Visser v Smart

[1998] TASSC 151

151/1998

PARTIES:  VISSER, Claas
  v
  SMART, Jeanette Marjorie

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 cashed cheques and converted the cash to her own use.  The method used by her varied, but she said that on most occasions she had identified over-payments within the company's accounts, which had something to do with other companies within the same group of companies.  She would identify an amount which she decided to steal, draw a cheque for it, sign it, present it with an invoice to another employee who also had authority to sign cheques and obtain that employee's signature.  She personally did the banking and would present the cheque at the Commonwealth Bank and cash it, retaining the cash for her own benefit.  At the time of sentencing the employer had recovered nothing.  Her counsel said that there was no way that she could repay it. 

The respondent's counsel told the learned magistrate that she was fifty years old, married for twenty-eight years and had three adult children.  On leaving school at the age of sixteen years, she worked at the Commercial Bank for four years, met her husband and moved from Launceston to Hobart where she worked for an accounting firm for about three years.  In 1973 she returned to Launceston and gave birth to her three children over the next four years.  In 1980 she returned to the work force with Trans United.  Therefore, she had been fully employed for most of her adult life.  Her annual income from her employment with Trans United was $32,500.

The cause of the respondent's dishonesty was an addiction to gambling.  In late 1991 she commenced going to the Casino on Monday nights, when her husband was away from home, and gradually her gambling got out of control.  One night she lost about $400 and next day stole money from her employer for the first time, when the opportunity presented itself. 

Her counsel said that since detection she had attended Gambling and Betting Addiction (GABA) and had herself banned from the Casino.  He said that she was deeply ashamed of her actions and had lost her job, which had involved a position of trust.  Counsel said "her life is totally and utterly ruined, her marriage has just stayed together".  Her husband had not known about her visits to the Casino.  Counsel said that she had let her children down and was "totally and utterly ashamed of herself".  In 1984 the respondent had a stealing charge against her dismissed under the Probation of Offenders Act 1973.  The learned magistrate was told little about it.  It had nothing to do with her employment. 

The comments of the learned magistrate on passing sentence were as follows:

"The defendant has pleaded guilty to eighty five charges of stealing which arose from a position with her employer, Trans United, as an accounts clerk which goes without saying involved her in a position of some trust.  And initially the thefts were discovered by audit.  There were aspects of the receipts of money by the firm which were not disclosed by the audit but subsequently admitted to by the defendant.  Her position gave her a very sophisticated and it seems unique understanding of the accounts receivables of a firm, she had an opportunity to redirect sums of money to her own purposes.  In the end a sum of approximately $128,000 was taken over a twenty three month period.  It goes without saying that these offences are serious.

I take into account what your counsel has put on your behalf, your personal circumstances and the circumstances in which these offences took place.  Essentially you are a person of good character apart from a minor indiscretion in 1984 which was apparently due to depression.  It's evident from what I have been told that the circumstances of your life led you into a prolific gambling habit that developed it says incremently.  It commenced shortly after the death of your father.  It's also evident that as a result of this habit you were unable to escape from it to the extent that even losing your retrenchment money.  That gambling, as I understand, was at the casino.  You have taken positive steps I understand at this stage to control your life, having banned yourself from the casino as your counsel puts to me and I have no doubt at all that you've never looked back.  Regrettably, however, in addition to the substantial loss to your employer you have also suffered, as I understand it, financially and socially from this wrongdoing. 

In all the circumstances I need to impose a penalty that reflects the seriousness of this offence, in which case a general deterrence must figure significantly.  A term of imprisonment is called for.

You will be sentenced to 22 months' imprisonment, but 16 months of that term will be suspended on condition that you commit no further offences of dishonesty for a period of 3 years."

The reference to retrenchment money was to $12,000 paid to the respondent when she was retrenched from her employment.  She promptly lost it betting at the Casino.  The information provided to the learned magistrate about that did not make it clear when it occurred, whether prior to her detection or after. 

At the time of the hearing of the motion to review, the respondent was in prison serving the sentence.  I was told by counsel that she is due for release on 24 December next. 

Counsel for the applicant accepted that the head sentence of twenty-two months' imprisonment was not manifestly inadequate, although he submitted that it was at the lower end of the unassailable range.  He submitted that by "proceeding to impose a comparatively short sentence and suspending the greater part of it" the learned magistrate "denuded it of any generally deterrent effect".  See R v Meers 32/1998 per Wright J at 2.  Counsel pointed out that no reasons were given for suspending part of the imprisonment.  He submitted that this is a very serious example of theft by an employee in a position of trust, demanding a sentence of substantial general deterrence, having particular regard to the circumstances that a large sum of money was stolen and is unlikely to be repaid, and it was taken in a systematic and deceptive manner over a long period of time. 

