Jordan v R [2002] TASSC 121

Judgment Number: [2002] TASSC 121

2 Sentence of 18 months' imprisonment quashed and a sentence of 12 months' imprisonment substituted, with a parole eligibility period of 6 months.

1 The appellant seeks review of a sentence of imprisonment of 18 months following her conviction for the crime of stealing, contrary to the Criminal Code, s234. She had pleaded guilty to the theft of $15,000 during the period February 1999 until August 2000.

2 The appellant had been employed as a cashier by a large retail store and as such held a position of trust. Her position enabled her to access the company's computer system which, in turn, recorded transactions conducted by her as cashier. She was able to conceal her keeping of moneys shown as "cash refunds" by creating false records and entering fake data into the computer system. She did so on some 80 occasions over a period of 18 months. Security officers became suspicious and, following an audit, her misconduct was discovered and she was dismissed from her position. In August 2000, Ms Jordan was interviewed by police and admitted responsibility. She entered some pleas of guilty to charges laid in the court of petty sessions and it was said that she pleaded guilty to the totality of the indictment once her legal advisers were satisfied that the evidence and documentation established the amount stated as stolen.

3 In his comments on passing sentence, the learned sentencing judge regarded her actions as:

"... planned and sustained criminal conduct persisted in for a lengthy period and should not be regarded as an isolated lapse or an error of judgment. ... involve[d] a breach of trust."

4 He took into account her age, remorse, plea and responsibility for the care of two children aged 13 and 15. He placed little significance on a prior conviction recorded in 1987. He imposed a sentence of imprisonment for 18 months and made a compensation order in the sum of $15,000. No specific error is claimed in relation to the sentencing process. The sole ground of appeal is that:

"The Learned Trial Judge erred in law in imposing a sentence that was manifestly excessive in all the circumstances."

5 The principles applicable to such a claim have been considered on many occasions (Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509; House v The King [1936] HCA 40; (1936) 55 CLR 499; Franklin v R 82/1991) and require no repetition.

6 Apart from two matters which will be separately examined, there was little which would have taken the case out of the ordinary. The conduct was prolonged and each breach of trust premeditated. Conscious steps were taken to avoid detection. The nature of the crime required a deterrent response. Some weight was given to the plea but, given that the eventual plea represented acceptance of the strength of the prosecution case, it was of lesser significance (Pavlic v R [1995] TASSC 96; (1995) 5 Tas R 186).

7 Reference was made to the fact that the money taken was because of financial difficulties and was not used for extravagance. The money was used to supplement the family income and meet everyday needs. At the time, as the learned sentencing judge found, the appellant and her:

"husband were taking home a joint gross income in the order of $45,000 - $50,000 a year."

8 The money stolen was used to enhance lifestyle and whilst one can understand that it met modest needs, the actions were not those of a desperate person bereft of other resources. There was little in this aspect of the case which warranted a significant departure from the ordinary sentencing regime.

9 The second circumstance said to have warranted significant amelioration and individualisation of sentence (Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321) was the responsibility of the appellant for her two daughters. The historic approach that since imprisonment will invariably impact on family members it should be regarded as a "neutral" factor has been replaced by recognition that impact is a relevant matter, although it must be identified as special and specific to the particular case since the ordinary effects would apply to all persons with families who are subject to sentence. (Ponsford v Wynwood [1999] TASSC 21; Boyle v R (1987) 34 A Crim R 202; Carpentieri v R (2001) 126 A Crim R 359). Thomas, in his Principles on Sentencing, 2 ed (1979), at 212 refers to family circumstances as a recognisable exception to the general principles stated in the English authorities in cases where:

"... both parents are imprisoned simultaneously, or other family circumstances mean that imprisonment of one parent effectively deprives the children in parental care."

"... the importance of deterrence both general and particular in sentencing and in sentencing for drug offences in particular. But as they say, circumstances can alter cases and the question as I see it is whether the impact which the sentence of imprisonment will have upon the children is a matter which is relevant to the decision to be made, that is to say, to the decision to imprison or to place the applicant upon probation."

