REGINA v David FIELDS

COUNSEL : Crown: G I O Rowling Respondent: G Whitehead/unrepresented SOLICITORS : Crown: S E O'Connor CATCHWORDS : Criminal appeal - sentence appeal - Crown appeal - larceny. (ND) DECISION : See par 30.

IN THE COURT OF CRIMINAL APPEAL CCA 60462/02

MASON P JAMES J DUNFORD J

Wednesday 18 December 2002 REGINA v David FIELDS Judgment

1 MASON P: This is a Crown appeal against inadequacy of sentence pursuant to Notice of Appeal filed on 15 October 2002 and notified on 10 September 2002. 2 On 6 May 2002 the respondent entered a plea of guilty to a charge of stealing. The plea was entered on the day fixed for trial in the District Court and after an adjournment application had been refused. The respondent adhered to that plea when he came before Puckeridge DCJ for sentencing on 5 September 2002. 3 The charge was that on 6 October 1999 at Auburn the respondent did steal certain property, namely 840 cartons of beer, the property of Linfox Pty Limited. The offence carried a maximum penalty of 5 years' imprisonment. The respondent also asked that a further offence be taken into account under the provisions of s 33 of the Crimes (Sentencing Procedure) Act, 1999. That offence involved stealing an identical quantity of beer some five days earlier on 1 October 1999. 4 The learned judge sentenced the respondent to a term of imprisonment for 14 months to be served by way of periodic detention. He declined to set a non-parole period, or to find special circumstances pursuant to s 44 of the said Act, and his Honour ordered the respondent to pay compensation in the sum of $40,504 being the wholesale value of the stolen beer at the rate of $1,000 per month. His Honour observed that $13,000 had already been paid as at that date. 5 The facts out of which the charge to which the respondent pleaded guilty are as follows: In October 1999 the respondent was in the employ of Linfox Pty Ltd as a maintenance man at its yard at Manchester Road, Auburn; from the yard, which was called the 'Clyde Yard', Linfox Pty Ltd managed the distribution of beer products on behalf of Carlton & United Breweries throughout the Sydney Metropolitan area.

On 6 October 1999 arrangements were made for a truck the property of Linfox Pty Ltd to be weighed on a public weighbridge in order to change its registration from Victoria to New South Wales and the respondent was asked to take it to be weighed both laden and unladen.

On that date the respondent arranged for the truck to be loaded with 12 pallets each bearing 70 cartons, a total of 840 cartons, of 24 bottles each of 375 ml of VB beer; the only documentation relating to the load that was prepared was a pallet docket.

At about 8.30am that morning the respondent left the yard driving the laden truck and at about 8.50am had it weighed; shortly before 9.30am he returned to the yard with the truck, still laden; it was not unloaded.

At about 12.45pm that afternoon the respondent again left the yard driving the truck which was still laden; at about 2.30pm the respondent was given a lift from a depot of Linfox Pty Ltd at Homebush back to the Clyde Yard; at about 1.30pm a security guard at the Clyde Yard, concerned that the truck had not returned, made enquiries and at about 7pm that evening it was found at the Homebush depot and to be empty; enquiries showed that it had not been unloaded at the Clyde Yard and a stocktake showed that the stock at the Yard was deficient by more than 840 cartons of VB beer.

On 9 October the respondent paid $15,000 in cash to Ray Lahood Motors for the purchase of a Holden Commodore motor car.

The facts out of which the offence which the respondent asked to have taken into account are as follows: On 27 or 28 November 1999 the assistant manager of Theo's Liquor Store at Winston Hills placed an order with Linfox for the delivery of 60 pallets each bearing 70 cartons of 24 bottles each of 375 ml of VB beer; he expected this to be delivered as 5 truckloads. 4 truckloads only were delivered. In late November 1999 enquiries showed that at about 8.50am on 1 October 1999 the respondent left the Clyde Yard driving a truck laden with 12 pallets each bearing 70 such cartons, a total of 840 such cartons; no delivery list for the delivery of the load could be found.

At the time of the commission of the offences the respondent was not the holder of a current driving licence in New South Wales.

