R v Murtaza [2001] NSWCCA 336

New South Wales Court of Criminal Appeal

CITATION : R v Murtaza [2001] NSWCCA 336 revised - 5/10/2001 FILE NUMBER(S) : CCA 60198/01 HEARING DATE(S) : 4/9/01 JUDGMENT DATE : 4 September 2001

PARTIES : Regina Shahbaz Murtaza JUDGMENT OF : Hodgson JA at 1, 30, 32; Dowd J at 31; Carruthers AJ at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0927 LOWER COURT JUDICIAL Davidson DCJ OFFICER :

COUNSEL : W G Dawe QC (Crown) K R Newell (Respondent) SOLICITORS : S E O'Connor F McDonald CATCHWORDS : Sentencing - Crown appeal against inadequacy of sentence - larceny by a servant - balance of subjective and objective circumstances - whether too much weight given to subjective circumstances. LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 CASES CITED: R v Thomson and Haulton (2000) 49 NSWLR 383 DECISION : Appeal allowed. Judgment of Davidson DCJ on 30.3.01 set aside. New sentence: full time custody for a fixed period of 6 months, to begin on 4.9.01 and ending 3.3.02.

- 1 -IN THE COURT OF CRIMINAL APPEAL 60198/01 HODGSON JA DOWD J CARRUTHERS AJ Tuesday 4 September 2001 Regina v Murtaza

JUDGMENT

1 HODGSON JA: I will ask Carruthers AJ to deliver the first judgment. 2 CARRUTHERS AJ: This is an appeal by the Director of Public Prosecutions against a sentence imposed by his Honour Judge Davidson QC at the Sydney District Court on 30 March 2001 when the respondent, Shahbaz Murtaza, appeared for sentence on a charge of larceny as a clerk pursuant to s 156 of the Crimes Act 1900, to which charge he had earlier pleaded guilty. 3 Pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999, instead of imposing a sentence of imprisonment, his Honour made an order directing the respondent to enter into a good behaviour bond for a period of 3 years, subject to the respondent placing himself under the supervision and guidance of the Probation and Parole Service and a further condition that he undergo gambling and drug and alcohol counselling. 4 The notice of appeal was signed by the Director on 6 April and served on the respondent on 7 April 2001. The appeal originally came before this Court on 16 and 20 July. It was adjourned on the latter day on the application of the respondent by reason of his failure to take appropriate action to obtain legal aid. He now has the benefit of legal aid and is represented by Mr Newell of counsel. 5 The respondent was arrested on 30 April 1999. He was charged with stealing from his employer contrary to s 156, an offence for which the maximum penalty is 10 years imprisonment. He was released on unconditional bail. 6 On 23 November 2000, a year and 7 months after being apprehended and charged, the respondent was committed for trial. 7 On 8 December 2000 the respondent was arraigned in the District Court. He pleaded guilty to the charge on that date. Thus, the plea was not entered at the earliest opportunity, but it did save the cost of a trial. 8 The facts may be relatively briefly stated. In April 1999 Corporate Express Limited carried on business as a computer equipment distributor. It kept $9 million worth of stock on its premises. The respondent was employed as a computer systems operator with supervisory responsibilities. This was a position of trust. However, over a period of sixteen months to April 1999 the respondent stole approximately $80,000 worth of equipment from the company. This involved the respondent making unauthorised entries to the premises out of hours and disabling a security video. He was enabled to obtain access to the premises by reason of a security card which he possessed as a consequence of the office of trust which he held in the organisation. 9 The course of conduct was not impulsive. It involved thought and planning. The motive was clearly financial gain by sale, although all the property which was the subject of the charge was recovered, including one computer which had been sold. That was the only sale, according to the facts placed before his Honour. 10 The respondent was 23 years of age at the time of the offence. He obtained the Higher School Certificate in 1993 and was employed as from July 1997 by Computer Express. His life was not going well, however. According to the Probation and Parole Service pre-sentence report, which was before the sentencing judge, the respondent's marriage was under tension due to cultural differences. According to that report, the respondent had resorted to the heavy use of alcohol and was gambling excessively. The sentencing judge said the facts and circumstances suggested that the offence was committed in order to meet gambling debts and provide for what his Honour described as "his extensive alcohol addiction". 11 The respondent had, understandably, been dismissed by his employer in April 1999. He has been employed elsewhere since August 1999, but apparently his present employer is unaware of the present criminal proceedings. By the time of the sentencing hearing the respondent and his wife were separated. The respondent was supporting his 2 children financially. 12 According to the Probation and Parole Service report, the respondent had indicated remorse and sorrow in relation to the hurt caused his family and had, shortly before the report was written, indicated a willingness to undergo counselling and programs to address his alcohol and gambling problem. 13 The sentencing judge also had before him a letter from the spiritual leader of the respondent's Moslem religious community, who said he knew the respondent well and that the respondent was ashamed of, and remorseful for, his dishonest behaviour. His Honour noted that evidence without making an affirmative finding that the respondent was in fact contrite. 14 There was no criminal history, but the criminal conduct with which the respondent was charged had, as has already been indicated, continued over a significant period of time. Little, if any, weight could be given to prior good character in mitigation in these circumstances. Of course, it is trite to comment that generally a person is in a position of trust because he or she has no prior criminal record of significance. 15 There is breach of trust involved in larceny by a servant. The course of conduct extended over a lengthy period of time and it involved planning. These are important factors in assessing the degree of criminality involved. One can add to this the interference with the surveillance system and the fact that the respondent could only perpetrate the crime because of his security card. 16 The amount stolen was not insignificant, being of the order of $80,000. 17 Mr Newell of counsel in his helpful address stressed the fact that the property had been recovered and reminded this Court of the sentencing judge's remarks in that regard. When sentencing the respondent, his Honour said: "There is, of course, no occasion for any compensation order to be made, the evidence establishing that all the property has been recovered. This, too, in my view, is an important factor in determining whether dealing with this matter by way of a bond might be regarded as appropriate."