TITLE OF COURT: SUPREME COURT OF TASMANIA JURISDICTION: APPELLATE FILE NO/S: LCA 35/1998 DELIVERED: 10 December 1998 HEARING DATE/S: 26 November 1998 JUDGMENT OF: Crawford J
CATCHWORDS:
Criminal Law - Particular offences - Property offences - Larceny or stealing - Larceny by clerk or servant - Accounts clerk stole from employee $128,641.13 on 85 occasions over 39 months - Whether 22 months' imprisonment of which 16 months were suspended was manifestly inadequate.
Aust Dig Criminal Law [214]
Magistrates - Appeals from and control over magistrates - Tasmania - Motion to review - The hearing - Generally - Review of sentence - Principles applicable - Whether partly suspended sentence of imprisonment was erroneous as manifestly inadequate.
Aust Dig Magistrates [272]
REPRESENTATION:
Counsel: Appellant: M J Brett Respondent: L O Rheinberger Solicitors: Appellant: Director of Public Prosecutions Respondent: Stephenson & Murray
Judgment category classification: Court Computer Code: Judgment ID Number: 151/1998 Number of pages: 4
Serial No 151/1998
File No LCA 35/1998
CLAAS VISSER v JEANETTE MARJORIE SMART
REASONS FOR JUDGMENT CRAWFORD J
10 December 1998
In a court of petty sessions on 1 September 1998 the respondent was sentenced to twenty-two months' imprisonment, sixteen months of which were suspended on condition that she commit no further offences of dishonesty for a period of three years. The applicant has moved to review the sentence, maintaining in essence that it was manifestly inadequate. It was not submitted that the head sentence of twenty-two months' imprisonment was manifestly inadequate, but that with all but six months of the sentence being suspended, it became so.
The respondent was sentenced on two complaints, having pleaded guilty to a total of eighty-five counts of stealing from her employer, Trans United, which operated as a freighting service. The offences were committed regularly, on average about once a fortnight, although not every fortnight, between 7 September 1994 and 4 December 1997, a period of approximately thirty-nine months, and involved thefts to a total amount of $128,641.13. The amounts stolen on each occasion varied between the smallest at $154.70 and the largest at $4,500. Forty-eight of the thefts were for sums in excess of $1,000.
She was employed by Trans United for twelve years and was an accounts clerk and secretary. In October 1997 discrepancies were observed in the business ledger of Trans United and forensic accountants were engaged to investigate the accounts for a particular period. As a result there were detected fifty-five thefts by the respondent between 5 July 1996 and 4 December 1997, involving a total of $72,590.04. A report was made to police, who interviewed her on 8 May 1998. She cooperated and admitted her guilt, volunteering information concerning a further thirty thefts committed by her between 7 September 1994 and 25 June 1996, involving a total of $56,051.09.
She was authorised by her employer to draw and be a signatory on cheques for purposes of the company's business. To obtain the money she had drawn, signed and…
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.
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AGLC
Visser v Smart [1998] TASSC 151
Case
[1998] TASSC 151
Decision Date
CaseChat Overview and Summary
In this case, Claas Visser, the appellant, sought to review the sentence imposed on Jeanette Marjorie Smart, the respondent, who had been convicted of multiple counts of stealing from her employer, Trans United. The crimes occurred over a period of approximately 39 months and involved the theft of a total of $128,641.13. The respondent was sentenced to 22 months in prison, with 16 months of that sentence suspended, subject to the condition that she commit no further offences of dishonesty for three years. The appellant argued that the sentence was manifestly inadequate, particularly due to the substantial portion of the sentence that was suspended.
The primary legal issue before the court was whether the sentence imposed by the magistrate was manifestly inadequate. The court had to determine if the sentence was erroneous to the extent that it required correction by the appellate court. The court also considered the principles applicable to sentencing, particularly in cases involving theft by an employee in a position of trust.
The court held that while the head sentence of 22 months was within the appropriate range, the suspension of 16 months rendered the sentence inadequate. The court noted that the respondent's actions were particularly egregious, involving repeated and systematic theft over an extended period. The court found that the sentence did not adequately serve the purposes of general deterrence and denunciation, which are crucial in cases of breach of trust by an employee. The court concluded that the sentence was plainly inadequate and allowed the motion to review. The court ordered that the respondent be sentenced to imprisonment for 22 months, effective from the date of the original sentence.