None of the beer has been recovered; the wholesale value of each load of 12 pallets of 70 cartons was $20,538 and the retail value was $25,116. 6 The respondent was 30 years old at the time of the offences. He had been educated to Year 10 of High School. He had been in a de facto relationship since the age of 20. There are three children and he is the only provider for his wife and children. 7 There was an extensive criminal record which included convictions for dishonesty and driving offences including offences of driving while disqualified. At the time of the commission of the offences presently in question the respondent was subject to sentences of imprisonment imposed for offences of dishonesty which he was serving by way of home detention. 8 A clinical and forensic psychologist, Dr Walker, reported that the respondent was a severely depressed man requiring medication and psychiatric intervention who was a suicide risk. She also reported that he was of above average intelligence but that he was impulsive, easily led and submissive. 9 There was also a pre-sentence report from the Probation and Parole Service, which indicated that the respondent had "expressed his remorse for his behaviour and appears to have accepted his role in the offence. However he maintained that the offence was union related and that he did not gain financially from his actions". 10 This last mentioned assertion was not backed up by any sworn evidence and it was clearly not a fact found in the respondent's favour, if it could operate in his favour, by the sentencing judge. 11 On 4 September 2002 the respondent made a statement to the police for the purpose of giving assistance to the authorities. The sentencing judge found it to be of little assistance. 12 The respondent, as I have said, did not give evidence in the sentencing proceedings but his legal representative informed the Court that he had a full-time job as an Account Manager earning $75,000 gross per annum. It was submitted that a custodial sentence would cause him to lose this job with the consequential inability to make restitution for the value of the property stolen. 13 The Crown submitted to the sentencing judge that there must be a sentence by way of full-time custody having regard to the respondent's criminal history and his rejection of the benefits of sentence leniency previously afforded to him. 14 In his remarks on sentence the learned judge observed that there had been a clear breach of trust by an employee. The goods in question had not been recovered although $13,000 out of a total value of $40,504 had been paid to date by way of compensation. 15 His Honour noted the second offence, being the one that was to be taken into account under s 33, but did not appear to regard it as a significant factor in the sentencing exercise. The sentencing judge took the plea of guilty into account and referred to the details of Dr Walker's report. In particular his Honour noted that the report of Dr Walker stated that she had telephone contact with the respondent's wife who had impressed her as a sincere worried lady. The judgment continued: "Mrs Fields stated to Dr Walker that her husband had been severely depressed for a long time and that she was worried about him. She also stated that she was not aware of the details of her husband's alleged threats by union members. Union involvement or said union involvement in the commission of the offences was referred to in the probation report of 5 June 2002. In that report Mr Jiminez stated, 'The offender maintained that the offence was union related and that he did not gain financially from his actions'." 16 Continuing his Honour said: I do not consider that the Court can take into account the fact that there might have been any involvement by the union in forcing the offender to steal the truckload in question. Rather, it just further indicates the opinion and confirms the opinion of Dr Walker that the offender is impulsive, easily led and submissive. 17 The written submissions of the respondent concede that the sentencing judge erred in not setting a non-parole period pursuant to s 44(1)(b) of the Act. This error would entitle this Court to intervene but it does not really lie at the heart of the Crown appeal. 18 The Crown contends that the sentence imposed was manifestly inadequate and its submissions are as follows: Further, the offence for which the respondent fell to be sentenced was aggravated by having been committed by him while serving sentences of home detention imposed upon conviction for offences of dishonesty, and by having been committed while there was current the Court Attendance Notice referred to in paragraph 24 of these submissions: Readman (1990) 47 A Crim R 181.

Further, the respondent having asked his Honour to take into account a further offence of the same nature also committed while he was serving those sentences of home detention, required that an additional penalty be imposed upon the respondent on this account: R v Morgan (1993) 70 A Crim R 368, 371-2 per Hunt CJ at CL, R v Barton [2001] NSWCCA 63, paras 54-64 per Carruthers AJ.

It was open to his Honour to reduce the sentence of imprisonment that he would otherwise impose by reason of the respondent's plea of guilty: see the provisions of s 22 of the Crimes (Sentencing Procedure) Act 1999 and R v Thompson (2000) 49 NSWLR 383, paras 152-60 per Spigelman CJ, where the appropriate reduction is said to be reduction of the sentence by between 10% and 25%; a sentence of periodic detention being one of great leniency ( R v Zamagias [2002] NSWCCA 17, para 29 per Howie J) and appreciably less than fifty percent as significant as a full-time sentence: ( Qi (2000) 102 A Crim R 172, 176 per Smart AJ) the reduction allowed by his Honour was inappropriate.

The respondent did not give evidence in support of the assertion of his remorse and it ought to have been given little weight: R v Qutami [2001] NSWCCA 353, paras 58-9 per Smart AJ and 79 per Spigelman CJ and R v Palu [2002] NSWCCA 381, paras 40-1 per Howie J. In any event this was a strong Crown case.