For the respondent it was argued first that the Sentencing Act 1997, s25(1), has the effect of converting a partly suspended term of imprisonment into a wholly unsuspended term of imprisonment, and that I am obliged to regard the sentence imposed in this case in that light. The subsection provides that "a partly suspended sentence of imprisonment is taken for all purposes to be a sentence of imprisonment for the whole term stated by the court". All that means in this case is that the partly suspended sentence of imprisonment is to be taken, for the purposes of the law generally, to be a sentence of imprisonment for twenty-two months and not one for merely six months, but that does not derogate from the fact that service of sixteen months of it has been suspended on conditions. If the subsection has the meaning advocated by the respondent's counsel, she would be required to serve the whole of the twenty-two months' sentence, regardless of whether she breached the condition of suspension! A consideration of subs(2), which declares what a wholly suspended sentence of imprisonment is to be taken to be, makes it clear that the section has no application to the circumstances of the motion.

The respondent's counsel did not take issue with the proposition that the head sentence of twenty-two months was relatively low for a case such as this, but submitted that nevertheless it was within the appropriate range and that the order suspending service of sixteen months of it was a proper exercise of the sentencing discretion.  He submitted that the prime purpose of suspension of the execution of a sentence is that the offender should thereby be moved towards reform, and it is legitimate for a sentencer to treat contrition and the prospect of non-repetition as factors relevant to the suspension of a sentence in whole or in part.  R v Meers 32/1998 per Cox CJ at 3.  It was further submitted that although a suspended sentence, in whole or in part, does not have the same deterrent effect as one which is not suspended, it is nonetheless a sentence of imprisonment which, but for the special circumstances of the offender, would result in custody for the entire period of the head sentence and may, in the event of a breach of the condition upon which the execution is suspended, have that result.  R v Dowie [1989] Tas R 167 at 181; O'Keefe v R (1969) 53 Cr App R 91 at 94; R v Percy [1975] Tas SR 62 at 73. In terms used by Underwood J in Dowie, counsel for the respondent submitted "that there were ample reasons for conditionally suspending the execution of" part of "this sentence having regard to the respondent's antecedents and future prospects" as well as to her remorse and contrition, and the learned magistrate was entitled to find that rehabilitation carried more weight than personal and general deterrence.

An appellate court must not interfere with the exercise of the sentencing discretion except in a clear case of error.  A magistrate is vested with a very wide discretion.  Whittle v McIntyre [1967] Tas SR 263 (NC6). It is not sufficient to set aside a sentencing order just because a more severe sentence would have been imposed by the appellate court. In the circumstances of this case, the motion must fail unless the Court is satisfied that the sentence was manifestly wrong in its inadequacy, as to amount to a clear error in the sentencing process. Such principles have been stated by courts of this State on a great many occasions and come from the High Court in cases such as House v R (1936) 55 CLR 499, Cranssen v R (1936) 55 CLR 509 and Harris v R (1954) 90 CLR 652. Notwithstanding the wide sentencing discretion in the court below, it is the duty of the appellate court to interfere where it is necessary to do so to avoid such manifest inadequacy in sentence or inconsistency in sentencing standards that the error is of such gravity that it is essential in the administration of justice that the error be corrected. It is not necessary to identify any particular error of law made. The error can be implicit in the excessive leniency in the sentence imposed.

Thefts and other frauds by employees in positions of trust ought to attract relatively severe punishment in most cases, although that is not to deny that courts may be merciful in particular cases.  This was a particularly bad example of stealing by such an employee, committed regularly and systematically a great number of times, eighty-five in all, over a period exceeding three years.  The total amount stolen was considerable, $128,641.13, and there is no prospect that significant repayment will be made.  Of course the respondent was of good character and reputation, but if that was not the position she would not have held her employment and earned what she did.  Although regard must be paid to her antecedents, they have less weight therefore in a case such as this.  General deterrence is a most important consideration in a case of breach of trust by an employee.  Major thefts such as occurred in this case especially require denunciation by substantial punishment.  Allowing for the respondent's admissions and pleas of guilty and the expressions of remorse and contrition through her counsel, a sentence of at least two to two and a half years' imprisonment, should be expected for a case such as this.  It is my opinion that having regard to what was suspended the applicant's sentence was plainly so inadequate as to be erroneous. 

Considerations which commonly apply to a youthful offender and which dictate the suspension of all or part of a sentence of imprisonment, do not apply here.  There is little prospect that the respondent is likely to reoffend or that she needs particular encouragement to reform.  Of course imprisonment may be suspended for reasons other than rehabilitation and reform, such as when there is seen to be a special need for mercy in a particular case, but such a need was not identified by the learned magistrate and I would not find it. 

The motion to review will be allowed and it will be ordered that the sentence is set aside.  In the light of the concession by Crown counsel that the head sentence was within the appropriate range, and having regard to the commonly applied principle in cases of appeals by the prosecution, that the sentence the appellate court imposes may appropriately be less than the sentence it would have been appropriate to pass at first instance (Khan (1966) 86 A Crim R 552 at 559, R v Clarke [1992] 2 VR 520 at 522, R v Harland-White 23/1997 per Crawford and Slicer JJ at 5), I will refrain from imposing a sentence of imprisonment which is longer than the head sentence imposed by the learned magistrate in this case.  It is ordered that the respondent is sentenced on both complaints to imprisonment for twenty-two months commencing on 1 September 1998.