past history of depression. He was a person who had difficulty in resisting impulses, and had engaged in problematic gambling. The appellant has self‑excluded himself from Crown Casino after winning the $20,000 out of fear that he would return and lose the money. However, these psychological issues had not previously brought the appellant into contact with the criminal justice system. The appellant had no prior criminal record in Australia or the United Kingdom.
A pre‑sentence psychological report postulated that the appellant was tantalised by the discovery of an unexpectedly large amount of money in the safe, which created a sense of excitement that the appellant did not resist. It was not contended that the appellant had gambling debts or intended to use the money for gambling.
The appellant's family were extraordinarily supportive after his arrest. The appellant's parents came to Australia to stay with the appellant while he dealt with these legal issues. He was genuinely remorseful, and pleaded guilty at the first reasonable opportunity (the 12‑month delay occurring because of negotiations about charges with which the State did not ultimately proceed). He had undertaken private forensic psychological treatment and made progress in understanding the factors that contributed to his offending behaviour. The view expressed in a privately obtained psychological report was that the appellant's awareness of the factors that motivated his offending, in conjunction with his understanding of the gravity and impact of his offending on others, likely reduce his risk of offending in a similar manner in the future. The reporting psychologist indicated that the appellant did not present with current forensic treatment needs. While on bail, the appellant had undertaken some volunteer work in an attempt to contribute to society. He has an offer of employment on his return to the United Kingdom.
The sentencing judge's approach
The sentencing judge referred to the circumstances of the offending and the appellant's personal circumstances. She identified the following mitigating factors:
1.the appellant's plea of guilty at the earliest reasonable opportunity, for which the sentencing judge allowed a 25% reduction under s 9AA of the Sentencing Act;
2.the appellant's genuine remorse;
3.the appellant had undertaken counselling, in an attempt to reduce his risk of reoffending, and volunteer work;
4.the offence was out of character;
5.the appellant's youth;
6.the appellant's supportive family and history of employment, which increased his prospects for rehabilitation; and
7.all of the money was recovered, and the appellant had planned to return it before he was stopped by police.
The sentencing judge identified the following aggravating factors:
1.the appellant stole from an elderly couple;
2.while he did not breach trust in the traditional sense, he was trusted to the extent of being invited into the complainant's house;
3.the appellant knew that he was taking a huge amount of money;
4.the appellant drove to Kalgoorlie, which was not a short drive, before deciding to return the money; and
5.there was an element of deception when the appellant feigned illness so he could leave on that account.
The sentencing judge reached her conclusion as to the appropriate sentence in the following manner:
Criminality is certainly not exclusively determined by considering the sum. A person might steal a much lesser sum in greater breach of trust. But nevertheless it's a relevant factor, particularly because it shows the extent of the loss that you were prepared to visit on this elderly couple.
I'm satisfied the offence must be met with a term of imprisonment because nothing less would capture the criminality of your offending behaviour. That much is conceded. Your counsel, however, urges upon me a suspended term. I mustn't impose an immediate term unless it would be inappropriate to suspend it. That involves taking into account all of the matters in mitigation again, but also pitting against them the seriousness of the offending. I am mindful, of course, of the fact that the victim will now get all of his money back.
Notwithstanding the matters in mitigation, however, I don't consider that it really could be appropriate to suspend a term when a person has taken $360,000 from two elderly pensioners. Sentencing is not just about your psychological needs. It is about just punishment. It is about deterring you from offending again. It is also about sending a message to the community that people who prey upon the elderly for monetary gain will be met with serious punishment. And that is what you did here.
Accordingly, the term must be an immediate term of imprisonment. I do, however, intend to impose a quite lenient term, given all of those matters in mitigation that I've mentioned and given that, as you are a first offender, a term of imprisonment is going to come as a shock, and my assessment is that a lenient term is likely to specifically deter you just as much as a more lengthy term of imprisonment.
In addition, although you stole an enormous amount of money, this involved a moment of offending coupled with - and this is part of the equation - coupled with the more lengthy desire to then escape the law by running. But that is still captured in that single day and it doesn't involve, as I've said, weeks of devious dishonesty. For those reasons I feel it is appropriate to impose a lenient term of imprisonment. (emphasis added)
The sentencing judge imposed a term of 12 months' immediate imprisonment. The appellant was made eligible for parole. His sentence was backdated to 6 February 2017 to take account of 10 days which the appellant had spent in custody on remand.
Ground of appeal 1: alleged error of fact
Ground of appeal 1 alleges that the sentencing judge erred by finding that the appellant had 'preyed on the elderly victims for monetary gain'.
