New South Wales Court of Criminal Appeal CITATION : REGINA v. LAWSON [2000] NSWCCA 221 FILE NUMBER(S) : CCA No. 60080/2000 HEARING DATE(S) : Wednesday 14 June 2000 JUDGMENT DATE : 14 June 2000 PARTIES : REGINA v. LAWSON, Brett Alan JUDGMENT OF : Giles JA at 19; Dunford J at 20; Greg James J at 1 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/2524 LOWER COURT JUDICIAL Bellear, DCJ. OFFICER : COUNSEL : Crown: M. Grogan Respondent: C.B. Craigie SOLICITORS : Crown: S.E. O'Connor Respondent: T.A. Murphy CATCHWORDS : Criminal law - Crown appeal - parity - restitution - discretion to dismiss LEGISLATION CITED : Criminal Appeal Act 1912 Postiglione v. The Queen (1995-96) 189 CLR 295 CASES CITED: Regina v. Hodges (1997) 95 A. Crim. R. 85 The Queen v. Phelan (1993) 66 A. Crim. R. 446 Regina v. Allpass (1994) 73 A. Crim. R. 561 DECISION : Appeal dismissed IN THE COURT OF CRIMINAL APPEAL No. 60080 of 2000 CORAM: GILES, JA. DUNFORD, J. GREG JAMES, J. WEDNESDAY 14 JUNE 2000 REGINA v. BRETT ALAN LAWSON JUDGMENT 1 GREG JAMES, J: This is an appeal pursuant to s.5D of the Criminal Appeal Act (1912) by the Director of Public Prosecutions in respect of a sentence pronounced by his Honour Judge Bellear in the District Court of New South Wales on the respondent on a charge of larceny as a servant, to which charge he pleaded guilty and for which he was ordered to perform 450 hours of community service, on the simple ground that said sentence is inadequate. 2 The facts of the offence were presented to his Honour as unchallenged and are set out in his judgment. 3 At the relevant time the respondent and two other persons were employees of a company trading in butcher shops in the Sydney Metropolitan Area. One of those persons worked at the Chatswood Chase Shopping Centre. As part of his duties he had access to the combination of the safe in which money from sales was kept to be banked. The other person worked at another butcher's store operated by the same employer. The respondent also worked as a butcher at that store. 4 The respondent spoke to the other persons about obtaining illegally money from the safe at Chatswood and the combination for the safe was obtained by the two other employees and passed on to the respondent. Some $24,000 was taken from the safe. At the time the employee in charge of that safe was of the view that only he and one of those two persons to whom I have referred knew the combination. The taking was concealed in a sense, in that the locking mechanism of the safe was removed. 5 The proceeds were divided between the three persons at the respondent's instigation, with his retaining 50% of the proceeds and the other two taking some $6,000 each. Later, the other two confessed their part, pleaded guilty to being accessories before the fact to a charge of break, enter and steal and to a further charge of receiving the $6,000. Each was sentenced in the District Court by Judge Williams. Each had entered into arrangements which by the time they came forward for sentence they had substantially implemented to pay compensation to their employer. 6 Judge Williams in the District Court gave to each of them the benefit of reduced sentences both for their plea and their co-operation. So much appears from the remarks on sentence of Judge Bellear in the present proceedings. Regrettably, the remarks on sentence of his Honour Judge Williams have not been provided to us on this appeal. 7 The other two employees had received from Judge Williams the benefit of a recognisance for eighteen months on the receiving count and were required to complete 200 hours of community service on the break, enter and steal matter. 8 The offences under s.112 attracted a maximum penalty of 14 years' imprisonment, while that under s.188, 10 years' imprisonment. The offence to which the respondent had pleaded guilty carried a maximum of ten years' imprisonment. 9 Judge Bellear found that the respondent was "the leader of the pack and he had instigated this whole offence". He adopted the finding in this regard of Judge Williams and also Judge Williams' finding that it was this respondent who had taken the bulk of the proceeds and who had been responsible for the division. 10 His Honour Judge Bellear referred to the evidence before him on sentence that the respondent had taken the money out of both need and some misplaced sense of grievance against his employer and expressed remorse and contrition. His Honour expressed the view that the respondent should receive credit for a plea of guilty which, albeit entered on the day of trial, appeared to have been entered on the first occasion on which the option of pleading to one count was made available to him and at a time at which the Crown might have been embarrassed in seeking to proceed with the trial. His Honour gave the utilitarian benefit of a plea which saved the cost of trial to the respondent and found contrition. 