R v Wilkinson[1999] QCA 90

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

CA No 447 of 1998

Brisbane

[R v Wilkinson]

THE QUEEN

v

KIRSTY RENAE WILKINSON

(Applicant) Appellant

McMurdo P

Thomas JA

Wilson J

Judgment delivered  26 March 1999

Separate reasons for judgment of each member of the Court, concurring as to the orders made.

SUBJECT TO THE REGISTRAR RECEIVING WITHIN 14 DAYS THE WRITTEN AGREEMENT OF THE APPLICANT (OR HER SOLICITOR OR COUNSEL ON HER BEHALF) TO THE MAKING OF ORDER 2 BELOW AND TO HER AGREEING TO COMPLY THEREWITH:

1. THE APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE IS GRANTED AND THE APPEAL IS ALLOWED.

2. THE SENTENCE BELOW IS SET ASIDE AND REPLACED WITH AN ORDER THAT THE APPLICANT PERFORM 120 HOURS OF UNPAID COMMUNITY SERVICE ON THE TERMS AND CONDITIONS SET OUT IN S 103(1) OF THE PENALTIES AND SENTENCES ACT 1992, TOGETHER WITH A SPECIAL CONDITION THAT THE APPLICANT PAY COMPENSATION IN THE SUM OF $1000 TO THE REGISTRAR OF THE DISTRICT COURT AT BRISBANE IN SUCH AMOUNTS AND AT SUCH TIMES AS DIRECTED BY AN AUTHORISED COMMISSION OFFICER WITHIN THREE MONTHS OF TODAY'S DATE FOR AND ON BEHALF OF THANH NGOC NGUYEN, CARE OF NGOC THANH JEWELLERS, 175 WICKHAM STREET, FORTITUDE VALLEY.

3. NO CONVICTION IS RECORDED.

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – PROPERTY OFFENCES – MATTERS RELATING TO PROOF – Application for leave to appeal against sentence – fraud with circumstance of aggravation – misappropriation of ring – whether sentence manifestly excessive – whether conviction should be recorded- whether judge should have been satisfied beyond reasonable doubt before applying contested facts where would be adverse to accused – whether principle of R v Morrison applied – whether evidence should have been called – whether circumstances which established a more serious offence than that charged should be taken into account

Criminal Code s 408C(1)(a)(i) and (2)(d)

Penalties and Sentences Act 1992 s 12(2)

R v Morrison (CA 391 of 1997; 26 June 1998)

Anderson v R (1993) 177 CLR 520

R v Olbrich [1998] NSW SC 278

R v D [1996] 1 QdR 363

R v Briese, ex parte Attorney-General [1998] 1 QdR 487

R v De Simoni (1981) 147 CLR 383

Counsel: Mr D Kent for the appellant

Mrs L Clare for the respondent

Solicitors: O'Reilly & Lillicrap for the appellant.

Director of Public Prosecutions (Queensland) for the respondent.

Hearing Date: 26 February 1999

REASONS FOR JUDGMENT - McMURDO P

Judgment delivered 26 March 1999

1. This case highlights the increased difficulties for sentencing judges where there is a dispute as to the facts at sentence.  Since R v Morrison,^[1] where the Crown seeks to prove an issue that would be likely to result in a heavier sentence and that issue is disputed by the defence, the issue must be proved beyond reasonable doubt. 

2. I will not repeat the facts of this case which have been clearly stated in the reasons of Thomas JA and Wilson J.

3. Although the prosecutor encouraged the learned sentencing judge to accept a version of the facts which was consistent with the discontinued offence of stealing as a servant rather than the offence of fraud with a circumstance of aggravation to which the applicant had pleaded guilty, the prosecutor conceded that "at the end of the day it may not make a great deal of difference, clearly whatever the true situation is she's engaged in a significant act of dishonesty where it's very lucky indeed that the ring has been - in fact been recovered."