The focus of this ground of appeal is the part of the sentencing judge's remarks which is emphasised in the above quote. The appellant submits that there was no evidence to support the express finding that the appellant preyed on the elderly victims for monetary gain. It is submitted that the appellant's offending was unplanned and opportunistic. The appellant says that the theft did not involve him targeting the victims because they were elderly or relying on their age as a vulnerability that would enable him to be better able to commit the offence. The appellant submits that it follows that the sentencing judge erred in fact in a manner that was material to the exercise of her sentencing discretion.
There is no merit in this ground. When the sentencing judge's remarks are read as a whole, it is clear that she did not sentence the appellant otherwise than on the basis that his offending was unplanned and opportunistic. The sentencing judge did not sentence the appellant on the basis that he targeted elderly victims in a planned course of offending. The appellant preyed on elderly victims in the sense that he took the opportunity to steal all of the life savings of an elderly couple. Considered as a whole, the sentencing judge's remarks show that she did not misapprehend the circumstances of the offending in the manner which the appellant alleges. Leave to appeal on this ground should be refused.
Ground of appeal 2: manifest excess
Ground of appeal 2 alleges that the sentence of immediate imprisonment was, in all of the circumstances, manifestly excessive. The appellant accepts that a sentence of imprisonment was called for, and does not complain about the length of the term imposed. However, he contends that the sentence ought to have been suspended or conditionally suspended.
General principles
The general principles governing appeals contending that a sentence is manifestly excessive are well established:
1.A ground of appeal which alleges that a sentence is manifestly excessive asserts an implied error. It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
2.The discretion conferred on sentencing judges is of fundamental importance and this court may not substitute its opinion as to sentencing for that of the sentencing judge merely because it would have exercised the discretion in a different manner. The appellant must demonstrate the sentence imposed to be unreasonable or plainly unjust.
3.The guidance afforded by comparable cases is flexible rather than rigid. The mere fact that a sentence is within the range of other sentences imposed for similar offending does not necessarily establish that there was an appropriate exercise of the sentencing discretion in the particular case. Similarly, the mere fact that a sentence is outside the range does not necessarily establish that the exercise of the sentencing discretion in the particular case miscarried.
4.A sentencing range for comparable offences is merely one of the factors to be taken into account in deciding whether an individual sentence is manifestly excessive. A range of sentences customarily imposed is of significance for the purpose of ensuring broad consistency in the sentencing of offenders in broadly comparable cases. However, a sentencing range for comparable cases does not fix the range of a sound exercise of the sentencing discretion in a particular case.
5.When an appellate court dismisses an appeal against sentence, and when it allows an appeal against sentence and resentences the offender, the court's decision on the sentencing outcome does not, of itself, fix the upper or lower limit of the range.
It is also well established that a sentencing judge must be positively satisfied that it is not appropriate to suspend or conditionally suspend a term of imprisonment before the term can be ordered to be served immediately. The discretion to suspend or conditionally suspend a term of imprisonment is not confined by considerations relating to rehabilitation. The objective features of an offence may, in a particular case, outweigh the personal considerations of rehabilitation.[1]
[1] Tapper v The State of Western Australia [2016] WASCA 140 [68] ‑ [70] and cases there cited.
In the circumstances of this case, the question is ultimately whether it was open to the sentencing judge to conclude that the seriousness of the stealing offence and considerations of general deterrence outweighed the mitigating factors and made it inappropriate to suspend or conditionally suspend the sentence of imprisonment.[2]
Maximum penalty
[2] See Tapper [75]; McIntyre v The State of Western Australia [2016] WASCA 150 [19].
The maximum penalty for the offence of which the appellant was convicted was 7 years' imprisonment.
Customary standards of sentencing
Both parties refer to the observations of Newnes JA, with whom Pullin and Mazza JJA agreed, in Heaney v The State of Western Australia [No 2]:[3]
While the amount stolen is a relevant factor for sentencing purposes, it is not determinative, or even necessarily the most important consideration. Other relevant factors include the number of offences, the frequency of the offending and the period over which it occurred, the nature and extent of the offending on the victims, and the offender's knowledge of the financial impact it would have. (citations omitted)
[3] Heaney v The State of Western Australia [No 2] [2013] WASCA 238 [22].
Heaney was a case of stealing as a servant, a circumstance of aggravation which increases the maximum penalty to 10 years' imprisonment. The court also observed:
In relation to the offence of stealing as a servant, the decisions of this Court have made it clear that the offence is serious, involving as it does the abuse of a position of trust. In such a case, significant weight is given to the need for general deterrence with an associated reduction in the weight given to personal antecedents such as prior good character. Indeed, 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. [21] (citation omitted)
The appellant was not charged with stealing as a servant, and it was not alleged that he abused a position of trust in the sense in which that phrase was employed in Heaney. The comments which the court made in relation to the importance of general deterrence do not apply with the same force in the present case. However, the identified factors relevant to assessing the criminality of an offender's conduct remain relevant in cases of stealing where that circumstance of aggravation is absent.
