Rogers v Seppings & Anor [2004] ACTSC 25 (3 May 2004)

Last Updated: 19 May 2004

ADAM ROGERS v TOBY BRUCE SEPPINGS and MARY ANNE BARR

[2004] ACTSC 25 (3 May 2004)

CRIMINAL LAW - sentencing - appeal from sentence - whether manifestly excessive - whether failure to take account of prospects for rehabilitation - no issue of principle.

Crimes Act 1900 (ACT)

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 78 of 2003

Judge: Higgins CJ

Supreme Court of the ACT

Date: 3 May 2004

IN THE SUPREME COURT OF THE )

) No. SCA 78 of 2003

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: ADAM ROGERS

Appellant

AND: TOBY BRUCE SEPPINGS

First Respondent

AND: MARY ANNE BARR

Second Respondent

ORDER

Judge: Higgins CJ

Date: 3 May 2004

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be upheld.

2. Sentence imposed by Magistrate Fryar on 15 December 2003 be varied as follows:

1. In respect of each of the two counts of theft (9585 and 9636) impose a period of imprisonment of 12 months to be served concurrently.

2. In respect of the breach of recognizance, impose a period of imprisonment of six months to be served cumulatively upon the previous sentences.

3. That the operation of those sentences be wholly suspended upon the appellant entering into a recognizance, self in the sum of $2000, to be of good behaviour for a period of five years from the date this judgment is delivered being 3 May 2004.

4. That during this five year period he be subject to the supervision on probation of the Director of Corrective Services (ACT), and obey the reasonable directions of the Director or such person or persons appointed from time to time by the Director for that purpose.

1. This is an appeal against a sentence imposed upon the appellant on 15 December 2003 by Magistrate Fryar.

2. The appellant, on 13 October 2003, pleaded guilty to two charges of theft contrary to s  89 of the Crimes Act 1900 (ACT). He was, on 15 December 2003, sentenced to 12 months imprisonment in respect of each of those two charges (9585 and 9636).

3. Those convictions resulted in the appellant being in breach of a recognizance into which he had entered on 22 October 1999 in respect of an earlier charge of theft. The sentence on that occasion, imposed by Magistrate Campbell, had been that he was sentenced to six month's imprisonment suspended upon him entering into a recognizance, self in the sum of $2000, to be of good behaviour for two years, subject to supervision on probation for two years and to pay compensation of $2,952.

4. The appellant had earlier, in 1993, been convicted on 13 charges of theft, leading to a compensation order in the sum of $18,620 and a 12 month suspended sentence.

5. In respect of the breach of recognizance the appellant was sentenced to six month's imprisonment from 15 December 2003. The sentences of 12 month's imprisonment in respect of the current matters were to be cumulative upon that sentence. A non-parole period of six months from 15 December 2003 was set.

6. On 17 December 2003, the appellant filed Notice of Appeal against those sentences on the ground that they were excessive, giving insufficient weight to the appellant's prospects for rehabilitation. On 19 December 2003 the appellant was granted bail pending the hearing of this appeal. That bail has continued, with minor amendments, since then.

7. The offences had taken place on 1 and 2 November 2000. The first charge alleged a theft from Cougar Computers Canberra Pty Limited of $3,546 worth of computer equipment. The second alleged the theft of $1,124 worth of computer equipment, likewise from Cougar Computers.

8. The facts were that on each occasion the appellant had attended the Cougar Computers store at Mitchell in the Australian Capital Territory and obtained the equipment in question by means of the tender of a valueless cheque. Despite being requested to do so, the appellant failed to make the cheques good.

9. His guilt was apparent because the account on which the cheques were drawn had received only an opening deposit of $10. Even that balance had been reduced by him withdrawing $8.99.

10. Some of the equipment was recovered in consequence of a search conducted on 10 November 1999. The shortfall was valued at $3,870.

11. The prosecution was launched on 13 December 2000. The appellant was summoned to appear on 6 February 2001. He failed to appear. Apparently he had relocated to Melbourne. He did not appear until 1 September 2003.

12. Her Worship was given a pre-sentence report dated 3 November 2003. It reported an explanation for the failure to appear, namely, that the appellant had not received the summons or notice to appear before re-locating.

13. During 2000 it seems the defendant was undergoing a marital breakdown. The marriage ended in July 2000. However, the report stated that visitation rights to his two children were "only recently gained". At Christmas 2002, the defendant resumed contact with his family, which had ceased in January 2001. He remarried in February 2003. His present wife's family are reportedly "very supportive and accepting" of the defendant. The defendant and his wife, Marika, have a young daughter who is now about nine months old.

14. Since resolution of the emotional issues surrounding his marital break-up during 1999, the appellant has undertaken counselling.

15. The report noted that the appellant appeared remorseful and ashamed of his actions. The overall assessment was that -

Mr Rodgers is assessed as a moderate risk offender primarily due to his past offences and recent unemployment. Mr Rodger's circumstances appear to have changed greatly since the time ... of the offences. His move to Melbourne has provided him with a clean start and Mr Rodgers is currently in a stable and supportive environment.

16. On the hearing of the appeal, documents were tendered which satisfactorily established:

1. That the appellant had been satisfactorily employed since January 27, 2004 with VIP Alarms, Dandenong, Victoria at a salary of $30,000 per annum.

