Szep v Police

SZEP v POLICE
[2002] SASC 144
Magistrates Appeal

Gray J This is an appeal against sentence.
Melissa Ann Szep pleaded guilty before a magistrate to a charge of attempted false pretences.[1] She was convicted and sentenced to imprisonment for six months. This sentence was suspended.
[1] On the 5th day of December 2002 at Noarlunga Centre in the said state with intent to defraud attempted to obtain from Grahams Jewellers a gold chain of the value of $2,000 by falsely pretending that she was authorised to collect the chain with the authority of the credit card holder. Sections 195(1)(a) and 270A(1) of the Criminal Law Consolidation Act, 1935. This is a minor indictable offence.
The Circumstances of the Offence
Ms Szep and her associate Andrew Webster were involved in an attempt to obtain a gold chain from Graham’s Jewellers Noarlunga Centre by false pretence. At about 2.00pm on 5 December 2002, Mr Webster claiming to be Jason Richards ordered a gold chain to the value of $2000 over the phone. He provided a false name and credit card number by phone.
Later in the day Mr Webster telephoned again. He continued to use the name Jason Richards. He advised staff that he could not collect the chain in person. He claimed to have arranged for his secretary to collect the chain. He was advised that his secretary would need to provide identification and company letterhead authorising the collection.
Before attending at the jewellers Ms Szep had obtained a business letterhead for the purposes of falsely establishing the appearance of authorisation.
Ms Szep initially attended at the jeweller’s at 8.45 pm, shortly before closing time. Ms Szep told staff that she had been instructed to collect a package for her boss. She produced the false letterhead and provided a false name of her alleged employer. She was aware that a credit card number was being used without authority. When questioned about identification she left the shop ostensibly to speak to her employer. When she returned at closing time she observed police in the shop. She fled. The police followed and were able to speak with her in the car park at Noarlunga centre. When questioned she provided an entirely false account of her alleged employment. The police did not charge her at this time.
Some days later Ms Szep became aware that the police had been to her home enquiring about credit card fraud. On 12 December 2002 the police arrested Ms Szep. When interviewed subsequently by the police she declined to answer any questions on legal advice.
Mz Szep pleaded guilty to the offence at an early stage.
Sentencing Remarks
Following the plea, counsel outlined Ms Szep’s personal antecedents and submitted that the magistrate should exercise his discretion pursuant to section 16 of the Criminal Law (Sentencing) Act 1988 (SA) and proceed without recording a conviction.
The magistrate rejected this submission:
Defendant, you appear as a 19 year old person who has no prior convictions at all.
I think your offending serious enough to warrant an order for imprisonment. In normal circumstances I would consider a period of imprisonment in the order of nine months appropriate. However, given that you have pleaded guilty you are entitled to some discount on that sentence of imprisonment. I would reduce the sentence of imprisonment to a period of six months to reflect the plea of guilty.
The only difficult issue in your case is whether you should suffer immediate imprisonment or whether there is some basis upon which to allow for a suspended sentence of imprisonment. I must say there is much to commend immediate imprisonment given my impression that you were equally to blame as any other person in this offence, and particularly as you have told blatant lies during sentencing submissions.
On the other hand however, as I have already mentioned, you are only 19 years of age with no prior convictions at all. Your counsel tells me you have severed all ties with the persons whom you associated with in December 2002. I am not at all sure I believe that but apparently there is a person Andrew Webster in custody charged with false pretence offences. I think the scales weigh marginally in your favour. I am therefore prepared to allow for a suspended sentence of imprisonment.
The sentence of six months imprisonment was suspended upon Ms Szep entering into an 18 month good behaviour bond. The conditions included the performance of 100 hours of community service.
Grounds of Appeal
Counsel’s Submissions
Counsel for Ms Szep submitted that the sentence of imprisonment should be set aside. She was a first offender. The magistrate had failed to adequately consider the provisions of section 11 of the Criminal Law (Sentencing) Act. The magistrate failed to consider all other sentencing options before imposing the suspended term of imprisonment.[2] In Ms Szep’s particular circumstances a conviction should not have been recorded.[3]
[2] R v Doecke (1999) 205 LSJS 304, R v O'Keefe [1969] 2 QB 29; Yengi v Police [2002] SASC 220; Budnjo v Police [2003] SASC 14
[3] Yengi v Police [2002] SASC 220
Counsel for the Crown conceded that the magistrate had erred in his sentencing approach. It was accepted that the magistrate had not considered all other sentencing options before determining that it was appropriate to impose a sentence of imprisonment. It was further accepted that in the circumstances of the present case, particularly as Ms Szep was a first offender, a sentence of imprisonment was inappropriate. These concessions were correctly made. Counsel for the Crown accepted that in these circumstances Ms Szep should be re-sentenced by this court. However, it was submitted that a conviction should be recorded in this case.
