Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate.

Applicant: Acting Director of Public Prosecutions

Judgment Number: [2015] TASSC 53

1. The respondent was charged and found guilty of one count of receiving stolen property, contrary to s 258 of the Criminal Code 1924.
2. The particulars of the charge were that on or about 8 April 2011 he knowingly received stolen property being a pallet of smoked salmon sides to an approximate value of $8,080.
3. He was sentenced by Magistrate S Cooper on 20 March 2015.
4. The learned magistrate dealt with him under s 7(f) of the Sentencing Act 1997 (the Act), adjourning the proceedings against him for five years on his giving an undertaking to be of good behaviour during that time, and not to commit any offence or crime involving an element of dishonesty.
5. He was sentenced on the basis that the magistrate considered the value of the property was $7,663.40. I do not find it necessary to consider the respondent's contention that the value was much less than that.
6. On passing sentence the magistrate commented as follows:

"Receiving is a serious matter, it's frequently said that without receivers there are no thieves although that's not quite right because thieves will of course steal for their own ends, but the act of receiving doubtless encourages stealing.

The property involved was valuable, and in this case no discount is available for a plea of guilty. Mr Caccavo is 48 years of age and you were 44 at the time you offended [sic]. You come before the Court for sentence today without blemish of any type and specifically without prior conviction for any offending of this type or anything remotely like it. You are a successful businessman and a committed family man. You're a respected and productive member of the community and the many references that were tendered to me speak to your character and your ongoing community service.

The profit you in fact made was modest, in the order of two hundred dollars. Your offending and the following publicity I was told and I accept has had a significant impact on your reputation and a demonstrated impact upon your financial position. I have been told and I accept that at least one major supplier refuses to have any further dealings with you. You of course had a co-offender, ordinarily considerations of parity are very important in cases like this, but your co-offender was in a substantially different position.

He had numerous prior convictions for offences of dishonesty. He had been fined, made the subject of a community service order, made the subject of probation, had received sentences of actual and partially suspended imprisonment all for offences of dishonesty. You, as I have already said, have nothing like that in your record. There is a clear and proper basis in my view to distinguish between you and the thief from whom you received the stolen property.

Your offending although not trivial was, in my view, an isolated lapse of judgment. You are plainly not and should not be treated as something in the nature of a professional receiver. I was urged by your counsel to deal with the matter under s7F [sic] or possibly 7G [sic] of the Sentencing Act and not record a conviction. I have given the matter anxious consideration. I have considered carefully the matters I have to consider in terms of s9 of the Sentencing Act, and I believe I have already dealt with those in my comments thus far.

In my view because your offending was an isolated lapse of judgment, has had a significant, demonstrable impact professionally and personally upon you, because you have an absence of prior offending, because in my view these proceedings as drawn out as they have been - for non-one's [sic] fault but they have been drawn out, must have had a salutary effect upon you, because of your age, your antecedents and your hitherto unblemished character, and having regard to the value of the property that I have found, I cannot [sic] think in all of the circumstances still deal properly with the matter under s7F [sic] of the Sentencing Act without the recording of a conviction but on terms, and by making an order for compensation pursuant to s68 of the Sentencing Act."

1. Section 9 of the Act provides as follows:

In exercising its discretion whether or not to record a conviction, a court must have regard to all the circumstances of the case including -

(a) the nature and circumstances of the offence; and

(b) the offender's antecedents and character; and

(c) the impact that a conviction would have on the offender's economic or social wellbeing or employment prospects."

1. Section 58 of the Act provides as follows:

"58 Purpose of orders to adjourn, discharge or dismiss

An order under section 7(f), (g) or (h) may be made for such one or more of the following purposes, as is relevant in the circumstances, as the court thinks fit:

(a) to provide for the rehabilitation of an offender by allowing the offender's sentence to be served in the community unsupervised;

(b) to take account of the trivial, technical or minor nature of the offence committed by an offender;

(c) to allow for circumstances in which it may be inappropriate to record a conviction against an offender;

(d) to allow for circumstances in which it may be inappropriate to inflict any punishment other than a nominal punishment on an offender;

(e) to allow for the existence of other extenuating or exceptional circumstances that may justify the court showing mercy to an offender."

