Szep v Police - [2003] SASC 144

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…

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 Szep v Police

Details

AGLC: Szep v Police [2003] SASC 144
Case: [2003] SASC 144
Decision Date: 23 May 2003

CaseChat Overview and Summary

The appellant, Szep, appealed against her conviction and sentence imposed by a magistrate. The offence in question was an attempted theft of a gold chain valued at $2,000 from Grahams Jewellers, which occurred on 5th December 2002 at Noarlunga Centre. The legal issues before the court involved the appropriateness of the sentence imposed by the magistrate and whether the appeal should be allowed.

The court considered whether the sentence was just and appropriate, taking into account the circumstances of the offence and the appellant's background. The court also reviewed the sentencing principles and the applicable legislation, including sections 195(1)(a) and 270A(1) of the Criminal Law Consolidation Act, 1935. The court found that the sentence imposed by the magistrate was too severe and did not adequately reflect the circumstances of the offence.

The court allowed the appeal and set aside the sentence imposed by the magistrate. The court resentenced the appellant, imposing a conviction, ordering her to be released on a bond to be of good behaviour for two years, and requiring her to undertake 96 hours of community service within the next 12 months. The court also ordered the appellant to pay court fees of $164.00. The court took into account the time already served by the appellant on the good behaviour bond imposed by the magistrate.

In summary, the court allowed the appeal and resentenced the appellant to a conviction, a good behaviour bond for two years, community service, and payment of court fees. The court found that the original sentence was too severe and did not adequately reflect the circumstances of the offence.

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

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 JUDGMENT1 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 143 Yengi v Police [2002] SASC 2204 [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 2137 (1996-1997) 92 A Crim R 75 at 79-818 [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.

Ratio Decidendi

Legal Principle Established

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