Zefi v Police

POLICE v ZEFI

[2003] SASC 218
Magistrates Appeal
Gray J

This is an appeal against sentence.
Donike Zefi, the appellant, was charged with two counts of larceny[1]. Ms Zefi pleaded guilty to both charges. The sentencing magistrate imposed convictions but discharged Ms Zefi without further penalty.
[1] The terms of the complaint were as follows:
“1 On the 22nd day of October, 2002 at Noarlunga Centre in the said State stole Clothing and Cosmetics together of the value of $102.03 the property of K-Mart.
Section 131 of the Criminal Law Consolidation Act, 1935.
2On the 22nd day of October, 2002 at Noarlunga Centre in the said State stole Clothing together of the value if $19.95, the property of Harris Scarfe.
Section 131 of the Criminal Law Consolidation Act, 1935.
Background
Ms Zefi is a 32 year old Albanian woman. She arrived in Australia with her two children aged 8 and 10 years in February 1999. She came to Australia to join her husband who had been living in Australia for several years. Ms Zefi became an Australian citizen in April 2002. During 2002 that same year Ms Zefi’s husband returned to Albania. There were matrimonial difficulties. However Ms Zefi believed that she and her husband were working towards a reconciliation. She believed that her husband was planning to soon return to Australia. Her parents and siblings reside in Albania although a number of her husband’s relatives live in Australia.
Ms Zefi at the time of her offending was seven months pregnant. There were apparently concerns for her health and that of her baby the time of the offending. She had a difficult pregnancy. Just prior to her offending she understood that her baby was ‘not growing properly’ and had ‘high sugar levels’. Ms Zefi described feeling depressed. Ms Zefi’s only income was a Supporting Parent Benefit.
Circumstances of the Offending
On 22 October 2002 Ms Zefi was observed by a K-mart security officer placing items from the store in her trousers at the Noarlunga Shopping Centre. Ms Zefi was apprehended. The police were contacted. A subsequent search revealed items from K-mart and Harris Scarfe. Underwear, cosmetics and baby clothing were found.[2]
Magistrate’s Remarks
[2] Two pairs of Bonds baby leggings valued at $9.99 each, two pairs of Kayser ladies briefs valued at $8.99 each, a pair of Bonds ladies briefs valued at $14.99, two bonds baby jumpsuits valued at $5.44, one bottle of Revlon Berry nail polish value $10.62 and one L’Oreal eye shadow valued at $18.59. One male baby dress valued at $19.95 and Bob the Builder swimwear valued at $13.95 were found in Ms Zefi’s possession.
When sentencing the magistrate remarks included:
I appreciate things have been difficult for you but that does not excuse your behaviour in going to two separate shops and stealing property. The fact of the matter is that it is not necessarily the stores which suffer the loss caused by people like you who steal, The stores simply pass on the costs to the more honest members of the community who pay for goods. I do not see why honest members of the community should have to pay extra to make up for the activities of people like you.
You heard me say to your counsel that I think you should be convicted of these offences to reflect the seriousness of them but at the same time, if I impose a fine, not only will that impact upon you but, as is the tragedy of the situation, it will impact upon your children.
It is with a degree of reluctance that I convict you of both of these offences but I discharge you without any further penalty, save for the court fees of $113.20, the Criminal Injuries Levy of $35 on each count and the prosecution costs of $16.
The Issue on Appeal
Counsel for Ms Zefi submitted that the magistrate placed too much emphasis on deterrence and the seriousness of the offence and that good reasons existed to proceed without recording convictions.
Counsel for Ms Zefi contended that the conviction would affect Ms Zefi more harshly than others charged with like offences, because of her limited languages skills and lack of social contacts. Ms Zefi’s social contact was limited to the Albanian community. It was said that the recording of a conviction could have an adverse effect in that community.
Recording a Conviction
Section 16 of the Criminal Law (Sentencing) Act 1988 (SA) provides the court with a discretion to proceed without recording a conviction:
Where a court finds a person guilty of an offence for which it proposes to impose a fine, a sentence of community service, or both and the court is of the opinion—
(a)     that the defendant is unlikely to commit such an offence again; and
(b)     that, having regard to—
(i)the character, antecedents, age or physical or mental condition of the defendant; or