4. Defence counsel submitted that the applicant had found the ring on a beach in late 1996 or early 1997 and subsequently pawned it but added, "The ultimate position before you, however, is that she has sold the ring which she knew did not belong to her.  On any version she had it in her possession when she should not have done so, and she pretended that it did belong to her in the course of obtaining $1000 for herself."

5. In an exchange between defence counsel and the sentencing judge as to whether a conviction should be recorded, defence counsel submitted that the applicant had "no idea what the actual value of that ring was worth ...".  The learned sentencing judge responded: "... I have difficulty accepting those instructions."

6. In reply, the prosecutor made further submissions that the ring had been for sale at $8000 for at least 12 months in the pawn shop where the applicant worked.  As the applicant purchased pawned property in the course of her employment, she must have known the ring was valued at between $8000-$10000.  Consequently, he submitted, this placed her at serious risk of actual, rather than suspended imprisonment.  He further submitted that persisting with her unlikely version demonstrated no remorse and even on that version she was guilty of the offence of fraud with a circumstance of aggravation.  As a result, he submitted, a conviction should be recorded and the maximum period of community service, a suspended sentence or an intensive correctional order should be imposed.

7. In his sentencing reasons, his Honour noted that the applicant told police "what appears to me to be a fabrication to the effect that you found it on a beach 12 months ago." His Honour was not entitled to conclude that the applicant's version was a fabrication if he intended to impose a heavier sentence on the basis of the Crown submissions without giving the parties the opportunity of calling evidence on that issue.

8. His Honour made no finding as to whether the applicant was aware of the true value of the ring.  Had he concluded this issue of fact was one which, if proved, would be likely to result in a heavier sentence, he should, in my view, have given the parties the opportunity to call evidence on the point.

9. The sentence imposed of 240 hours community service with a conviction recorded in circumstances where the applicant had no prior criminal history, an excellent work and community record, family support and good rehabilitative prospects, suggests his Honour must have sentenced the applicant on the facts as put forward by the Crown, rather than on the applicant's version, at least as to the former of the two disputed issues of fact.

10. In any case, as Thomas JA has pointed out, and was conceded by counsel below, the contested issues were largely irrelevant because the charge to which the applicant had pleaded guilty was fraud with a circumstance of aggravation rather than stealing as a servant: see R v D.^[2]  His Honour's approach was in error.  This Court can consequently sentence the applicant for the offence of fraud with a circumstance of aggravation without determining the disputed areas of fact.  On her plea of guilty, the applicant dishonestly applied property worth over $5000 to her own use and received $1000 in return.  I agree with Thomas JA and Wilson J as to the proposed sentence and orders.

REASONS FOR JUDGMENT - THOMAS JA

Judgment delivered 26 March 1999

1. The applicant was originally indicted on a charge of stealing as a servant.  On the eve of trial, after discussions between the Crown and the defence, the Crown elected not to proceed with that indictment, and the applicant pleaded guilty to a charge of misappropriation under s 408C of the Code.  The essentials of the charge were that she applied to her own use a ring the property of Monty's Pawnbrokers with a value upwards of $5,000.00.

2. The learned sentencing judge recorded a conviction, ordered the applicant to perform 240 hours community service, and ordered restitution of $1,000.00.  (Reasons for fixing restitution in that sum will appear later).

3. The only ground of appeal is "the sentence is in the circumstances manifestly excessive in that a conviction should not have been recorded".

4. The parties were obviously at odds as to the facts upon which she should be sentenced.  In his statement from the bar table the Crown prosecutor stated that the owner (Monty's) had displayed the ring in its pawn shop from March 1996 with a price tag of $8,000.00.  The applicant was employed by Monty's for about two years from mid 1995.  According to the Crown prosecutor the ring was "noticed missing sometime ... about mid 1997 at a time when Ms Wilkinson either was employed or had recently been employed at the store" (my italics).

