Jettner v Peach [2003] NTCA 16

Lowe v R [1984] HCA 46; (1984) 154 CLR 606

Jettner v Peach [2003] NTCA 16

[1] This is an appeal from orders made by a judge of the court dismissing the appellant's appeal against conviction and sentence in respect of a charge that between 31 January 2000 and 18 August 2000 in Darwin she did steal credit valued at $2805.60 the property of the Darwin Toy Library. The maximum penalty for the offence is 7 years imprisonment.

[2] His Honour recorded the background to the appeal from the Court of Summary Jurisdiction in the following terms. No error is suggested.

"[2] On 1 November 2001 the appellant pleaded not guilty before the Court of Summary Jurisdiction to 17 charges in all. Eventually all charges other than the stealing charge were dismissed. In reaching his conclusion that the appellant was guilty of the stealing charge, his Worship said that he was satisfied beyond reasonable doubt of the following facts:

(a) that the Darwin Toy Library was an incorporated association;

(b) that from about 11 November 1999 until a date prior to 31 July 2000 the appellant was employed by the Darwin Toy Library as Director, her duties including undertaking the financial record keeping for her employer;

(c) that during her time as Director she had the use of a Darwin Toy Library credit card, that is, she was given a credit card where debits incurred on the credit card were billed to the Darwin Toy Library and not to her personally;

(d) that she was never told expressly that the card could not be used for her private use;

(e) that during the appellant's time as Director she used the corporate credit card for her private use and that debits on the card for her private use totalled $2805.60, not $3218.07 as alleged by the prosecution;

(f) that on 18 October 2000 the appellant gave the President of the Darwin Toy Library one Julie Baronio, a cheque for $4139.84 following a conversation between them wherein Mrs Baronio had referred to "inappropriate use" of the credit card by the appellant and "an abuse of her position as Director";

(g) that the appellant did not have permission to use the corporate credit card for her private use and that her use of the card for private use did not occur in the exercise of a claim of right or an honest and reasonable but mistaken belief in the existence of such permission.

[3] The grounds of appeal attacking the conviction were twofold:

(1) that the learned Magistrate erred in reversing the onus of proof in respect to whether the appellant held a mistaken belief as to authorisation, and

(2) that the finding of guilty was unsafe and unsatisfactory."

[3] As to the first ground his Honour agreed with the submission for the respondent that -

"... neither the issue of authorisation nor the related issue of honest and reasonable but mistaken belief that the conduct was authorised were properly raised during the hearing. The appellant neither gave nor called evidence about such a belief. In her record of interview with Police the appellant withdrew an earlier assertion that she had consent to use the credit card for her personal use, a matter to which the learned Magistrate in his reasons expressly adverted. (See pp 353-53 of the transcript of 26 February 2002). No witness called said that personal use of the credit card by the appellant was authorised. This ground of appeal should be dismissed."

"... that in the absence of express authorisation the learned Magistrate properly drew the inference that the appellant had no honest belief she was authorised. This was demonstrated, amongst other things, by her failure to restore the credit she used for her purposes on a monthly basis. As the learned Magistrate said, if the appellant truly believed she was entitled to use the card for her own use so long as the credit was replenished, she would have made payments on a monthly basis so as to replenish the Darwin Toy Library's credit. She only presented a cheque once spoken to by the President Mrs Baronio. The adverse inference drawn by the learned Magistrate was clearly open to him and I am satisfied that no substantial miscarriage of justice has occurred in the finding of guilty. The conviction is safe and satisfactory and the appeal against conviction should be dismissed."

[5] The appellant now contends that the learned judge erred in finding that neither authorisation, nor honest and reasonable but mistaken belief were properly raised at the hearing and further in failing to find that the Court of Summary Jurisdiction had reversed the onus of proof in respect of such authorisation or honest and reasonable but mistaken belief.

[6] Although his Honour's reasons for dismissing the first ground of appeal before him were short, they were nevertheless to the point. Before this Court counsel for the appellant submitted, correctly that it was upon the prosecution to show the guilt of the appellant beyond reasonable doubt and that onus included proving the appellant was not authorised to use the corporate credit card for her own use and that she had no honest and reasonable but mistaken belief that she had been so authorised. However, there is a threshold issue.

[7] The offence of stealing is predicated upon the property being appropriated "unlawfully" (see s 209(1) definition "Steal").

[8] A person is not guilty of an offence if any act constituting it and done by him or her was authorised, justified or excused (s 23). An act is authorised if it is done in any of the four circumstances set out in s 26. An accused person may seek to rely upon any of those circumstances. Those provisions expressly provide for a "defence" whereby the accused person may be exempted or exonerated from criminal responsibility (Evidence Waite and Williams p 95). The Crown is not obliged to bring evidence to meet every such "defence" which could possibly be raised. The accused bears an evidentiary onus to point to or produce evidence from which it could be inferred that there is at least the possibility of any such defence (per Hunt J in Youssef (1990) 50 A Crim R 1 at p 3). It is then upon the Crown to negative the possible defence beyond reasonable doubt.

[9] The accused bears the evidentiary onus in respect of both authorisation and honest and reasonable mistaken belief in the existence of the state of things relied upon (s 32). As to honest and reasonable mistaken belief in particular see He Kaw Teh v R [1985] HCA 43; (1985) 157 CLR 523 at pp 535 per Gibbs CJ with whom Mason J agreed, 554 per Wilson J and 592 per Dawson J. His Worship said that the appellant had failed to "identify any permission" or to "point to permission". We do not consider that in so expressing himself his Worship was reversing the legal onus of proof, as it was submitted, but, rather, was referring to the failure of the appellant to point to evidence which raised either issue. In any event there was no such evidence.