(ii)     the fact that the offence was trifling; or
(iii)    any other extenuating circumstances,
good reason exists for not recording a conviction,
the court may impose the penalty without recording a conviction.
In Sims v Police[3] Bleby J observed:
…the assumption behind s 16 of the Sentencing Act is that, in most cases, a conviction will be recorded. Section 16 is by way of exception to the normal rule. In order to exercise the power conferred by s 16, the court would have to identify what it was that provided good reason for not recording the conviction…
[3] [2000] SASC 102 at [7]
The considerations in section 16 are conditions precedent to the exercise of a discretion to proceed without conviction. Once these conditions are satisfied the question becomes whether the enlivened discretion ought to be exercised.
Section 39 of the Sentencing Act provides:
(1) Where a court finds a person guilty of an offence the court may, if it thinks that good reason exists for doing so, discharge the defendant with or without recording a conviction and without imposing a penalty, upon condition that the defendant enter into a bond—
(a)     to be of good behaviour; and
(ab)   to comply with the other conditions (if any) included in the bond; and
(b)     if the terms of the bond so require, to appear before the court for sentence, or conviction and sentence, if the defendant fails during the term of the bond to comply with a condition of the bond.
(1a) However, if the defendant is not to be so required to appear before the court, the court cannot impose any conditions under subsection (1)(ab).
(2) Where a defendant is discharged under this section—
(a)     no fresh prosecution may be commenced in respect of the offence; and
(b)     the defendant will only be liable to sentence, or conviction and sentence, if he or she fails to comply with a condition of the bond and the terms of the bond require the defendant to appear before the court for sentencing in that event.
Counsel for the Crown submitted that the option of proceeding without conviction is only open to a magistrate if the theft is trifling. It was submitted that counsel for Ms Zefi did not make a submission to this effect to the magistrate.
There was said to be an important public interest in convictions being recorded for offences of larceny. Further it was said that because Ms Zefi intended to work as a nurse she would come into contact with vulnerable members of the community and her work would involve handling the property of others. It was said that the public interest called for convictions to be recorded in this case.
In R v Briese[4] the Queensland Court of Criminal Appeal observed:
…the effect of [a conviction] is capable of considerable effect in the community. Persons who may have an interest in knowing the truth in such matters include potential employers, insurers, and various government departments including the Immigration Department…For present purposes it is enough to note that the making of an order [to proceed without conviction] has considerable ramifications of a public nature, and courts need to be aware of this potential effect...
On the other hand the beneficial nature of such an order to the offender needs to be kept in view. It is reasonable to think that this power has been given to the courts because it has been realised that social prejudice against conviction of a criminal offence may in some circumstances be so grave that the offender will be continually punished in the future well after appropriate punishment has been received. This potential oppression may stand in the way of rehabilitation…
...
The express mention…of the nature of the offence as a factor to which the court must have regard in the exercise of the discretion whether or not to record a conviction suggests that there are certain types of offences which will call for the recoding of a conviction…A court will be more easily persuaded against the recording of a conviction where there are no prior convictions or a very minor history and where the offence in question is a so called ‘victimless’ crime.
[4] (1996-1997) 92 A Crim R 75 at 79-81
The Tasmanian Court of Criminal Appeal has also considered the public interest in the ordering of a conviction. In Attorney-General v Smith[5], after references to Briese the court observed:
By not even recording a conviction, the learned judge had given no expression to the community’s disapproval of the admittedly criminal conduct, and had given no expression to the need for general deterrence ... [It was] submitted that the community had an interest and expectation that such a crime would at least be condemned by a recorded conviction.
