Tennant v Lowe

[1988] TASSC 62

Serial No 61/1988
List “A”

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Tennant v Lowe [1988] TASSC 62; A61/1988

PARTIES:  TENNANT
  v
  LOWE

FILE NO/S:  LCA 125/1988
DELIVERED ON:  6 December 1988
JUDGMENT OF:  Underwood J

Judgment Number:  A61/1988
Number of paragraphs:  18

Serial No 61/1988

List "A"

File No LCA 125/1988

TENNANT v LOWE

REASONS FOR JUDGMENT  UNDERWOOD J

6 December 1988

1. This is a motion to review sentence.

1. On the 10 October 1988, in a court of petty sessions, the applicant pleaded guilty to one count of stealing, two counts of forgery, one count of uttering and three counts of attempted uttering. On these pleas the applicant was convicted and sentenced to seven days' imprisonment on each conviction. The sentences were ordered to be served cumulatively but the execution of all sentences was suspended upon condition that the applicant be of good behaviour for a period of two years. The motion seeks a review of those sentences on the grounds that:

1.Individually and/or collectively they are manifestly excessive in the circumstances of the case.

2.Error occurred in the failure to impose disparate sentences on the applicant and her accomplice.

1. The accomplice, Graeme John Self, was jointly charged with the applicant on all counts. He also pleaded guilty and, like the applicant, was sentenced to seven days' imprisonment on each count to be served cumulatively. The execution of the sentences was conditionally suspended for two years.

1. On the 10 June 1988 the applicant and Self, who were then living together, went to the Savings Bank of Tasmania. After withdrawing some money from an account, Self picked up his papers from the counter and inadvertently included amongst them an ANZ cheque book which had been accidentally left on the counter by another customer, one Mrs Filler. The applicant and Self went to a nearby coffee shop where the presence of the cheque book was discovered. It contained the owner's Medicare card and personal papers. The learned magistrate was told that Self decided to keep the cheque book and that he prevailed upon the applicant to join with him in the events which ensued. Counsel who appeared for both the applicant and Self in the court below told the learned magistrate, without objection, that:

"[Self] wishes it to be made clear that he talked Charmaine Tennant into participating in the offence (sic) and that he considers that she was unlikely to have participated in the offence without him prevailing upon her to do so."

1. The applicant wrote a cheque for $180 and forged the signature of Mrs Filler. She presented the cheque at a city branch of the ANZ bank but payment was refused. Then, she and Self went to another city branch of the same bank where the applicant was successful in cashing the cheque. Self took the whole of the proceeds and used it to pay outstanding debts.

1. The applicant then wrote a cheque for $200 and again forged Mrs Filler's signature. The applicant, in company with Self, twice unsuccessfully attempted to cash the cheque at suburban branches of the ANZ Bank. On the second occasion they were told that the cheque book had been reported stolen. The applicant and Self went to a friend's shop and burnt the stolen cheque book and papers.

1. The facts narrated to the learned magistrate were appropriate to support convictions for four crimes of uttering and not for one crime of uttering and three crimes of attempted uttering to which the applicant pleaded guilty. Although the complaint disclosed that, in four instances, the "Charge" was "Uttering" it is clear from the particulars and, in three cases, a reference to the Code, s299, that the complaint alleged one count of uttering and three counts of attempted uttering. There was some inconclusive discussion between the learned magistrate and the prosecutor about this matter but the end result was that sentence was passed on one charge of uttering and three charges of attempted uttering as well as the other matters of complaint. The notice to review makes no complaint about the convictions and therefore falls to be determined in accordance with its grounds although it is clear that, on the facts as stated by the prosecutor, the crime of uttering was complete in each of the four cases.

1. Since the complaint was made the money obtained from the bank has been repaid. The applicant and Self have written a letter of apology to Mrs Filler.

1. With respect to the applicant, the learned magistrate was told that she was aged 18 but, from her stated birth date, it would appear that she was 18 at the time the offences were committed and turned 19 two months afterwards. When she appeared for sentence she had resumed living at home with her parents. The applicant went to the Ogilvie High School until 15. She left and took up a job as a waitress. She held this job for 3½ years but gave it up for reasons of poor health and associated hospitalisation five months before the commission of the offences. At the time of sentence she was unemployed and in receipt of unemployment benefits. She had no prior convictions.

1. The accomplice was aged 23, single, and at the time of sentence living by himself at Claremont. The learned magistrate was told that, between 1980 when he left school and 1983 when he was involved in a serious motor vehicle accident, Self worked at the Casino as a waiter. It was put to the learned magistrate that Self sustained brain damage in that accident. Counsel tendered a long report dated the 15 February 1983 from Dr Pargiter, a psychiatrist.

1. Between 1982 and 1988 Self amassed a formidable list of convictions most of which were for traffic offences. In 1983 he was convicted of burglary (1), stealing (2) and assault. He was also convicted of possessing cannabis in 1983 and 1986. On the second conviction for stealing he was sentenced to 21 days' imprisonment, the execution of the last 14 days of which was conditionally suspended. At the time he appeared for sentence he was in employment.

1. Counsel explained to the learned magistrate that Dr Pargiter's report shed light on Self's mental condition since the accident and the offences he subsequently committed. In substance, the report indicated that the injuries sustained in the motor vehicle accident had exacerbated a constitutional anti–social personality and caused some mild impairment of intellectual functioning.

1. The circumstances surrounding the commission of the offences and the circumstances of the two offenders required the imposition of different sentences. Whether a failure to discriminate between two disparate offenders is in itself an error is unnecessary to decide. See Lovelock v The Queen (1978) 33 FLR 132; Harris v The Queen, CCA, 6787. In the present case, the imposition of identical sentences inescapably leads to the inference that insufficient weight was given to the differentiating circumstances and accordingly error must have occurred in the exercise of the sentencing discretion. On this basis the sentences must be set aside.

1. In imposing sentence afresh I take into account the following matters:

1   The sentences imposed on the accomplice in respect of which no notice to review has been filed.

2   The commission of the offences was not premeditated in the sense that they arose out of and were committed immediately after the discovery of the accidental taking of the cheque book.

3   The applicant would not have offended had not her accomplice prevailed upon her to do so.

4   The applicant is a youthful offender without prior conviction.

5   The amount of money involved in the commission of the offences was small and full restitution has been made.

6   There is some evidence of remorse.

1. It is now well accepted that in the case of youthful first offenders, generally imprisonment is to be avoided if any other course is reasonably open. See for example, Hill v Katich [1973] WAR 11 at 12; Smith v The Queen [1964] Crim LR 70; Grey v Strickland, Nettlefold J, 4478.

1. In the circumstances of the applicant's case any sentence of imprisonment is inappropriate. In R v O'Keefe [1969] 2 QB 29 Lord Parker CJ, in delivering the judgment of the court, said at 32:

"This Court would like to say as emphatically as can be said that suspended sentences should not be given when, but for the power to give a suspended sentence, a probation order was the proper order to make. After all, a suspended sentence is a sentence of imprisonment. Further, whether the sentence comes into effect or not, it ranks as a conviction, unlike the case where a probation order is made, or a conditional discharge is given."

1. See also Kennedy v Spatt [1972] AC 533 and a judgment of mine, Spaulding v Lowe, 485.

1. The application is allowed, the sentences of imprisonment quashed and in lieu thereof a probation order for a period of two years is made. The order is to contain a provision that the applicant shall, when called upon at any time during the period of the order, appear for sentence.