Sentence of Imprisonment
As earlier observed, it was conceded that it was inappropriate that there be an order for imprisonment in this case. It is well settled that an order for imprisonment should not be imposed where other sentencing options are available. The correct approach in the sentencing process was discussed by Lord Parker in R v O'Keefe[4]:
... it seems to this court that before one gets to a suspended sentence at all, the court must go through the process of eliminating other possible courses such as absolute discharge, conditional discharge, probation order, fines, and then say to itself: this is a case for imprisonment, and the final question, it being a case for imprisonment, should be: is immediate imprisonment required, or can a suspended sentence be given?
[4] [1969] 2 QB 29 at 32; See also Wood v Samuels (1974) 8 SASR 465 at p469 and The Queen v Palliaer (1984) 35 SASR 569.
The magistrate erred in his sentencing approach in this case.
Re-sentencing
Personal Antecedents
Ms Szep was aged 19 years at the time of the offending. She presently resides with her mother and sister. Apparently her parents have separated. She was said to come from a supportive family. She has no prior criminal record.
Ms Szep attended secondary school and completed Year 12 obtaining her South Australian Certificate of Education. After completing schooling Ms Szep undertook casual retail work. Little information was disclosed regarding her past employment history. It was said she had worked for a period at Myer. Most recently she had worked at a suburban fruit and vegetable shop. Counsel for Ms Szep was unable to inform the court whether Ms Szep had continued with employment since being sentenced in February 2003.
Counsel submitted that Ms Szep had intended to commence nursing training through TAFE in mid 2003. However, no particularity was provided. Counsel was unable to advance the matter beyond recounting her instruction that Ms Szep had an intention to train as a nurse. It appears that Ms Szep has yet to make application for entry.
Culpability
Ms Szep’s criminal conduct was serious. The credit card details provided by her associate to the jeweller came from a customer of the fruit and vegetable business where Ms Szep was employed. The customer was a regular shopper at the store. Earlier in these reasons, the circumstances of her offending are outlined.
Before this court counsel confirmed that Ms Szep admitted to each of the elements of the offence. However counsel provided little detail about her client’s involvement and criminal conduct. It was said that Ms Szep had no knowledge as to how Mr Webster obtained the credit card number. She acknowledged that she was acting dishonestly. She knowingly provided a false name, false letterhead and pretended to be employed. She was aware that a credit card number was being used without authority. Her only explanation for her conduct was that she was being manipulated and pressured by her associate. It was said that she had a business and personal relationship with Mr Webster and was feared for her safety if she did not comply with his requests.
Since being apprehended by the police Ms Szep, apart from making herself herself available to police for further questioning, has provided little assistance or information about the offending. In particular she has disclosed minimal information about the involvement of Mr Webster or others alleged to have been engaged in manipulation and pressure.
Recording of a Conviction
Counsel for Ms Szep submitted that in the circumstances the court should proceed without recording a conviction. Section 16 of the Sentencing Act provides:
Where a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both and the court is of the opinion—
(a)     that the defendant is unlikely to commit such an offence again; and
(b)     that, having regard to—
(i)the character, antecedents, age or physical or mental condition of the defendant; or
(ii)     the fact that the offence was trifling; or
(iii)    any other extenuating circumstances,
good reason exists for not recording a conviction,
the court may impose the penalty without recording a conviction.
In Sims v Police[5] Bleby J observed:
…the assumption behind s 16 of the Sentencing Act is that, in most cases, a conviction will be recorded. Section 16 is by way of exception to the normal rule. In order to exercise the power conferred by s 16, the court would have to identify what it was that provided good reason for not recording the conviction…
[5] [2000] SASC 102 at [7]
In Crosby v Police[6] Bleby J further commented that the considerations in section 16 are conditions precedent to the exercise of a discretion under the section. Once these conditions are satisfied the question becomes whether the enlivened discretion ought to be exercised.
[6] [2002] SASC 213
Counsel for the Crown submitted that there is an important public interest in a conviction being recorded. It was said that Ms Szep’s work in the retail industry would lead to contact with customer’s credit card details. It would in the ordinary course involve handling money for others. A nursing career would also involve the need for financial responsibility. It was said that the public interest on this occasion called for the recording of a conviction.
In deciding whether to impose a conviction, the court should weigh the benefit to the appellant of proceeding without conviction with the public interest in a conviction being recorded. In R v Briese[7] the Queensland Court of Criminal Appeal observed:
…the effect of such an order is capable of considerable effect in the community. Persons who may have an interest in knowing the truth in such matters include potential employers, insurers, and various government departments including the Immigration Department…For present purposes it is enough to note that the making of an order [to proceed without conviction] has considerable ramifications of a public nature, and courts need to be aware of this potential effect...