[10] The appellant relied upon some passages in the course of her questioning by investigating police. At Appeal Book p 424 appears the following passage:

"BOAG: ...... Mitchell Street Child Care Cente appears several times

JETTNER: That is child care fees, the first one I believe was actually agreed to be paid by the management committee of the Darwin Toy Library, however, it is mine for actual personal use

BOAG: You say the management committee agreed to the first one?

JETTNER: I believe, no, sorry, so I rescind I take that back, I'm not going into this."

"BOAG: You have in front of you as I said a copy of the spreadsheet. I think I'm at about JB8. Um, this as I explained before is a list of the transactions that the management committee considered personal related to yourself

BOAG: This totals $3,766.91 expended on that. When you had your credit card can you tell me what you understood by the uh, what the uses of it were?

JETTNER: Um, that I had um, my .... just failed me again, I'm just ..... um sorry um, I believe that I had permission to use the Darwin Toy Library credit card for personal uses on condition that it was repaid. Um, I had no reason to believe otherwise

BOAG: Nobody told you when you got your card that they were to be used for Darwin Toy Library only?

[12] Later in the interview the following exchange occurs at Appeal Book p 430:

"BOAG: So did you have any permission from anyone to use the credit card for your own use?

JETTNER: I simply yeah, my mind's simply blank, I've just gone into a bit of a fume since this has happened so, yeah I have no reason to believe I did not have"

[13] None of those passages raise the possibility of a defence by way of authorisation or honest and reasonable but mistaken belief as to such an authorisation.

[14] As to repayment the appellant told police about a cheque for $2500 drawn by her husband which she said she had left in a folder on her desk together with receipts and reconciliation figures when she left her employment. No such folder had been found. The evidence surrounding that matter is not sufficient to raise either issue. The cheque butt upon which the appellant relied to support what she had said about leaving the cheque in the folder indicates that it was written at a time when the total of the value of the transactions on the credit card for her personal use amounted to only about $700.

[15] The appellant sought to rely upon evidence given by prosecution witness Ms Snowball as to what was in her mind when the appellant responded to her request for information about some of the credit transactions. The request was made after the appellant had left her employment with the Darwin Toy Library. It does not assist the appellant. Similarly, the opinions of Ms Baronio as to what should be done if a person had used the corporate credit card for personal use does not raise either issue. Nor does the evidence that the appellant purchased a theatre ticket for herself and another person in that person's presence debiting the cost to the credit card, assist her case.

[16] Although it was not necessary to dispose of the appeal, we do not consider his Honour erred in supporting the inferences drawn by his Worship in relation to the payment by the appellant to the Darwin Toy Library after her wrongdoing had been discovered.

[17] His Honour has not been shown to have erred in dismissing the appeal against conviction. A review of the evidence does not show that it was unsafe and unsatisfactory.

[18] The grounds of appeal in relation to sentence before his Honour were:

(a) that it was manifestly excessive in all the circumstances;

(b) that the learned Magistrate erred in his application of Bird's case, (1988) 56 NTR 17;

(c) that the learned Magistrate erred in failing to sentence the appellant in accordance with the Sentencing Act (NT); (not pursued)

(d) that the learned Magistrate erred in sentencing the appellant "to serve actual imprisonment on the basis, in part, that the appellant's children were beneficiaries of the offence".

[19] His Honour correctly noted that in sentencing the appellant the learned Magistrate paid regard to the following matters:

* there were 29 separate thefts over a period in excess of seven months amounting to $2,805.60;

* she was not entitled to a discount for a plea of guilty;

* she was a married woman 33 years of age with children aged 5 and 3. The father could care for them although needing to adjust his work hours to do so;

* emphasis had been placed upon general and specific deterence.

[20] It is not suggested that either his Worship or his Honour erred in taking those factors into account.

[21] The appellant, however, says that error occurred in the learned magistrate's observations regarding benefits obtained by the appellant's children arising from her offending. It is argued that such a consideration was irrelevant and that in some way it operated to the disadvantage of the appellant. We do not think so. The evident purpose of those observations related to the use to which the credit unlawfully obtained was put, that is for the benefit of the appellant's family. Elsewhere his Worship referred to the maintenance of the appellant's lifestyle. There is no error in a finding as to the disposal of the proceeds of crime.

[22] The remaining submission is that his Honour erred in failing to find that his Worship misapplied Bird's case, (1988) 56 NTR 17. That case is often referred to in this jurisdiction in considering sentence in respect of crimes such as these.

[23] In the course of his sentencing remarks his Worship referred to the following passage on p 33:

"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 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] HCA 46; (1984) 154 CLR 606 at 610-11; [1984] HCA 46; 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 two 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."

[24] His Worship proceeded to relate the various sentencing factors referred to in that passage to the circumstances of this case. It is apparent from his remarks that he considered that general deterrence was a paramount consideration and that specific deterrence was also called for. The thrust of the appellant's submission before this Court was that the sentence of six months imprisonment should have been wholly suspended.

[25] It has not been shown that his Honour erred in failing to uphold the appeal against sentence. He noted the matters taken into account by the learned magistrate. No specific error was found, the sentencing discretion was not demonstrated to be in error and was within the bounds of a sound discretion. We agree. Neither upon a comparison of all of the relevant circumstances of this case and the circumstances in Bird's case, nor upon the circumstances disclosed in relation to sentencing imposed in other cases to which we were referred, does it appear that the sentence here was manifestly excessive. In Aoina v O'Brien unreported Mildren J, 13 January 1994 his Honour noted at p 9 that in all the cases he reviewed where sentence had been wholly suspended there had been a guilty plea.

[26] The decision not to wholly suspend the sentence was not shown to be in error. We would regard the sentence as having been manifestly inadequate had it been fully suspended.

[27] We would dismiss the appeals against conviction and sentence on all grounds.