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Court of Criminal Appeal 4 September 2001

R v Murtaza [2001] NSWCCA 336 revised - 5

[2001] NSWCCA 336

Theft & property
SENTENCING LARCENY BY A SERVANT

Citation: R v Murtaza [2001] NSWCCA 336
Court: NSW Court of Criminal Appeal
Date: 4 September 2001
Judge(s): Hodgson JA, Dowd J, Carruthers AJ

Background

The respondent, an employee of a computer equipment distributor, was charged with larceny as a clerk under s 156 of the Crimes Act 1900. Over sixteen months he stole approximately $80,000 worth of equipment from his employer, gaining after-hours access to the premises using a security card issued to him by virtue of his position of trust, and disabling surveillance equipment to conceal his conduct. All stolen property was ultimately recovered.

The respondent pleaded guilty in the District Court in December 2000, though not at the earliest available opportunity. The sentencing judge, Davidson DCJ, declined to impose a custodial sentence and instead ordered a three-year good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999, with conditions requiring supervision by the Probation and Parole Service and attendance at gambling and drug and alcohol counselling.

The Director of Public Prosecutions appealed to the Court of Criminal Appeal, contending the bond was manifestly inadequate given the seriousness of the offending.

  • Whether the good behaviour bond imposed by the District Court was manifestly inadequate in light of both the objective seriousness of the offending and the respondent's subjective circumstances.
  • Whether the recovery of the stolen property was a significant mitigating factor justifying the leniency of the original sentence.
  • What the appropriate sentence should be on resentencing, taking into account double jeopardy and the period the respondent had spent at liberty on the bond.

Decision

The Court of Criminal Appeal held that the good behaviour bond was manifestly inadequate. The offending involved a serious breach of trust by a person in a position of responsibility, was planned and deliberate rather than impulsive, extended over sixteen months, and involved disabling security systems. The Court found that, weighed against those objective features, the subjective circumstances, while genuine, did not justify the degree of leniency the sentencing judge had shown.

Carruthers AJ took issue with the sentencing judge's reasoning that the recovery of all stolen property was an important factor supporting the bond. The Court found this difficult to accept as a matter of logic or principle: the respondent had simply retained the property at home rather than selling it, and this did not meaningfully reduce the objective seriousness of the conduct.

The Court acknowledged that prior offence statistics from the Judicial Commission showed that approximately 38% of s 156 offenders received full-time custody, even noting that the figures overall might reflect a pattern of relative leniency. Regardless, the Court concluded that a sentence of full-time custody was unavoidable on these facts.

On resentencing, the Court applied a significant discount to reflect the double jeopardy principle (that is, the additional hardship of being sentenced twice for the same offence) and the fact that the respondent had been at liberty since the original bond was imposed. The Court also noted that a plea of guilty merited a discount of approximately fifteen per cent in accordance with established sentencing principles. A fixed term of six months' full-time custody was imposed.

Orders Made

  • The sentence imposed by Davidson DCJ on 30 March 2001 (the conditional good behaviour bond) was set aside.
  • In its place, the respondent was sentenced to full-time custody for a fixed period of 6 months, commencing 4 September 2001 and ending 3 March 2002.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a good behaviour bond for larceny by a servant involving a deliberate, planned breach of trust over an extended period and approximately $80,000 in stolen goods was manifestly inadequate.
  • Recovery of stolen property does not, as a matter of principle or logic, substantially reduce the objective seriousness of theft: the Court found its weight as a mitigating factor to be minimal where the recovery resulted merely from the offender retaining the goods rather than taking any restorative action.
  • Where a Crown appeal against sentence succeeds and the offender has been at liberty since the original inadequate sentence was imposed, the double jeopardy principle requires that the resentenced term be significantly lower than what should have been imposed at first instance.
  • A guilty plea that does not come at the earliest opportunity but nonetheless saves the cost of a trial still warrants a sentencing discount, assessed in this case at approximately fifteen per cent.
  • Sentencing courts are cautioned that imposing an inadequate sentence can create what the Court of Criminal Appeal described as "unintended cruelty," placing an offender at risk of custodial sentence at a later stage after a period of liberty.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 156 (larceny as a clerk or servant; maximum penalty 10 years imprisonment)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9 (good behaviour bonds in lieu of imprisonment)

Cases:
- R v Thomson and Haulton (2000) 49 NSWLR 383 (principles on sentencing discounts for guilty pleas)
- R v Horne [1999] NSWCCA 391 (remarks on unintended cruelty resulting from inadequate sentences, per Mason P)