5. The main fact upon which both parties agreed was that the applicant had sold the ring to a jeweller in January 1998 for $1,000.00, knowing that the ring was not hers.  Her account however, given to the police who interviewed her, and also given by her counsel to the Court, was that she had found the ring in a sachet of jewellery on a beach at Maroochydore in late 1996 or early 1997.  She admitted that she had made no effort to contact police or to find the rightful owner and that she had eventually sold the ring to the jeweller in January 1998.  She identified herself to the jeweller by means of her driving licence (from which detail she was eventually traced) and told the jeweller that she had bought the ring at a garage sale.

6. During the sentencing procedure however the Crown prosecutor adhered to the position that so far as the Crown was concerned the applicant had taken the ring from her employer's shop, had kept it for a time and then sold it.  The learned sentencing judge thereupon commented that that scenario seemed inevitable on the facts.  This was said to follow from the fact that the ring was only noticed to be missing in about the middle of 1997.  That however was not necessarily inconsistent with the applicant's version that she had found it in late 1996 or early 1997, as the possibility remained that it had been stolen by a third party and found by the applicant prior to the time when it was missed by the employer.  Although the defence instructions may seem unlikely, they were not so inherently implausible that they could be summarily rejected.  Evidence should have been called so that the matter could be resolved. 

7. If the issue was "adverse to an offender in the sense that, if proved, it would be likely to result in a heavier sentence" the majority judgment in R v Morrison^[3] required that such fact be proved beyond reasonable doubt.  This did not happen.  Defence counsel indicated that his instructions remained the same as the information supplied to the police.  He asserted (correctly in my view) that the ultimate position was that the applicant sold a ring which she knew did not belong to her and thereby obtained $1,000.00 for herself.

8. A further difference of opinion arose in relation to the question whether the applicant was aware of the value of the ring.  Her counsel conceded that "it was a very expensive ring obviously" but that she had had "no idea what the actual value of that ring was worth".  The learned sentencing judge indicated that he had difficulty in accepting that statement.  Subsequently the Crown prosecutor stated that the Crown's position was that she must have known that the ring was valued at somewhere near $8,000.00 to $10,000.00.  He also stated (and this was not controverted) that one of the applicant's jobs at Monty's had been the purchase of property on the pawning side of the business.  On this particular issue it seems to me that the learned sentencing judge was entitled to reject the defence assertion that she had no idea of the value of the ring, and to conclude that she must at least have known that the ring was of significant value.  The matter was not further adverted to, and no material error occurred in this aspect of the case.  It was not necessary for evidence to be called in order to resolve that particular issue.

9. The applicant was 23 years old and she had no previous convictions.  She had a supportive family and had experience in working at a beauty salon, with an ambition to travel to the United States to work further in this field, hopefully in the movie industry.  She possessed exceptional talents including ability as a singer and was an outstanding athlete, having represented her state (New South Wales) in athletics, and being proficient in hockey, water polo and squash.  The Crown agreed that a custodial sentence would be inappropriate.

10. Two errors occurred in this particular sentencing exercise.  In the first place the learned sentencing judge obviously rejected the applicant's version concerning the manner in which she originally came into possession of the ring, and seemingly accepted the Crown view that she had taken it from her employer.  It was erroneous to take this view without first giving the parties the opportunity of calling evidence upon what was plainly a disputed issue.  The second and perhaps more significant error lay in treating such an issue as relevant at all.  The Crown had abandoned its original charge of stealing as a servant and had accepted a plea of guilty to dishonest appropriation.  It was therefore not open to the Crown to prove that she had stolen the ring from her employer as a circumstance of aggravation, or as a factor that cast the applicant's conduct in a more sinister light.  To do so was directly contrary to the principles of R v D.^[4]  There will be cases under s 408C where it will be appropriate to prove the  circumstances in which the offender came into possession of the property in question (for example if it shows a context which casts light upon the subsequent misappropriation of the property).  But in a case like the present, the necessary consequence of the Crown allegation was that she had stolen as a servant.  Such an allegation would prove a separate offence and it is forbidden for such a matter to be taken into account (R v D above).  It would also reveal a more serious offence than the one with which the applicant was charged.