"The Australian authorities ... reflect the same approach although they consistently emphasise that the general principle to which I have referred will only be departed from 'in extreme cases': see Wirth (1976) 14 SASR 291, at 294 per Bray CJ or, as Wells J expressed it in that case (at 296) of the report, when to apply the principle would be 'to carry it past the point where a sense of mercy or of affronted commonsense imperatively demands that they (the sentencing judges) should draw back': see, too, Moffa (No 2) (1977) 16 SASR 155 and Spier (1983) 34 SASR 546."

11 The learned sentencing judge was told that the appellant, aged 37, had the care of her two children aged 13 and 15. Between the time of detection and sentence she had become depressed and been made bankrupt, losing her matrimonial home in the process. Her husband had separated from her and was living in South Australia. She was in employment at the time of sentencing and was living with her two daughters in rented premises at Rosetta. The learned sentencing judge was told that:

"... imprisonment [would] simply turn their day to day living into chaos. The father of the children who was or who is Ms Jordan's first husband is still in Hobart but he is employed as a supermarket manager, your Honour, and works six days a week and he works particularly long hours so his availability to assist with the children is effectively nil. Now, the day to day care for the children at this point in time for which Ms Jordan is totally responsible for involves the everyday living that I suspect 13 and 15 year olds experience, your Honour, but then goes to another level in that the 15 year old daughter for example works in Sandy Bay after school. She is required to be driven from school to work. She's required to be picked up at the end of work.

... stepfather - has no involvement with his family whatsoever any more and hasn't since separation and in fact lives in Adelaide now."

"... there are no satisfactory plans because, as indicated, the stepfather is in Adelaide and has no involvement. The children's father, Ms Jordan's first husband, does still live in Hobart and does still have contact with the children.

He however is in full-time employment working as a supermarket manager for six days a week and he works hours consistent with supermarket hours, your Honour, which can lead to him working until 9 o'clock at night, et cetera. So therefore there won't be in place, in my submission, your Honour, a satisfactory day to day arrangement for the children if the children reside with the father which at this point in time - with their father - which at this point in time is the best possible scenario which exists."

12 The 15 year old daughter had obtained "after school" work at Sandy Bay and there would be difficulties in arranging transportation from Rosetta to Sandy Bay. Counsel told the Court that:

"... there aren't any other possible arrangements other than the two children to live with their father in the circumstances of him work six days a week and the day to day living of those children being dramatically affected which includes employment for a 15 year old ...".

13 The learned sentencing judge did not deal with the matter in detail, but accepted that the children "will be victims of [her] criminal conduct."

14 It was not suggested that the children would be taken into care or would not be able to live with their natural father whilst the appellant was in prison. It was not suggested that the natural father lacked resources to care for them.

15 Loss of a responsible and caring mother would naturally impact on the lives of the children, but not to a degree which would warrant the imposition of a wholly suspended sentence (Dinsdale (supra)) so the difference of a term of imprisonment of (say) 12 months as against 15 months, would not remove the impact, but simply lessen its duration.

16 The circumstances were not of a nature or degree which would have warranted significant amelioration.

17 There remains examination of the general range of appropriate penalties. Appellate review ought not involve minor adjustment. The sentence imposed here might be regarded as being at the higher end of the appropriate range, but a belief that it could justifiably have been a little less does not warrant appellate intervention (Franklin v R (supra); Cadman v R 15/1985). The range of appropriate penalties in cases involving stealing is necessarily large, but the systematic theft from an employer over a lengthy period (in this case, 80 acts of theft comprised in a single count) deprive the permitted range of a simple reference to the amount stolen (Evans v Brooks 151/1997; Hill v R [1999] TASSC 29). Warner (Sentencing in Tasmania, 2 ed, 12.206) records that for amounts involving systematic theft "for amounts between $10,000 and $50,000, sentences ranged from four months to two years with a median of 15 months" (Burton v R [2002] TASSC 64).

