Zefi v Police

Case [2003] SASC 218

POLICE v ZEFI

[2003] SASC 218

Magistrates Appeal 

Gray J

  1. This is an appeal against sentence.

  2. 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

  3. 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.

  4. 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

  5. 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.

  6. 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…

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AGLC
Zefi v Police [2003] SASC 218
Case
[2003] SASC 218
Decision Date

CaseChat Overview and Summary

Donike Zefi appealed against her conviction and sentence for two counts of larceny. The appellant pleaded guilty to stealing from two stores, K-Mart and Harris Scarfe, on the same day. The sentencing magistrate convicted Ms Zefi but discharged her without penalty. The appeal concerns the appropriateness of the sentence imposed by the magistrate. The central issue before the court was whether the sentence imposed by the magistrate was manifestly inadequate. The court considered the principle of parity, which requires similar cases to be treated similarly unless there are substantial and compelling circumstances to justify a deviation. The court also considered the principles of denunciation and deterrence, which require that the punishment should reflect the seriousness of the offence and deter the offender and others from committing similar offences.

The court found that the sentence imposed by the magistrate was manifestly inadequate. The court noted that the magistrate had failed to consider the principle of parity, as other offenders in similar circumstances had been sentenced to imprisonment. The court also found that the sentence did not adequately reflect the seriousness of the offences or serve the purposes of denunciation and deterrence. The court held that the sentence was so inadequate as to call into question the validity of the conviction. The appeal was allowed, the convictions were set aside, and Ms Zefi was 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.

In summary, the court found that the sentence imposed by the magistrate was manifestly inadequate and did not adequately reflect the seriousness of the offences or serve the purposes of denunciation and deterrence. The appeal was allowed, the convictions were set aside, and Ms Zefi was 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.

Orders

Orders of the court

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Background

Background to the litigation

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

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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