11. The present case exposes some of the extreme difficulties that are inherent in application of the majority decision in R v Morrison (above).  If the defence assertion of the original innocent finding of the sachet of jewellery on the beach were to be regarded as a factual issue which "if proved would favour the accused in the sense that it would be likely to result in a less heavy sentence" then the onus lay on the defence to satisfy his Honour to that effect on the balance of probability.  If this came to a contest, the best way for the Crown to persuade his Honour not to accept the defence assertion was to prove that she took the ring from her employer, or at least that she probably did so.  The net result would then be that his Honour would reject the defence version, but having done so it would be necessary for his Honour to put out of his mind the inference advanced by the prosecution which had led him to reject the defence version.  With some hesitation I have concluded that in this particular case the issue of how the applicant originally obtained possession of the ring was irrelevant.  The defence assertion of finding the sachet was really an attempted rebuttal of the inappropriate allegation by the Crown that she had taken it from her employer.  In this particular case the court should have started with the proposition that the applicant came into possession of the ring in circumstances from which neither credit or discredit should be inferred.  In the end, I cannot see that any different sentence would result according to whether the court commenced with the neutral starting point I have suggested, or acted upon the version that the applicant gave to the police.  The criminal act for which she had to be sentenced was the applicant's sale of a ring (which she knew to be quite valuable, and which she knew was not hers to sell) to a jeweller for $1,000.00.

12. In my opinion error has been disclosed in this sentencing process.  It is not necessary that the matter be sent back for re-trial.  On the matters that are relevantly open for consideration, this court can impose an appropriate penalty.  Having regard to the applicant's age and character and the possible impact of recording a conviction upon her future, and the fact that this is her first offence, a sentence should be fashioned if possible which does not require a conviction to be recorded.^[5]  The ring has been recovered and returned to its rightful owner, but it is appropriate that a restitution order be made in relation to the $1,000.00 obtained from the jeweller.  Accordingly she should be ordered to pay compensation in that sum.  Further, as conceded below, a community service order is appropriate.  The applicant is employed, and the court was informed that she works six days per week.  In these circumstances a community service order of 120 hours would be appropriate.

Orders

13. Subject to the Registrar receiving within 14 days the written agreement of the applicant (or her solicitor or counsel on her behalf) to the making of order (b) below and to her agreeing to comply therewith:

1. The application for leave to appeal against sentence is granted and the appeal is allowed.

2. The sentence below is set aside and replaced with an order that the applicant perform 120 hours of unpaid community service on the terms and conditions set out in s 103(1) of the Penalties and Sentences Act 1992, together with a special condition that the applicant pay compensation in the sum of $1000 to the Registrar of the District Court at Brisbane in such amounts and at such times as directed by an authorised Commission officer within three months of today's date for and on behalf of Thanh Ngoc Nguyen, care of Ngoc Thanh Jewellers, 175 Wickham Street, Fortitude Valley.

3. No conviction is recorded.

REASONS FOR JUDGMENT - WILSON J

Judgment delivered 26 March 1999

1. This is an application for leave to appeal against a sentence imposed on 4 November 1998 in the District Court at Brisbane.

2. The applicant pleaded guilty to a charge of dishonestly applying to her own use a ruby and diamond yellow gold ring the property of NSW Mont de Piete Pty Ltd trading as Monty’s Pawnbrokers of a value of $5,000 or more. (Criminal Code s 408C(1)(a)(i) and (2)(d).)

3. The maximum penalty for such an offence is ten years imprisonment.

4. The sentencing Judge ordered that a conviction be recorded, that the applicant perform 240 hours community service, and that she pay $1,000 compensation.

5. She had originally been charged with stealing as a servant (Criminal Code s 398), for which offence the maximum penalty is also ten years imprisonment. The Crown chose not to proceed with that charge.