1. Whilst it is not asserted by the applicant that the magistrate lacked jurisdiction to make the order he did, the applicant appeals on the ground that the magistrate nonetheless erred in fact and/or in law in that he imposed a manifestly inadequate sentence.
2. The applicant points to a number of features of the respondent's offending, as were noted by Tennent J (Collins v Caccavo [2014] TASSC 1) in her reasons for upholding an appeal against the respondent's original acquittal by the magistrate, and to other features noted by Pearce J (Caccavo v Collins [2014 TASFC 7) on appeal against her Honour's decision. They include the following:

- The respondent purchased a quantity of Tassal salmon, a product he did not usually stock, at a price clearly well below market price, and from a Mr Young, a person the respondent must have known as an employee of Tasports and not Tassal.

- The salmon was purchased for cash and no receipt was provided.

- There was no reason for the respondent to be offered "bonus" stock by a company he did not deal with.

- The respondent was experienced in the purchase of salmon from another supplier, and an inference must be open that he had some knowledge of prices. Even on his estimate of $9 or $10 per kilo, the pallet was worth far more than he paid.

- The respondent's evidence about his not knowing Mr Young was inconsistent with evidence of his dealings with him over several years, and that he had his mobile telephone number in his phone.

- The telephone records were probative evidence of communications between Mr Young and the respondent.

- Those records showed a text from Mr Young to the respondent at 7.27am on 8 April 2011, and the respondent responding to the text almost immediately by phone. They also show he rang Mr Young again later in the day. These communications were consistent with arrangements being made for the salmon to be collected that day, and not consistent with just general communication about stock collection.

- The applicant was a regular customer of TasPorts. TasPorts' business was only to store goods owned by others and did not involve sale of goods of any nature.

- Mr Young was a storeman at TasPorts. His job was to load and unload trucks in the warehouse. He did not sell products or handle receipts. He knew the applicant and saw him three to four times each week in the TasPorts' cool store.

- TasPorts' cool store employees wore freezer suits with a TasPorts' logo on it. Mr Young never wore a Tassal uniform.

- Mr Young asked the applicant if he wanted to buy the fish on 7 April 2011 and was paid $200 on that day. The balance was paid on the following day when the applicant picked up the fish at a time arranged by phone. The applicant was present while Mr Young covered the pallet with cardboard and cling wrapped it before removing it from the store.

1. Those features clearly show that the respondent's offending was serious.
2. Counsel for the applicant, Mr Nicholson, in his written submissions, contended that the features noted by Tennent J, and I assume also those noted by Pearce J, and the magistrate's finding as to the value of the property received, "warranted, in the consideration of sentence, at least the recording of a conviction" and that, "[a]s the learned Magistrate observed, the nature of the offence committed by the respondent was, prima facie, serious".
3. Mr Nicholson submitted;

1. The respondent was entitled to some leniency as he was not a professional receiver: Carnicelli Serial No 52/1963; Pappas Serial No 50/1966; however
2. As Tennent J observed at [45] (extracted above), the respondent purchased a quantity of a product he did not normally stock, at a price well below the market price, from a person who he must have known was not an employee of Tassal, in circumstances where the purchase was made by cash without a receipt and where there was communication between the respondent and the 'thief'. Respectfully, the conduct went beyond a lapse of judgment, but to the type of wilful blindness referred to by Burbury CJ in R v Quillerat."

