Nielsen v Brennan [2006] NTSC 78

PARTIES:	NIELSEN, Christopher

	v

	BRENNAN, Michael David

TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:	SUPREME COURT OF THE TERRITORY EXERCISING APPELLATE JURISDICTION

FILE NO:	JA 20 of 2006 (20602318)

DELIVERED:	10 October 2006

HEARING DATE:	10 October 2006

EX TEMPORE JUDGMENT OF:	RILEY J

APPEAL FROM:	Court of Summary Jurisdiction sentence, 10 April 2006, Mr V. Luppino SM

REPRESENTATION:

Counsel:
	Appellant:	T Opie
	Respondent:	J Down

Solicitors:
	Appellant:	Northern Territory Legal Aid Commission
	Respondent:	Office of the Director of Public Prosecutions

Judgment category classification:	C
Judgment ID Number:	ril0613
Number of pages:	6

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Nielsen v Brennan [2006] NTSC 78
No JA 20 of 2006 (20602318)

	IN THE MATTER OF the Justices Act

	AND IN THE MATTER OF an appeal against sentence handed down in the Court of Summary Jurisdiction at Darwin

	BETWEEN:

	NIELSEN, Christopher
	Appellant

	AND:

	BRENNAN, Michael David
	Respondent

CORAM:	RILEY J

EX TEMPORE
REASONS FOR JUDGMENT

(Delivered 10 October 2006)

[1]	On 10 April 2006 the appellant pleaded guilty in the Court of Summary Jurisdiction to three counts of stealing from his employer.  He was convicted on each count and sentenced to imprisonment for a period of two months with that sentence suspended forthwith.  The learned sentencing magistrate imposed an operational period of 18 months.
[2]	The appellant appealed against that sentence on four grounds, namely:
1.	the learned magistrate failed to give adequate consideration to the appellant’s age and lack of prior convictions;
2.	the sentence imposed by the learned magistrate was manifestly excessive;
3.	the learned magistrate failed to sufficiently consider all of the sentencing principles relevant to breach of trust cases;
4.	the learned magistrate unnecessarily fettered his sentencing discretion when he held that gaol is the primary penalty for breach of trust cases.
[3]	The principal ground of appeal was that the sentence imposed was manifestly excessive in all of the circumstances and the other grounds were argued in support of that ground.
[4]	The principles applicable to an appeal against sentence are not in dispute.  A court on appeal will not interfere with an exercise of the sentencing discretion unless the appellant can demonstrate that error has occurred.  The presumption is that there is no error.  In relation to an appeal based upon the ground that the sentence was manifestly excessive, it is incumbent upon the appellant to demonstrate that the sentence is clearly and obviously excessive rather than arguably excessive.
[5]	The circumstances of the offending were not in dispute.  The appellant was employed at the Tandy electrical store in Cavenagh Street, Darwin.  His employment commenced in September 2004 and the offending occurred over a period of four months between September 2005 and December 2005.  During the relevant period the appellant was a store key-holder and this gave him the ability to remove the items stolen without being detected.  He stole a GPS valued at $593.54, an Apple iPod valued at $242 and a Panasonic mobile telephone valued at $220.12.  The total value of the items stolen was $1054.66.
[6]	On 16 December 2005 the appellant went to the Tandy store after being contacted by the manager.  He spoke with the manager and also with a loss prevention officer and during the course of the conversation told them he had stolen the items.  Police later attended and the appellant participated in an electronically recorded interview during which he made a full admission as to the offending.  When asked what he intended to do with the items he told police that he intended to return them to the store but said that he had not done so as he was afraid of being detected.  The items were recovered by police and returned to the store.  The Apple iPod and the Panasonic mobile phone were not damaged and did not lose any sale value.  The GPS was recovered but was missing some components, the value of which were said to be $200.
[7]	The appellant was summarily dismissed upon admitting his offending.  The learned sentencing magistrate was told that he was aged 18 years at the time of the offending and lived with his mother and his sister.  He had left school half-way through year 12 in 2004 and subsequently obtained employment with his victim.  After a period he had been appointed an assistant manager, a position of trust, and at that time was given the keys to which I have referred.  The court was informed that he apologised to the manager at the time of his confession.  It was also informed that he subsequently took steps to rehabilitate himself, including returning to school and obtaining other employment.  He was, at the time, a person without any convictions.
[8]	During the course of written submissions by counsel in this Court, the submissions of counsel who then appeared on behalf of the appellant before the Court of Summary Jurisdiction were noted as submitting that his Honour should consider a disposition which did not involve the imposition of a conviction.  His Honour responded by saying:
“There’s authorities that say you commit a serious offence of stealing from an employer from a breach of trust and you go to gaol, not suspended, gaol, so I think you ought to start aiming a little bit higher than a no conviction disposition.  A conviction is a starting point.  Now, you ought to worry about me suspending a sentence.”
[9]	His Honour went on to observe that the submission had been unrealistic.  In this Court the submission made on behalf of the appellant was that in those observations the learned sentencing magistrate fettered his sentencing discretion unnecessarily by suggesting he was bound to impose a period of imprisonment.  As I have observed to counsel in the course of argument, it must be borne in mind that the remarks made by his Honour were made in the course of submissions and in response to counsel’s request for a no conviction disposition.  Great care must be taken in considering the significance or otherwise of remarks made by judicial officers during the course of submissions.  In this case his Honour was pointing out that a period of immediate imprisonment is the usual and expected punishment in cases of a breach of trust of this kind.  Indeed, that observation was made by the Court of Criminal Appeal in R v Bird (1998) 56 NTR 17 at 33.  The circumstances in which the observation was made by his Honour do not indicate that he did not consider dispositions other than imprisonment to be available.  His Honour went on to say in his short ex tempore sentencing remarks:
“I don’t know if you realise how serious these offences are but stealing from an employer in a position of trust that you are in is considered to be a serious offence and as I told Ms Scattini a moment ago, there is many an authority that says gaol and actual gaol is the appropriate penalty even for first offenders.
The level of severity is assessed by the position of responsibility that you held, the duration that the offending occurred over and also the value of the items.  Now the position of responsibility that you held was a key integral part in enabling you to steal these items undetected because you had the key to the cabinet and you were able to remove them and remove them without detection.  That sounds like to me that you were one of the last people out.
This has gone on over a period of three months and although you claim that you were going to return it, that didn’t occur and it was only when spoken to that the offences were detected, that you admitted to it and the bulk of the items returned.  Now I view that as a serious offence and you should view it as a serious offence as well.  The value of the items taken is of the order of $1000, that is not an insignificant amount.  I (do not) consider it to be an overly high amount but it is certainly a long way off the $10 to $20 type thefts that this court usually sees.  And moreover you have taken items which can only be termed as luxury items.  Nothing to do with necessities, just items which took your fancy and you decided to use them without any consideration of the consequences.”
[10]	His Honour then went on to deal with the matters put in mitigation including the age of the appellant, which of course is a significant matter, his lack of criminal history and his Honour acknowledged that “young people often do stupid things”.  In light of those matters his Honour observed that the appellant was entitled to leniency.  He then proceeded to impose the sentence to which I have referred.
[11]	I regard the sentence imposed as being at the upper end of the available range.  However, I am unable to discern any error in the approach taken in the exercise of the sentencing discretion.  The essential elements and features were accurately summarised, the principles were addressed and the mitigating factors were identified and properly taken into account.
[12]	I do not regard the sentence imposed as being outside the proper range of the sentencing discretion available to his Honour.  In my view, error has not been demonstrated and the appeal must be dismissed.
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