11 His Honour noted also that the respondent and the co-offenders were stated to be good workers for the company and that the respondent was voluntarily willing to make compensation to his employer and that that willingness had been accepted by the employer and an agreement for payment entered into. 12 His Honour referred to the respondent's personal circumstances in relation to the support of his wife and child; to his regret and to his necessity to have to embark on a considerable regime of sacrifice in order to be able to obtain and maintain employment such as enabled him to meet his financial commitments and also to make the compensation payments, so that apparently he walks on occasions when public transport is not available, a distance of, in the order of, 25 kilometres (expressed in the judgment as 14 kilometres either way, which figures have been corrected before us in the evidence to which I will refer) to get to and from his employment. 13 His Honour had regard to the offence as being a breach of trust and had regard to the offence as involving some degree of planning. Both matters have been urged upon us as, however, insufficiently weighted in his Honour's conclusion. 14 His Honour concluded that, particularly having regard to the sentence given to the two co-offenders, notwithstanding the benefits they received for their assistance and their early pleas of guilty, his Honour proposed not to send the respondent to prison and imposed a sentence of 450 hours of community service, which sentence was directed to commence within seven days of 18 January, the day on which his Honour passed sentence. 15 In that regard it appears to me that his Honour had regard to the principles as expressed in Postiglione v. The Queen (1995-96) 189 CLR 295 and Regina v. Hodges (1997) 95 A. Crim. R. 85. His Honour appears to have given to the plea such weight at least in the circumstances in which it was entered as to afford no just basis for the Crown to complain on a Crown appeal. The plea was entered to one of three counts; that plea was accepted in full discharge; that plea, as evidence of contrition, was amply supported by the evidence the respondent himself gave, with which it appears his Honour was impressed, and which certainly is impressive to me as evidence of contrition on my reading of it. 16 True it was that the co-accused had received less by way of proceeds and, to an extent, had a lesser role, a lesser but essential role in that it was the co-accused that supplied the safe combination. True it was that they received a discount for co-operation, but the sentence his Honour passed upon this respondent was double, or more than double, that passed upon the co-accused, albeit it was a sentence of the same nature. 17 The arrangement for restitution was such as to involve considerable sacrifice and, in my view, fell well within the principles enunciated by this court in The Queen v. Phelan (1993) 66 A. Crim. R. 446 and enunciated by Hunt, CJ. at CL. at 448. 18 Given that the co-accused's sentences are not the subject of appeal and bearing in mind that appeals by way of Crown appeals are particularly apt for the circumstance in which, cutting across time-honoured concepts of criminal administration, as they do, they are necessary to correct error of principle, given that there is a discretion in the courts, particularly where a parity question is involved, even though the court might be of the view that a sentence was inadequate (see Regina v. Allpass (1994) 73 A. Crim. R. 561 at 562-563) to dismiss the appeal, having regard to the consequences in particular of a re-sentencing of the respondent, and further having regard to the fresh evidence tendered on this appeal which shows on the question of discretion that the respondent has completed a substantial portion of the community service order and has not otherwise come under adverse notice. I am of the view that in the almost unique circumstances of this case, which should not in any way be regarded as a precedent for the imposition of community service orders in respect of substantial breaches of trust - for example, in cases of stealing from an employer - the appeal in the present matter should be dismissed. I therefore propose that the appeal be dismissed. 19 GILES, JA: I agree. 20 DUNFORD, J: I also agree. 21 GILES, JA: The order of the court will therefore be the appeal is dismissed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.