1. Were that submission one that was made to me had I been sentencing the respondent, I would have accepted it. In my own view the magistrate should have taken the course that he did but with the recording of a conviction as he was able to do under s 7(f) of the Act. I accept Mr Nicholson's submission, made in oral argument, that "the offence itself and the circumstances of its commission" warrant the punitive sanction of a conviction.
2. My own view, however, is not determinative of this appeal.
3. The circumstances in which a judge of this Court may overturn a sentence imposed by a magistrate are well known. They have been, very recently, comprehensively collected and considered by Pearce J in Barrett v Wilson [2015] TASSC 3; (2015) 69 MVR 333 and Lyons v Bakes [2015] TASSC 37.
4. The considerations relevant to a case such as the present, that is, a Crown appeal against sentence brought by notice to review under s 107 of the Justices Act 1959, can be distilled from Barrett v Wilson and Lyons v Bakes, and include the following:
   • The appellate court may not substitute its own opinion for that of the sentencing magistrate merely because it would have exercised the sentencing discretion in a different way.
   • A sentencing court has a wide measure of latitude that is to be viewed with respect and restraint by appeal courts.
   • An appellate court must not interfere with the exercise of the sentencing discretion, except in a clear case of error. A magistrate is vested with a very wide discretion.
   • It is not sufficient to set aside a sentencing order just because a more severe sentence would have been imposed by the appellate court.
   • A motion to review must fail unless the Court is satisfied that the sentence was so manifestly wrong in its inadequacy, as to amount to a clear error in the sentencing process.
   • Manifest excess or inadequacy must be plainly apparent.
   • There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case.
   • There must always be a place for the leniency which has traditionally been extended even to offenders with bad records.
   • Crown appeals should be brought only in limited circumstances, such as where a sentence reveals such manifest inadequacy as to constitute an error in principle, or where a sentence is so disproportionate to the seriousness of the crime as to shock the public conscience.
5. It follows that my own view as to an appropriate sentence in the circumstances of this case is not of itself a basis for allowing the motion to review and, bearing in mind the very wide measure of discretion vested in a magistrate which must be viewed by me with respect and restraint, I am wholly unable to say that manifest inadequacy is plainly apparent.
6. I am very conscious of considerations of the public interest which militate in favour of the recording of a conviction.
7. In Attorney General v Smith [2002] TASSC 10, Crawford J (as he then was) said at [26] :

"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. Regard must be had to the purposes specified in s58. If the offence is of a relatively serious nature, the Court may feel compelled to record a conviction. In addition to public interest questions, it is proper that the Court have regard to whether the victim of such an offence might reasonably not feel vindicated by the failure to record a conviction."

1. I have already said, and it cannot be gainsaid, that the respondent's offence was serious criminal offending. However, the nature of the offence is not the sole or dispositive consideration. So much is clear from s 9(a) and (b) of the Act. Moreover one does not have to look far into recent sentences passed by this Court in order to find that s 7(f) may be still be utilised without the recording of a conviction in the case of a crime of a serious nature.
2. On 14 August 2015 Kyle Douglas Schultz pleaded guilty to a charge of unlawfully setting fire to property, and a charge of attempting to dishonestly acquire a financial advantage. At the behest of the owner he burnt a motor vehicle that was insured for $21,100 and was to receive $2,000 out of the fraudulent insurance claim that was to follow. Upon the defendant's undertaking to be of good behaviour for two years, Blow CJ adjourned the proceedings for that period, without conviction.
3. I accept that Mr Schultz was a young man who had pleaded guilty and had co-operated with police. No doubt other distinguishing features could be found. Equally, other features of the respondent's personal circumstances could be cited as relevant substitutions for those of Mr Schultz that are lacking in the respondent's case. They could include his previously unblemished character and his heavy financial losses resulting from his offending. However, that is not the point. The point is that it is not the case that, as a matter of course, s 7(f) of the Act is not to be applied without conviction whenever the offending can be described as serious.
4. It follows from what I have said that, despite my own view of the matter, it was open to the magistrate to adopt the course he did and, adopting a principled approach to the resolution of the issue in this appeal, it cannot, in my view, be said that the magistrate erred by imposing a sentence that was manifestly inadequate in all of the circumstances.
5. The motion to review is dismissed.