By imposing the sentence he did, his Honour failed to impose a sentence that properly reflected the objective seriousness of the offence, see R v Hayes [2001] NSWCCA 358 para 51 per Sully J and R v Rushby [1977] 1 NSWLR 594, 597D-598E per Street CJ; permitted the respondent's subjective circumstances to cause inadequate weight to be given to the objective circumstances: R v Dodd (1991) 57 A Crim R 349, 354, and failed to meet the fundamental purpose of punishment, namely the protection of society: R v Camilleri (Unreported Court of Criminal Appeal 8 February 1990). In so doing his Honour fell into error. 19 The nub of the respondent's submission is notwithstanding the sentencing judge's error of law in relation to s 44, the sentence imposed has not been shown in the circumstances to have been manifestly inadequate. It is submitted that the judge's discretion was exercised properly in the circumstances. Alternatively, this Court should exercise its discretion not to intervene to correct the sentence (cf R v Holder [1983] 3 NSWLR 245 at 255. 20 It was submitted also before us that the respondent as he presents himself to the Court today is in a "cross roads" position and that he should attract leniency or the exercise of discretion to dismiss the appeal. 21 Evidence placed before us today shows that the respondent has complied with the restitution order to the extent that he has paid $3,000 since the order was made, which corresponds with the intended rate of $1,000 per month. He has complied with the order for periodic detention, the record of Sentence Administration showing that he attended on seven occasions, he was given sick leave or absence approval on five occasions. There appears to have been one occasion when he was away without leave but I do not really place any store on that. 22 We were informed, and I do not understand this to have been disputed, that the respondent sold his home on the eve of the sentencing proceedings before Puckeridge DCJ in order to be able to pay legal expenses and to contribute the $13,000 that was paid prior to the sentencing by way of partial restitution. We were also informed that the respondent subsequently purchased a new home, subject to a mortgage. This occurred on 15 September of this year, after the Crown had given written notice of its intention to bring this appeal. I do not in the circumstances think that that provides a significantly relevant matter to the sentencing exercise with which this Court is faced. 23 In my view the Court should accept the Crown's submission that the sentence is manifestly inadequate. 24 The objective circumstances of the offences are such that the judge imposed a manifestly inadequate sentence. The two offences had involved some planning and entailed a serious breach of trust. The sums involved are substantial and the money was spent in part on the purchase of a motor vehicle. The stolen goods have not been recovered nor has the money been repaid except to the extent to which restitution has already been effected and the respondent is certainly entitled to credit for that. 25 The need for specific and general deterrence to be borne in mind is obvious, notwithstanding the evidence that the respondent has an impulsive nature. If this had been a first offence involving dishonesty then it would have been open to the Court to show considerable leniency, having regard inter alia to the respondent's circumstances, including his role as a provider for his family, and the impact of a sentence of imprisonment upon his existing employment and his capacity to make full restitution. But that time had unfortunately passed. 26 It is my view that the "cross roads" had been passed at the time the respondent came up for sentence. Events that had occurred subsequently with a further conviction only makes that position even clearer for this Court. The message given by previous instances of judicial leniency had not been taken on board. The plea of guilty, late though it was, was entitled to some weight, much more so for its utilitarian value than for the evidence of contrition that was said to carry. But it did not justify the discounting that occurred. 27 It is obvious, therefore, that I will be proposing an order that involves the quashing of the custodial sentence and re-sentencing. In my view the proper approach is to start with the term that was imposed by the judge of 14 months. I do not do that because I necessarily endorse it but it has not been suggested that that was where the error occurred and this is the situation where the restraint that attends a re-sentencing exercise of this nature should be applied. 28 I would give credit for the fact that the sentence has been partially served in the circumstances that I have indicated; and rounding the matter down, perhaps generously, would arrive at a head sentence of 12 months. I see no reason to disturb the statutory provision and therefore propose a 9 month non-parole period. 29 The order for restitution should stand but it should be suspended while the respondent is serving a period of full-time custody and for a reasonable period thereafter to enable him to get back on his feet. He appears to be a resourceful man and one can assume I think that he will get back on his feet. 30 The orders I therefore propose are as follows: 1. Allow the Crown appeal. 2. Quash the sentence of imprisonment. 3. In lieu thereof and taking into account the period of periodic detention already served, sentence the respondent to a term of 12 months imprisonment to date from today and to expire on 17 December 2003; fix a non-parole period of 9 months expiring on 17 September 2003 and order that on that date the respondent be released on parole, subject to the conditions specified in the regulations. 4. Confirm the order for restitution but order that it be suspended until the commencement of 2004. 31 JAMES J: I agree with the judgment of the President and with the orders proposed by his Honour. 32 DUNFORD J: I also agree.

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