In R v Brown, ex parte Attorney-General [1994] Qd R 182 at 194, it was noted that the recording of a conviction is in itself an element of punishment of the offender and may encourage him or her not to engage in further criminal activity and conceivably it could act some deterrence to others if it becomes known.
When considering whether to record a conviction, a court must weigh up the public interest, and the need for an official record to be made of the commission of the offence against the beneficial nature to the offender of a conviction not being recorded.
[5] [2002] TASSC 10 at [18] -[26]
In deciding whether to impose a conviction, this court should weigh the potential benefit to Ms Zefi in proceeding without convictions with the public interest inherent in convictions being recorded.
In Betts v Police[6] the court observed:
The changing view of the community towards minor shoplifting is demonstrated by the recent enactment of legislation. The Shop Theft Alternative Enforcement Act 2000 (SA) was assented to on 7 December 2000. It has not yet come into operation. However the preamble provides that it is:
An Act to provide for certain persons accused of minor shop theft to be subject to a non curial enforcement process with their consent as an alternative to prosecution; and for other purposes.
This legislation provides an alternative system for dealing with minor shop stealing with the consent of the victim, the police and the accused. It is a diversionary process based on the successful model utilised for minor juvenile offending under the Young Offenders Act 1993 (SA). The procedure is dependent upon the retail value of the items stolen. When they are valued at less than $30.00, it is expected that offenders can admit the offence, apologise to the victim in the presence of the police officer; return the goods or make payment in lieu of damaged goods, and undertake to submit to a formal police caution. Such cases can be dealt with ‘on the spot’. Alternatively an offender can be given 48 hours in which to consider their position and then attend personally at a police station to follow the above procedure. For items valued at over $30.00 but under $150.00 the scheme is slightly different, however it is based on the same premise.
[6] (2001) 80 SASR 163 at [19-20]
The Shop Theft (Alternative Enforcement) Act 2000 (SA) came into operation on 11 November 2001. Section 4 relevantly provides:
(1) If a police officer is satisfied that—
(a)     an allegation of larceny made against a person constitutes an allegation of minor shop theft; and
(b)     the alleged offender—
(i)    is aged 18 years or over; and
(ii)     is not an employee of the victim; and
(c)     the victim consents to the alleged offender's being dealt with under this Act; and
(d)     there is no reason to suspect that the alleged larceny is part of a pattern of behaviour on the part of the alleged offender or an organised scheme involving the alleged offender; and
(e)     there is sufficient evidence on which a court could reasonably find the alleged offender guilty of the alleged larceny,
the police officer may, instead of charging the alleged offender with larceny, issue a shop theft infringement notice to the alleged offender.
(2) If a victim consents to an alleged offender being dealt with under this Act, that consent cannot be withdrawn.
(3) A shop theft infringement notice issued to an alleged offender must—
(a)     if the goods the subject of the allegation are valued at or below the prescribed amount—be in the form set out in Schedule 1; or
(b)     if the goods the subject of the allegation are valued at more than the prescribed amount—be in the form set out in Schedule 2.
(4) When a police officer issues a shop theft infringement notice to an alleged offender, the police officer must read to the alleged offender the information contained in Part B of the notice.
The value of the items taken in the second count was less than $30.00. Accordingly the matter could have been dealt with by an admission, an apology, return of the items and a formal police caution. The value of the items in the first count was $102.30. This did not preclude a similar course being taken. Even viewing the appellant’s conduct as one course of conduct the total value of the items taken was less than $150.00. Had Ms Zefi been dealt with under the Shop Theft Act she would not have been convicted on either count. However in this case the shop retailers did not agree to follow the diversionary process.
It is difficult to understand why the new provisions were not taken advantage of in this case. They provide an appropriate and humane way of dealing with first offenders such as Ms Zefi. As earlier observed these provisions demonstrate the changing view of the community to minor shoplifting.