18 The sentence of 18 months' imprisonment here imposed was within the permitted parameters of the sentencing range. Its length, of itself, does not demonstrate undefined error in the sentencing process.

20 I have had the advantage of reading the reasons for judgment prepared by Slicer J: I agree with them save for his observations on the range of appropriate penalties and his conclusion that the appeal should be dismissed.

21 Where a stealing offence, such as an employee theft, involves a breach of trust a term of imprisonment will be inevitable except in exceptional circumstances or where the amount of money or value of property is small; Barrick (1985) 81 Cr App R 78 and Carreras (1992) 60 A Crim R 402. The appellant stole about $15,000. Whilst this amount is modest when compared with the amount involved in some employee thefts, it is not small. Her circumstances are not exceptional. The learned sentencing judge was obliged to sentence her to an immediately effective term of imprisonment notwithstanding that she was in effect a first offender. As to the length of an appropriate sentence for the appellant, the factor which stands out when comparing sentences imposed for employee thefts is the amount stolen. Other relevant factors such as breach of trust and a prolonged period of dishonest conduct involving many transactions tend to be common to most of these offences.

22 I extract the following from Professor Warner's analysis of sentences for employee thefts:

* In the 1983 - 1989 period, sentences in the middle range of 12 months involved a median amount of $13,000; Sentencing in Tasmania, 1 ed, 12.707.

* In the 1990 - 2000 period, where up to $10,000 was stolen, custodial sentences were imposed in 68 per cent of cases and ranged from 3 months to 12 months with a median of 6 months. Where the amount exceeded $10,000, sentences were invariably custodial. For amounts between $10,000 and $50,000, sentences ranged from 4 months to 2 years with a median of 15 months; Sentencing in Tasmania, 2 ed, 12.206.

23 In Hill v R [1999] TASSC 29, I recorded at par12:

"I have reviewed the sentences imposed by this Court over the past eight years on offenders who, in a position of trust, stole less than $35,000. Of the thirty sentences I have been able to identify, the longest sentence imposed was twelve months' imprisonment. Three thefts of over $25,000 attracted that sentence. The most common sentence was six months' imprisonment."

When considering the penalty appropriate for an employee theft of $15,000, it is not without relevance to look at the penalties imposed for thefts of far more substantial amounts. For example, sentences of 4½ years' imprisonment were imposed on an accountant who stole $550,000 from her employer, Murray, 25 April 1997, and a public servant who stole $350,000, Braslin, 21 September 1999. Whilst it is absurd to suggest that there be a proportionate link between the amount stolen and the length of the sentence imposed; ordinarily sentences involving significantly different amounts should reflect the difference.

24 The primary reason for almost invariably sentencing employees who steal to a term of imprisonment is general deterrence. The message for employees is that if they steal from their employer, they will go to prison. That is a most important message, the impact of which, in my view, is not materially affected by the length of the term of imprisonment imposed. Most employees who steal were previously of good character. If a person of good character is tempted, the predominant discouragement provided by the prospect of a sentence of imprisonment is the inevitability of being imprisoned, not the length of the term of imprisonment. The length of the sentence really only comes into consideration after an offender has been caught. Accordingly, whilst the needs of deterrence create the imperative for imprisoning employees who steal, there is no similar imperative for the imposition of long sentences, regardless of the offender's antecedents.

25 Whilst the appellant had a prior conviction for shop lifting, the learned sentencing judge said, quite correctly, that as it was long ago, it had no significance in the sentencing process. In my view, the appellant being 37 years of age with an almost blameless past and an apparently reasonable work record, the sentence imposed on her did not need to be any longer than was comfortably within the range of penalties imposed on similar offenders. I consider the sentence of 18 months' imprisonment to be manifestly excessive. I would allow the appeal and substitute a sentence of 12 months' imprisonment with a parole eligibility period of 6 months.

26 I agree with the orders proposed by Evans J, and with his reasons.