Wolfenden v Brigden
[2013] WASC 461
•11 DECEMBER 2013
WOLFENDEN -v- BRIGDEN [2013] WASC 461
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 461 | |
| Case No: | SJA:1105/2013 | 11 DECEMBER 2013 | |
| Coram: | ALLANSON J | 11/12/13 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Pre-sentence order set aside Matter remitted to Magistrates Court for sentencing | ||
| B | |||
| PDF Version |
| Parties: | TENIELLE AMY WOLFENDEN LAUREN KAYE BRIGDEN |
Catchwords: | Criminal law Appeal against decision to impose a pre-sentence order Stealing as a servant Whether imprisonment open for the offence Whether offence warranted a term of imprisonment Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA), s 6, s 7 Criminal Code (WA), s 5, s 378, s 426 Criminal Procedure Act 2004 (WA), sch 1, div 5, cl 6(5) Sentencing Act 1995 (WA), s 6, s 33A, pt 3A |
Case References: | Director of Public Prosecutions for Western Australia v Peters [2010] WASC 139 Dukes v Barrett [2001] WASCA 338; (2001) 125 A Crim R 136 Matthews v Greene [2011] WASC 258 Mustac v The Medical Board of Western Australia [2007] WASCA 128 Russell v The State of Western Australia [2011] WASCA 246 Wiltshire v Mafi [2010] WASCA 111 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
LAUREN KAYE BRIGDEN
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE T R WATT
File No : NO 1899-1920 of 2012
Catchwords:
Criminal law - Appeal against decision to impose a pre-sentence order - Stealing as a servant - Whether imprisonment open for the offence - Whether offence warranted a term of imprisonment - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 6, s 7
Criminal Code (WA), s 5, s 378, s 426
Criminal Procedure Act 2004 (WA), sch 1, div 5, cl 6(5)
Sentencing Act 1995 (WA), s 6, s 33A, pt 3A
Result:
Appeal allowed
Pre-sentence order set aside
Matter remitted to Magistrates Court for sentencing
Category: B
Representation:
Counsel:
Appellant : Ms K E Turtley-Chappel
Respondent : Mr L M Fox
Solicitors:
Appellant : Legal Aid (WA)
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Director of Public Prosecutions for Western Australia v Peters [2010] WASC 139
Dukes v Barrett [2001] WASCA 338; (2001) 125 A Crim R 136
Matthews v Greene [2011] WASC 258
Mustac v The Medical Board of Western Australia [2007] WASCA 128
Russell v The State of Western Australia [2011] WASCA 246
Wiltshire v Mafi [2010] WASCA 111
- ALLANSON J: (This judgment was delivered orally and has been edited from the transcript).
1 On 24 September 2012, the appellant was working at the checkout in a supermarket in Northam. A customer left his credit card at her checkout point, and she stole it. Over the next three days, she used the credit card to purchase groceries and other goods. The total value of the goods was $2087.38.
2 On 22 April 2013, the appellant pleaded guilty to one charge of stealing as a servant, and 21 charges of gaining a benefit by fraud. On 8 August 2013, after having the opportunity to consider pre-sentence reports, the magistrate imposed a 12 month pre-sentence order, known as a PSO, under pt 3A of the Sentencing Act 1995 (WA). In doing so, the magistrate said the offence of stealing as a servant warranted imprisonment for 7 months, and the fraud offences also each called for sentences of imprisonment.
3 The appellant appeals from that decision on the ground that the magistrate erred in law in determining that a PSO should be imposed. There are three particulars to the single ground of appeal:
(1) the determination to impose the order was based in part on an error of law, namely that imprisonment was open for the offence of stealing as a servant;
(2) the value of the property stolen did not exceed $1,000, and consequently imprisonment was not open for that offence; and
(3) the seriousness of the offences did not warrant the imposition of a term of imprisonment.
4 As a preliminary point, because it was raised in the respondent's submissions, I am satisfied that the appeal is competent. Section 7 of the Criminal Appeals Act 2004 (WA) provides an appeal, with leave, to a person aggrieved by a decision of a court of summary jurisdiction. Decision is defined in s 6, and includes an order made as a result of a conviction or acquittal. A PSO is an order of that kind.