Further Evidence
With the consent of both counsel pre-sentence and psychological reports were prepared. Ms Zefi had a limited grasp of English. She was assisted by her cousin throughout the interviews. She did not wish to speak in the presence of an Albanian interpreter as she feared that the Albanian community would be made aware of the circumstances of her offending. The reports confirmed that the information given to the magistrate about Ms Zefi’s personal history and her employment plans was correct. Further information was sought regarding the health problems.
When discussing the charges Ms Zefi indicated that she had not planned to commit the offences. She appeared embarrassed. She described her actions as impulsive. She said that she was now “100% better” and that she had only taken the items as she suffered a “significant level of distress, physical health problems and situational anxiety”. Ms Zefi said that she did not need any further assistance or practical help.
Even if considered a course of conduct Ms Zefi engaged in isolated incidents of shoplifting. The value of the items stolen was modest. If the retailers had agreed the diversionary processes provided by the Shop Theft Alternative Enforcement Act could have been followed. They did not do agree and this course was not followed.
The information placed before this court confirmed that Ms Zefi was qualified as a nurse in Albania. Enquiries made of the Nurses Registration Board of South Australia indicate that her training would not be recognised without further practical and theoretical study. As earlier observed it was argued that convictions for larceny were likely to prevent restrict her employment prospects in the chosen field. However there is a countervailing public interest in the public being aware that offender’s antecedents in certain circumstances.
The magistrate failed to place sufficient weight on Ms Zefi’s personal antecedents and her difficult position. Ms Zefi was a first offender. At the time of the offending she was a recent migrant to this country from Albania. She had two young children and was seven months pregnant. She was anxious about the health of her unborn child. Her husband had left her and returned to Albania. Her social contacts in Australia appeared to be limited to members of the Albanian community. She was financially insecure. She was intending to pursue a nursing career using her previously obtained qualifications.
This is a sad case. It does not appear that the magistrate was told about Ms Zefi’s nursing qualifications and employment intentions. The magistrate did not have the advantage of the information contained in the medical psychological and pre-sentence reports. These matters, particularly the further evidence indicate that Ms Zefi should be released without convictions.
Notwithstanding Ms Zefi’s insistence that she does not need support or assistance, it is appropriate that she enter into a bond to be of good behaviour for a period of two years and that she have the benefit of supervision from a Correctional Services officer. If Ms Zefi encounters problems there will be a qualified person to whom she can turn. A supervised bond will ensure that Ms Zefi’s rehabilitation can be advanced.
This appeal is allowed. The convictions recorded by the magistrate are set aside. Ms Zefi is to be released on a bond to be of good behaviour for two years and to be under the supervision of a Correctional Services officer. Should Ms Zefi breach the terms of her bond then she is liable to come before a court and be re-sentenced.
JUDGMENT CITATIONS LISTED IN ORDER OF APPEARANCE IN JUDGMENT

1 The terms of the complaint were as follows:
“1 On the 22nd day of October, 2002 at Noarlunga Centre in the said State stole Clothing and Cosmetics together of the value of $102.03 the property of K-Mart.
Section 131 of the Criminal Law Consolidation Act, 1935.
2On the 22nd day of October, 2002 at Noarlunga Centre in the said State stole Clothing together of the value if $19.95, the property of Harris Scarfe.
Section 131 of the Criminal Law Consolidation Act, 1935.

2Two pairs of Bonds baby leggings valued at $9.99 each, two pairs of Kayser ladies briefs valued at $8.99 each, a pair of Bonds ladies briefs valued at $14.99, two bonds baby jumpsuits valued at $5.44, one bottle of Revlon Berry nail polish value $10.62 and one L’Oreal eye shadow valued at $18.59. One male baby dress valued at $19.95 and Bob the Builder swimwear valued at $13.95 were found in Ms Zefi’s possession.

3 [2000] SASC 102 at [7]
4 (1996-1997) 92 A Crim R 75 at 79-81
5 [2002] TASSC 10 at [18] -[26]
6 (2001) 80 SASR 163 at [19-20]

[2003] SASC 218

29 July 2003