Heaney was a case of a 68‑year‑old tax accountant, who was convicted of two counts of stealing as a servant, and four counts of stealing, on dates between December 2010 and October 2011. The offender's mode of operation was to request clients to make out cheques to him for money purportedly owed to taxation authorities, and use the resulting funds for his own purposes. In relation to the four counts of stealing, the offender's mode of operation was to arrange with clients for their tax refund to be paid into his bank account, from which he would deduct charges for the preparation of the tax return and forward the balance to the client's bank account. The offender instead used all of the funds for his own purposes. The total amount stolen was about $77,000. Heaney was sentenced to a total effective term of 2 years' immediate imprisonment on a fast-track plea of guilty. His appeal on totality grounds was dismissed.
Heaney, and the cases to which it refers, are not comparable to the present case. The offending involved stealing as a servant and abusing a position of trust on a number of occasions over an extended period, although the amount of money stolen, and the impact of the theft on the victims, was much less than in the present case.
The State refers to three cases which it described as broadly comparable, noting that there are few authorities dealing with stealing in isolation.
In Rini v The State of Western Australia,[4] the 36‑year‑old offender with a past record of dishonesty offences was convicted, after trial, of stealing approximately $40,000 worth of property from equipment hire premises. A perimeter fence and a number of vehicles were damaged during the offence. The court dismissed an appeal against a sentence of 2 years 6 months' immediate imprisonment.
[4] Rini v The State of Western Australia [2015] WASCA 124.
Rini is not comparable to the present case. The offender was older with a poor record, and did not plead guilty. The offending was planned, and the property was not recovered, although its value was much less than the sum involved in the present case.
In Higgs v The State of Western Australia,[5] the offender entered equipment hire premises and stole an excavator and skid steer loader valued at $80,000. The offence was found to be planned, and involved the offender cutting a perimeter fence and drilling through locks on the excavator and loader. The offender sold the stolen equipment, which was subsequently recovered, for $1,000. The offender, who was 24 years old at the time of the offence, had a poor record which included convictions for offences of dishonesty. The offender pleaded guilty at the first reasonable opportunity, and received a sentence of 2 years 6 months' immediate imprisonment. He was also sentenced for other offences. The offender's appeal on parity grounds was dismissed.
[5] Higgs v The State of Western Australia [2014] WASCA 100.
Again, Higgs is not comparable to the present case. The offence was planned and the antecedents of the offender were much less favourable than those of the appellant. The value of the property stolen was less, and the benefit received by the appellant was only $1,000. The utility of the case is also reduced by the fact that the only ground of appeal concerned an alleged failure to apply the parity principle.
In Lynden v The State of Western Australia [No 2],[6] the offender entered a shop while the shopkeeper was at the rear of the premises and took a handbag from behind the counter. The handbag contained cash and jewellery to the value of $12,450, which was not recovered. The appellant had a lengthy criminal record, which included offences of dishonesty, a long history of substance abuse and sporadic employment. He pleaded guilty at the first reasonable opportunity and received a sentence of 20 months' immediate imprisonment. His appeal on the ground of manifest excess was dismissed.
[6] Lynden v The State of Western Australia [No 2] [2013] WASCA 186.
Lynden is closer to the present case, in that it involved a single count of opportunistic stealing. However, the value of the property stolen (both in fact and as it would have appeared to the offender at the time of the theft) was much less than in the present case. The antecedents and prospects for rehabilitation of the offender were much worse than those of the appellant, and the offending conduct was not uncharacteristic.
We also note a recent case in which an offender convicted of stealing as a servant received a suspended term of imprisonment. In Carter v The State of Western Australia [No 2],[7] the offender, who was employed at a newsagency, stole scratch cards to the value of $17,647 over a period of about 3 months. The offender took money from the cash register on the winning cards, and disposed of the losing cards. She used the proceeds to repay outstanding debts. The offender was a 22‑year‑old single mother of a very young child, who pleaded guilty and had no prior convictions. She had a number of psychological issues, and had taken steps towards rehabilitation. The court set aside a sentence of 12 months' immediate imprisonment as manifestly excessive and substituted a suspended term.
[7] Carter v The State of Western Australia [No 2] [2015] WASCA 59.
Carter involved a more sustained course of offending, which had an impact on the livelihood of the newsagency owner, but the value of the money stolen was much less than was involved in the present case. The antecedents of the offender were broadly similar to those of the appellant.
