Evans v Davis [2002] NTSC 67

PARTIES:	MATTHEW ROBERT EVANS

	v

	STUART AXTELL DAVIS

TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:	SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction

FILE NO:	JA 79/02 (20119576)

DELIVERED:	18 December 2002

HEARING DATES:	6 November 2002

JUDGMENT OF:	THOMAS J

CATCHWORDS:

APPEAL – APPEAL AGAINST SENTENCE
Appeal against sentence on the grounds that the sentence imposed by the sentencing magistrate was manifestly excessive in all the circumstances of the offender –Breach of trust in stealing from employer – Imprisonment a sanction of last resort. 

Criminal Code (NT) s 210

Ragget Douglas and Miller v R (1990) 50 A Crim R 41, R v Bird 56 NTR 17, applied.

REPRESENTATION:

Counsel:
	Appellant:	I. Read
	Respondent:	A. Fraser

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

Judgment category classification:	C
Judgment ID Number:	tho200213
Number of pages:	6

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

Evans v Davis [2002] NTSC 67
No. JA 79/02  (20119576)

	BETWEEN:

	MATTHEW ROBERT EVANS
	Appellant

	AND:

	STUART AXTELL DAVIS
	Respondent

CORAM:	THOMAS J

REASONS FOR JUDGMENT

(Delivered 18 December 2002)