5 In submissions filed before the hearing, the respondent conceded that the appeal should be allowed on particular (3), because it was not open to the magistrate to conclude that the only appropriate disposition in the circumstances was a term of imprisonment. The respondent does not concede that imprisonment is not open for the offence of stealing as a servant where the value of the property stolen does not exceed $1,000.
The making of a PSO
6 There are preconditions for the making of PSO. They include that the offender is being sentenced for one or more imprisonable offences, and the court has received a pre-sentence report.
7 The offence of stealing is an imprisonable offence: it is an offence the statutory penalty for which is, or includes, imprisonment: Sentencing Act s 33A(1); Criminal Code (WA) s 378. A charge of stealing may be dealt with summarily in prescribed circumstances. Even where an offence is committed in circumstances where a summary conviction penalty is prescribed, the court may determine under s 5(3) of the Criminal Code that it be dealt with on indictment. And even when tried summarily, the summary conviction penalty is a jurisdictional limit, and not the maximum penalty for the offence: Wiltshire v Mafi [2010] WASCA 111. So the fact that the summary penalty may, in some cases, not include imprisonment, does not mean that the offence is not an imprisonable offence.
8 The fact that stealing is an imprisonable offence is a necessary condition for the court to make a PSO, but there are other criteria. The court may make a PSO under s 33A in respect of an offender if it considers:
(a) that the seriousness of the imprisonable offence or offences warrants the imposition of a term of imprisonment under Part 13;
(b) that a PSO would allow the offender to address his or her criminal behaviour and any factors which contributed to the behaviour; and
(c) that if the offender were to comply with a PSO the court might not impose a term of imprisonment under Part 13 for the offence or offences.
9 Although the offences committed by the appellant, including the offence of stealing, are imprisonable, they do not warrant a term of imprisonment. A term of imprisonment may not be imposed unless the court decides that the seriousness of the offences is such that only imprisonment can be justified, or the protection of the community requires it: Sentencing Act s 6. While the appellant's offending was undoubtedly serious, it is not so serious as to warrant a term of imprisonment, particularly when proper weight is given to matters personal to the appellant, including her youth.
10 The fact that the appellant may not respond appropriately during the course of the PSO would not, in my opinion, make an offence warrant a term of imprisonment, when it would not otherwise do so.
11 The offence of stealing as a servant by the appellant was opportunistic. The fraud offences were committed over a three day period, using that opportunity. There were many of them, but the value of the benefit obtained on each occasion is comparatively low. I noticed, for example, an offence where the benefit was 49 cents. The total is also comparatively low.
12 The appellant was aged only 22 at the time of the offences. She had some convictions for offences relating to driving while not entitled, and some other traffic offences, but nothing of this kind. She has never been imprisoned, so far as I could tell. She has previously been subject to a community-based order as a juvenile, which she successfully completed.
13 In these circumstances, I entirely agree with the concession that imprisonment was not warranted.
14 The appellant needs leave to appeal, and leave is granted, and the appeal is allowed. The PSO is set aside, and the charges against the appellant will be remitted to the Magistrates Court for sentence.
Further matters
15 The respondent's concession does not resolve all issues that are in controversy between the parties. In making the PSO, the magistrate stated that the offence of stealing as a servant warranted a sentence of 7 months' imprisonment. The appellant says there was an error of law by the magistrate because the offence of stealing as a servant, where the value of the property is less than $1,000, is not an offence for which the magistrate could impose imprisonment.
16 The argument can be explained in these steps, the sections are all sections of the Criminal Code:
1. By s 426(1)(b), s 426(2) applies to an offence under s 378(7), that is, the offence of stealing as a servant.
2. By s 426(2), for an offence to which the subsection applies, where the value of the property in question does not exceed $10,000, the summary conviction penalty is imprisonment for 2 years and a fine of $24,000, unless s (4) applies.
3. By s (4), the summary conviction penalty for an offence under s 378, where the value of the property in question does not exceed $1,000, is a fine of $6,000. That is, the summary conviction penalty for such an offence does not include imprisonment.