2. That the appellant's wife is pregnant with their second child.

3. That the appellant's father considered that the appellant had established a new and normal life style and was accepting responsibility now in a rational and mature manner.

17. Her Worship correctly observed that the theft perpetrated by the appellant was "blatant and premeditated". She also observed that the defendant had relocated to Melbourne after being served with the summons returnable for 6 February 2001, "despite knowing his court commitments".

18. It is noted on the Bench Sheet that there was no appearance of the defendant on 6 February 2001. However, on that day, the matter was adjourned to 13 February 2001. There is a notation "OTND" - that is, Office to Notify Defendant.

19. On 13 February 2001 there was no appearance by or for the defendant but it was noted that no notification had been sent as had been requested by the Magistrate presiding on 6 February 2001. A further note was made that the defendant be notified to attend on 6 March 2001 or else a warrant would issue.

20. On 6 March 2001 there was again no appearance by or for the defendant. A warrant issued.

21. There is, however, no note that any notice, if sent, had been received by the appellant. It is apparent that the warrant was not executed.

22. It may be that the defendant ignored the original summons. If so, it is surprising that a warrant did not issue straight away. However, it is not correct to observe as her Worship did -

The first return date the matter was before the court was 6 February 2001 and the defendant failed to appear on that occasion and a warrant was ordered to issue.

23. It is not apparent that this history of failure to appear should have been regarded as being contumelious as her Worship suggests. Nevertheless, it is fair to observe that the appellant did not enquire as to the status of the matter after the first return date had passed.

24. Further, it was also fair for her Worship to observe that the appellant had, on 22 October 1999, been placed on recognizance for a similar offence with a six months suspended sentence. These current offences constituted a breach of that recognizance.

25. There had been an earlier matter, involving some 13 counts of theft and $18,000 worth of property obtained. That was in 1993. The Chief Magistrate had imposed a suspended 12 month sentence and ordered compensation to be paid.

26. Her Worship was, it seems, informed that that compensation had not been paid. This was another matter adverse to the appellant. It appears that the appellant had been summoned for breach of the 1993 recognizance on the basis of an allegation of non-payment, as her Worship noted. There was, it appears, a record of some "small amount" paid which her Worship had access to.

27. However, there was an entry on 5 March 1998 by the Chief Magistrate stating that the amount of compensation had been paid in full and directing that no further action was required in respect of the alleged breach of the 1993 recognizance.

28. Her Worship, however, concluded -

Clearly, the amount was not paid in full.

29. Thus, whilst no separate action was taken in respect of the presumed breach of the initial recognizance, it is apparent that her Worship did take that matter into account as if it was a proven fact and that the Chief Magistrate had been in error in concluding that the compensation had been paid in full in respect of the 1993 offences.

30. There having been no allegation of breach of the first recognizance it was inappropriate for that to have been raised as an issue particularly as her Worship had no material upon which she could rationally conclude that the Chief Magistrate had been in error. After all, compensation is not always paid through the Court office.

31. It was noted that some compensation, albeit recently, had been paid in respect of the 1999 matter (the second conviction). The total was not clear. There was an ongoing bank debit. It was also apparent that the appellant had but recently gained regular employment.

32. Her Worship then determined to re-sentence the appellant on the breach of recognizance in relation to the 1999 theft matter and imposed a sentence of six months imprisonment. In relation to each of the current matters, her Worship imposed a sentence of 12 months imprisonment, each concurrent with the other but cumulative upon the first sentence. She fixed a non-parole period of six months, commencing on 15 December 2003.

33. The appellant contends that, in the light of the additional evidence, the sentence so imposed should now be regarded as manifestly excessive, even if it had not already been so by reference to the material before her Worship.

34. The errors I have identified do support the view that, absent those errors, her Worship may well have taken a more benign view of the appellant's remorse and change of life style for the better. Clearly, the additional evidence further supports the view that considerable weight should now be given to the appellant's efforts, since early 2001, to rehabilitate himself. It seems to me that those efforts should not be devalued because of the rather murky circumstances surrounding his initial non-appearance.

35. In any event, the impact of the custodial portion of the sentence imposed upon the appellant's family is a relevant matter which now looms larger than it did before.

36. On the evidence before me, I am positively persuaded that the appellant has transformed his life for the better. Nevertheless, the crimes committed by the appellant, being the third in a series since 1993, did call for custodial sentences. I would have imposed the sentences in reverse order to that adopted by her Worship. The re-sentencing on the 1999 offence was consequent upon the current convictions. It should not have preceded the convictions and sentences on those matters. Nevertheless, I agree that the head sentence of 18 months was appropriate. I would, however, given the additional evidence, wholly suspend the operation of those sentences upon the appellant entering into a recognizance, self in the sum of $2,000, to be of good behaviour for a period of five years from today.

37. He will, during that period, be subject to the supervision on probation of the Director of Corrective Services (ACT) and is to obey the reasonable directions of the Director or such person or persons appointed from time to time by the Director for that purpose.

38. The order of the Court is that the appeal be upheld and the sentence imposed be varied as set out above.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 3 May 2004

Counsel for the Appellant: Mr J Sabharwal

Solicitor for the Appellant: Wood Fussell

Counsel for the First & Second Respondents: Ms P De Veau

Solicitor for the First & Second Respondents: ACT Director of Public Prosecutions

Date of hearing: 22 March 2004

Date of judgment: 3 May 2004