On the other hand the beneficial nature of such an order to the offender needs to be kept in view. It is reasonable to think that this power has been given to the courts because it has been realised that social prejudice against conviction of a criminal offence may in some circumstances be so grave that the offender will be continually punished in the future well after appropriate punishment has been received. This potential oppression may stand in the way of rehabilitation…
...
The express mention…of the nature of the offence as a factor to which the court must have regard in the exercise of the discretion whether or not to record a conviction suggests that there are certain types of offences which will call for the recoding of a conviction…A court will be more easily persuaded against the recording of a conviction where there are no prior convictions or a very minor history and where the offence in question is a so called ‘victimless’ crime.
[7] (1996-1997) 92 A Crim R 75 at 79-81
The Tasmanian Court of Criminal Appeal also considered this issue in Attorney-General v Smith[8].
By not even recording a conviction, the learned judge had given no expression to the community’s disapproval of the admittedly criminal conduct, and had given no expression to the need for general deterrence ... [It was] submitted that the community had an interest and expectation that such a crime would at least be condemned by a recorded conviction.
... As was pointed out in R v Briese, ex parte Attorney-General [1998] 1 Qd R 487 at 491, a failure to record a conviction is capable of considerable effect in the community. Persons who might have an interest in knowing the truth in such matters include potential employers, insures and various government departments. ...
In R v Brown, ex parte Attorney-General [1994] Qd R 182 at 194, it was noted that the recording of a conviction is in itself an element of punishment of the offender and may encourage him or her not to engage in further criminal activity and conceivably it could act some deterrence to others if it becomes known.
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.
These remarks are of relevance to the present case.
[8] [2002] TASSC 10 at [18] -[26]
Conclusion
Ms Sezp’s conduct involved serious criminal offending. No clear basis has been made out to suggest that a conviction will impede or restrict her future career prospects. Nothing was put before the court to support a suggestion that any specific career path would be affected. The suggestion that Ms Szep had been manipulated is a mitigating factor, however that does not carry sufficient weight to justify this court proceeding without recording a conviction.
This is not an appropriate case in which to exercise the court’s discretion to proceed without conviction. The criminal conduct of Ms Szep was too grave. The offence involved extensive preparation and planned deception. Ms Szep was a party to at least part of that planning. There was an intended victim. Ms Szep’s deception continued when first questioned by the police.
It is appropriate to record a conviction and to release Ms Szep on a good behaviour bond. The bond should be for a period of two years with supervision[9]. It is also appropriate that Ms Szep perform 96 hours of community service. Ms Szep’s rehabilitation will be assisted by supervision from a correctional services officer. Supervision will provide an additional benefit. Ms Szep will have an appropriate independent person to whom she can turn for advice, direction and assistance.
[9] Regard has been had to the 3 months already spent by Ms Szep on the good behaviour bond imposed by the magistrate.
The appeal is allowed. The sentence imposed by the magistrate is set aside. Ms Szep is resentenced as follows:
- a conviction is recorded
-Ms Szep is released on entering into a bond to be of good behaviour for two years
-Ms Szep is to be under the supervision of a correctional services officer and to obey the lawful directions of that officer including the attendance to any courses that might be directed
-the bond is to include a term that Ms Szep will undertake 96 hours of community service within the next 12 months
-Ms Szep is to pay court fees of $164.00.
LIST OF CITATIONS WHERE THEY APPEAR IN THE JUDGMENT
1 On the 5th day of December 2002 at Noarlunga Centre in the said state with intent to defraud attempted to obtain from Grahams Jewellers a gold chain of the value of $2,000 by falsely
pretending that she was authorised to collect the chain with the authority of the credit card holder. Sections 195(1)(a) and 270A(1) of the Criminal Law Consolidation Act, 1935. This is a minor indictable offence.
2 R v Doecke (1999) 205 LSJS 304, R v O'Keefe [1969] 2 QB 29; Yengi v Police [2002] SASC 220; Budnjo v Police [2003] SASC 14
3 Yengi v Police [2002] SASC 220
4 [1969] 2 QB 29 at 32; See also Wood v Samuels (1974) 8 SASR 465 at p469 and The Queen v Palliaer (1984) 35 SASR 569.
5 [2000] SASC 102 at [7]
6 [2002] SASC 213
7 (1996-1997) 92 A Crim R 75 at 79-81
8 [2002] TASSC 10 at [18] -[26]
9 Regard has been had to the 3 months already spent by Ms Szep on the good behaviour bond imposed by the magistrate.

[2003] SASC 144

23 May 2003