17 In the circumstances of this case, there are some particular complications. First, what is the consequence of the failure of the charge to specify the value of the property stolen? In written submissions, the respondent submitted that some assistance may be had from the decision of Edelman J in Matthews v Greene [2011] WASC 258, a case in which the respondent says is on a different but not dissimilar point. I do not believe that the decision in Matthews v Greene assists. Edelman J was there dealing with whether, as a matter of construction of the language of s 6 and s 9 of the Misuse of Drugs Act 1981 (WA), a charge which does not allege a quantity of a prohibited drug is a charge 'in respect of a quantity of a prohibited drug … that is less than the quantity specified' in the relevant schedule to the Act. The text of s 426 of the Code is not comparable to the sections considered in Matthews v Greene.
18 Because the value of the goods stolen is relevant for the purpose of deciding whether the charge may be dealt with summarily, and is relevant to the statutory penalty, it is necessary for the prosecution notice to allege that value. That requirement is prescribed in the Criminal Procedure Act 2004 (WA) sch 1, div 2, cl 6(5). The failure to specify the value of the credit card is a defect in the court document. It does not invalidate the prosecution notice: see Russell v The State of Western Australia [2011] WASCA 246 [28]. But it can and it should be rectified before the appellant is dealt with again.
19 I am not aware of any authority where consideration has been given to what is the appropriate value to specify for a credit card, and counsel could refer to none. The analogy with a cheque, though, is sound. The value, for the purposes of s 426, is the value of the item, and not the value of what can be obtained by its fraudulent use. This does not impose any unnecessary limitation on dealing with serious offences, because a matter can be dealt with on indictment if the offence is too serious, notwithstanding the nominal value of the property: Code s 5(3). And on each occasion of fraudulent use, a separate offence is committed.
20 In this case, the prosecution should present a notice that complies with the Criminal Procedure Act, and specifies the value of the card, or at least specifies that it is less than $10,000 or $1,000. In the absence of full argument, I am not prepared to decide what value should be given, although my preliminary view is that it is a nominal value.
21 The second question arises if the card is of a value of less than $1,000. The respondent does not accept the appellant's argument that the magistrate is then required to impose only those penalties set out in s 426(4) of the Code, that is, that only a fine of up to $6,000 or other, lesser, alternatives can be imposed. This issue of the proper construction of s 426 is the subject of authority. In Dukes v Barrett [2001] WASCA 338; (2001) 125 A Crim R 136 Hasluck J held that s 426(4) applied only to the 'general offence of stealing' under s 378. His reference to the general offence of stealing, in my opinion, is a reference to the way in which s 378 is structured, whereby there is an offence of stealing, and then after that there are nine numbered paragraphs, which set out punishment in particular cases. Hasluck J held that s 426(4) applied only to the general offence of stealing, and did not apply where the offence was stealing as a servant. His decision was applied in Director of Public Prosecutions for Western Australia v Peters [2010] WASC 139 (Heenan J).
22 The practical effect of the decision in Dukes v Barrett is that while s 426(2) may apply to the offence of stealing as a servant committed by the appellant, so that it may be dealt with in a summary court, s (4) does not. The appellant is liable on summary conviction to imprisonment for 2 years or a fine of $24,000 even if the property is valued less than $1,000.
23 For reasons of judicial comity, I should follow the decision of another judge of this court at first instance unless I am convinced that the judgment was wrong: see Mustac v The Medical Board of Western Australia [2007] WASCA 128 [38] and the cases there cited.
24 The appellant urges me to consider whether Dukes v Barrett was wrongly decided and to not follow it. In my opinion, the case was correctly decided, and I should follow it. Were it otherwise, as I pointed out in the course of argument, there would be an irreconcilable inconsistency between s 378(1), which deals with the stealing of a testamentary instrument, a document which almost invariably would be of nominal value, and where the prescribed offence is 10 years' imprisonment, and s 426(4), where such an offence would be liable to a fine only. I do not accept the construction which has been put forward on behalf of the appellant.
Conclusion
25 I accept that imprisonment should not be imposed for the offences committed by this appellant. No sentence has yet been imposed on her because a presentence order was made, so the charges against her must be remitted to the Magistrates Court for sentence.
26 There is a range of penalties available to the magistrate, and I would not attempt on the material available to me to limit the sentencing discretion any further than I have already indicated. So the orders I would make are that leave is granted, the appeal is allowed, the pre-sentence order is set aside and the offences, that is, all of them, must be remitted to the Magistrates Court for sentence.
3
5
4