Seriousness of the offending
The most significant aggravating feature of the present case was the very large amount of money stolen. As noted in Heaney, the amount stolen is not determinative, or even necessarily the most important consideration. However, the fact that the appellant was willing to take what was obviously a very large sum of money from an elderly couple was a significant aggravating feature of the offending. The appellant took all of that money, in circumstances where he must have known that its loss was likely to have a devastating financial impact on his victims.
However, those aggravating features of the offending are, to a substantial extent, counterbalanced by the fact that, within 24 hours of stealing the money, the appellant decided to return it. He was on his way to do so when apprehended by police. The fact that police held the money between his arrest and sentence was not a matter within the appellant's control. The appellant cooperated with police in identifying the amount stolen from the complainant, who had thought that only $130,000 had been taken.
It is also significant that the offending involved a single uncharacteristic impulsive act.
Appellant's personal circumstances
The appellant's personal circumstances are noted above. As well as the isolated and uncharacteristic nature of the offending, involving an impulsive act by a young man, it is relevant to note the steps which the appellant had taken towards his own rehabilitation.
Conclusion as to manifest excess
This is a highly unusual case. The very large sum stolen, and the impact which the loss of that money would have had and would have been appreciated by the appellant to have had on the elderly victims, meant that the offence was serious. However, there were unusual and powerful mitigating factors. As well as the appellant's very good antecedents, there was his decision to return the money within 24 hours of taking it and the steps he had taken towards his own rehabilitation.
The offence was unplanned, and involved the appellant making a stupid and dishonest decision when he unexpectedly discovered a very large amount of cash. The appellant's demonstrated remorse and his steps towards rehabilitation meant that there was little to be achieved, from the perspectives of personal deterrence, community protection or rehabilitation, by sending this young man to prison for his first uncharacteristic offence.
General deterrence was a relevant sentencing factor. Having regard to the potential reward of obtaining a large amount of cash, a sentence of immediate imprisonment would ordinarily be justified. However, the significance of general deterrence in the present case is reduced by the circumstance that the appellant promptly decided to, and took steps to, return the money. This was not simply an empty aspiration of paying the money back at some future point in time. The appellant had not spent any of the stolen money, was in a position to return it all and was in the process of driving back to do so when he was apprehended. Further, general deterrence is not as significant a factor as it is in cases which involve the abuse of a position of trust, such as stealing as a servant.
The appellant's offending was brief and opportunistic. The decision to return the money meant that he would have obtained no actual benefit from the offence, even if he had not been apprehended. The appellant had not targeted elderly persons as victims because of their vulnerability, and the offending was not planned. When the nature of the offending is understood, general deterrence does not demand a sentence of immediate imprisonment irrespective of the other mitigating features of the case.
Additional significant mitigating features were the appellant's relative youth, the absence of any criminal record, his plea of guilty at the first reasonable opportunity and his genuine remorse.
As has been noted on a number of occasions,[8] the courts do not ordinarily impose a term of immediate imprisonment on youthful offenders of prior good character without considerable pause and reflection. There are circumstances where the seriousness of the nature and circumstances of offending may require a sentence of immediate imprisonment. While mitigating factors must be given appropriate weight, they must not be allowed to lead to the imposition of a penalty which is disproportionate to the gravity of the offence.[9] However, youth combined with prior good character may lead a sentencing court to refrain from imposing what would otherwise be an appropriate custodial sentence.
[8] See, for example, McIntyre [18], citing Fogg v The State of Western Australia [2011] WASCA 11.
[9] Munda v The State of Western Australia [2013] HCA 38; (2013) 249 CLR 600 [53].
This was not a case where the seriousness of the offence can be seen to outweigh the matters personal to the appellant to which we have referred. In all of the circumstances of this case, in particular the appellant's demonstrated intention to return the money which he had impulsively taken, his relative youth, his plea of guilty at the first reasonable opportunity, his very good antecedents, his genuine remorse and his positive steps towards rehabilitation, it was not open to the sentencing judge to conclude that it was inappropriate to suspend or conditionally suspend the sentence of imprisonment. The decision to impose a term of immediate imprisonment was unreasonable or plainly unjust in all of the circumstances. Having regard to all of the circumstances of the case, the only reasonable view was that a suspended or conditionally suspended imprisonment order was not inappropriate.
It was for these reasons that we allowed the appeal and set aside the sentence imposed by the sentencing judge. Having regard to the fact that that the appellant has actually served about 2 months of the term, it was appropriate to substitute a sentence of 10 months' imprisonment, suspended for 12 months.
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