[1]	This is an appeal from a sentence of the Chief Magistrate who convicted the appellant of an offence of stealing and sentenced him to one month imprisonment suspended forthwith on condition the appellant be of good behaviour for twelve months.
[2]	The exact charge to which the appellant pleaded guilty is set out as follows:
[3]	On 10 November 2001, at Darwin in the Northern Territory of Australia
1.	did steal cash, valued at $27.95, the property of Liquorland Casuarina Village.
Contrary to Section 210 of the Criminal Code.
[4]	The agreed facts are as follows:
“… in September 2001 the defendant, Mr Evans, was employed by Liquorland Casuarina Village to complete a two year traineeship as a retail manager.  On Saturday 10 November 2001 the defendant was working an evening shift by himself at the Casuarina Village store.
At 8.45 pm a customer approached the defendant and placed a 700 ml bottle of bourbon and two bottles of coke on the counter.  The defendant scanned the items for the customer to purchase, bringing the total purchase price to $27.95.  The customer handed over the cash to the defendant, and the customer walked away without a receipt and left the store with the purchased goods.
The defendant placed the cash, being $27.95, into his wallet and placed his wallet into his back pocket.  He then cancelled the transaction by hitting the void button on the register.  Some time later the defendant wrote on the back of the void receipt: ‘Customer was not decided/other customers waiting’.
At 9.22 am on Friday 14 December 2001, the defendant participated in a formal record of interview.  The defendant - - -
…..
…  It is indicated that full admissions were made during the interview, Your Worship.  He was advised he would be summonsed for the offence.
When asked for his reasons for stealing, the defendant said: ‘I had to get my car home, I needed fuel money to get it home’.  At no time did the defendant have permission to steal the property of Liquorland.”
[5]	In his Notice of Appeal the appellant listed the grounds of appeal as:
“1.	That the learned magistrate imposed a sentence that was manifestly excessive in all the circumstances of the offender and the offence.
2.	That the learned magistrate erred in recording a conviction against the appellant.”
[6]	In his Outline of Submissions, Mr Read, counsel for the appellant, set out the following matters for consideration:
“That in all the circumstances the sentence was manifestly excessive.
1.	That the Learned Magistrate in sentencing the appellant to 1 months imprisonment suspended immediately for 12 months did not give sufficient weight to:
(a)	The indication of an early plea of guilty and cooperation with the investigating officers;
(b)	The absence of prior convictions and the positive good character of the appellant at the age of 24;
(c)	The relatively small amount of money stolen from the employer ($27.95) and the fact that the theft was on one isolated occasion;
(d)	The effect that a term of imprisonment may have on the appellant’s future prospects of employment;
(e)	That the appellant would appear to have made restitution prior to the Court proceedings; and
(f)	The principal that a term of imprisonment should only be imposed as a sentence of last resort.”
2.	That in sentencing the appellant to 1 months imprisonment suspended immediately for a period of 12 months the Learned Magistrate gave undue weight, by inference, to the principal of general deterrence as it applies to stealing in a position of trust.”
[7]	The principles on an appeal of this nature are set out in Raggett Douglas and Miller v R (1990) 50 A Crim R 41 at 42.
[8]	The appellant entered a plea of guilty before the Chief Magistrate.  It was part of the agreed facts that the appellant had made full admissions in his Record of Interview.  It is implicit in his Worship’s reasons for sentence, that he took account of an early plea of guilty and cooperation with the investigating authorities.
[9]	Counsel for the appellant advised the learned chief magistrate that the appellant was 24 years of age.  The prosecutor had advised the court the appellant had no prior conviction.  His Worship indicated he had read a number of character references that were put forward on behalf of the appellant and obviously took the issue of prior good character into account when he said (tp 7 - 8):
“…  It seems that you are otherwise a good character, people obviously trust you, and I sincerely hope the references, which you have given to me, would be available to your employer to keep you in that job to which you are now in.  And if you prove yourself with that employer, no doubt when the time comes for you to manage your own store, your own shop, as it were, the Licensing Commission can look at that good record as being appropriate.”
[10]	In his reasons for sentence his Worship was concerned with the breach of trust.  On this issue, he stated (tp 7):
“All civilised communities are built on trust.  You have pleaded guilty today to stealing, not from a stranger, not from your family, but to an employer who gave you the opportunity to partake in a program and develop a program for you to become a manager within this business.  You were placed in a position of trust.  You were there with the capacity to handle money, and to look after it on behalf of - as it were, in trust of that money, to hold that money in trust - for your employer; to receive it on their behalf and handle it in accordance with known procedures.
You breached that trust, and that is not just the charge of stealing, but regarded as charged with stealing from your employer, which I’ve discussed with your counsel.  It is regarded as more serious than an ordinary stealing charge.  I can’t overlook it.
As I also indicated also to your counsel, it seems to me that it is not my decision to decide whether you should continue to work for MGM.  I hope, and express that hope, that if they trust you they will continue to give you that employment, because I don’t want what happens today to force you into a position where you’ll have disregard for the system, as it were.
But nevertheless I can’t let the matter go unpunished and without setting an example, or making an example of you for others, who think they can just simply take their employer’s money when it is convenient for them, so they don’t have to walk home; they don’t have to borrow from their fellow employees.”
[11]	I am not able to find that his Worship was in error in viewing the breach of trust as a serious matter.
[12]	The Northern Territory Court of Criminal Appeal stated in the decision of R v Bird 56 NTR 17 at 3:
“The matters to be taken into account and the approach in this jurisdiction to sentencing for offences involving breach of trust by employees are reasonably clear, but may conveniently be restated. In general, unless the circumstances are very exceptional or the amount of money involved is small, a sentence of immediate imprisonment is the usual and expected punishment in such cases. The sentence, and that part of it which is directed to be served, must be sufficiently substantial to indicate to the public the gravity of the particular offence. While the amount of money taken is not the only determinant of the length of sentence, it is a useful practical indicator. Where very large sums of money are taken, as here, a lengthy sentence of imprisonment is warranted. Other factors being equal, like defalcations should be dealt with by like sentences and more serious defalcations by heavier penalties; this satisfies the need for consistency in punishment, referred to by Mason J. in Lowe v R (1984) 154 CLR 606 at 610-611; 54 ALR 193 at 196.  Apart from the amount involved, other factors to be considered when imposing sentence include: the period over which the criminal enterprise was carried on - in this case a little over 2 years; the quality and degree of trust reposed in the accused by his employer, including the accused's position in the employer's organisation; the use to which the accused put the moneys - in this case, mainly gambling; the impact of the offence and sentence upon the accused's fellow-employees and the public - see the observations in R v Steven and R v Green (Schedule infra); where relevant, the impact upon public confidence in the employer; the effect of the defalcation upon the employer; the effect of the sentence upon the accused; the history and personal circumstances of the accused and any matters of mitigation personal to him. Where the breach of trust is serious it is usually not appropriate to suspend any part of the sentence."
[13]	In the matter before this Court the amount involved is very small, $27.95.  The offence was one single act of dishonesty not a series of defalcations.  The money was reimbursed to the employer.  The appellant lost his job.  The appellant has no prior convictions and is otherwise of positive good character.  He is a young man 24 years of age.  He co-operated with the authorities and entered a plea of guilty at an early stage of the proceedings.
[14]	A sentence of imprisonment is a sanction of last resort.  It is not appropriate to impose a suspended sentence of imprisonment unless the offence itself warrants a gaol sentence.
[15]	Whilst a breach of trust is serious, I consider the circumstances of this offence and of the appellant are such that a sentence of imprisonment is manifestly excessive.
[16]	I consider the aspect of general deterrence which is a factor in the sentencing for such an offence is adequately dealt with by a conviction and imposition of a fine.
[17]	I would allow the appeal.  I consider there should be a conviction for the offence because of the serious aspect of it being a breach of trust.  I would quash the order for a suspended gaol sentence and substitute an order for a fine of $300.

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