6. In her application for leave to appeal the applicant gave only one ground - that the sentence was manifestly excessive in that a conviction should not have been recorded. During the hearing of the application for leave, another ground emerged - that the sentencing Judge had erred in acting on facts adverse to the applicant of which he was not apparently satisfied beyond reasonable doubt, contrary to the principle in R v Morrison (CA 391 of 1997; 26 June 1998). 

7. No evidence was called on the sentence application. The sentencing Judge acted on statements from the Bar table, a course which is unexceptional in sentence proceedings in this State when no significant facts are in dispute.

8. The applicant was born on 26 May 1975. She was aged 22 when she committed the offence. She had no prior criminal history.

9. The applicant was employed by Monty’s Pawnbrokers between about mid 1995 and mid 1997. One of her jobs was the purchase of goods from customers.

10. Her employer had the ring displayed for sale from about March 1996, with a price tag of $8,000. The prosecutor told the Court:-

“They didn’t have much luck getting a purchaser for it. It was noticed missing some time, it is believed, about mid 1997 at a time when [the applicant] either was employed, or had recently been employed at the store.”

11. On 11 January 1998 the applicant sold the ring to a jeweller over the road from her former employer for $1,000.  She told him she had bought it at a garage sale, a version which she later told police was “a little white lie.”

12. The applicant gave the police a different version, one which she continued to maintain at the sentence, ie that in late 1996 or possibly early 1997 she had found the ring in a sachet of jewellery which she had stumbled across on a beach in the Maroochydore area. She said that she had kept the jewellery she had found for a while, and then disposed of it from time to time.  She was in pretty desperate financial straits when she sold the ring to the jeweller for $1,000.  Her counsel told the sentencing Judge that she had no idea of the actual value of the ring.

13. The jeweller displayed the ring for sale at $10,500 or thereabouts. According to the prosecutor there were two certified valuations - one at $18,200 and the other at $10,500.

14. Thus there was a conflict between the Crown and the applicant as to the facts. The sentencing Judge rejected the applicant’s version that she had found the ring on the beach. In his sentencing remarks he said:-

“Kirsty Renae Wilkinson, you have pleaded guilty this morning to one count of fraud with a circumstance of aggravation. The circumstances of that fraud as I find them are these. You were employed for the complainant company for some two years. During the course of that employment a ring valued, it would seem, between 10 and a half and $18,000 dollars went missing. That ring, on the plea of guilty this morning, was sold by you, some six months after it went missing, to a jeweller across the road from where you had been employed, for the sum of $1,000.

When interviewed by police you told police that it was indeed you who sold it but you told them what appears to me to be a fabrication to the effect that you found it on a beach 12 months ago. When, at that time, this ring, which has been identified, was in the shop in which you were employed. It cannot be said that that story or indeed the one you told the jeweller initially was ‘a little white lie’.

Your plea of guilty this morning comes on the day of trial. It is true and I accept that it is to a different count than that which was previously preferred against you but your plea this morning acknowledges your dishonesty and, in any event, I would have thought a conviction was inevitable on the facts here.  I can do little else but find that whilst you have some remorse that remorse is not of a great nature and you must be dealt with in that light.

Your background is in your favour. It is a shame to see someone with your potential, your family support, your abilities as an athlete, a singer, someone who has represented New South Wales in different sports to find themselves before a criminal Court being sentenced for what is a serious offence of dishonesty. I have to sentence you on the basis of the count which is before me, but that count involves you obtaining $1,000 for property which you knew was not yours.”

15. The sentencing judge recognised that it was the misappropriation charge on which he had to sentence the applicant. While he did not say expressly what use he was making of the circumstances of the fraud as he found them, the severity of the sentence he imposed is consistent with his accepting that she had stolen the ring from her employer and treating that as a circumstance of aggravation.

16. In doing so the sentencing judge erred. Stealing from her employer was not the offence to which she had pleaded guilty. The judge’s obligation to take account of all the circumstances of the offence was subject to the fundamental principle that the applicant should not be punished for an offence of which she had not been convicted: R v De Simoni (1981) 147 CLR 383 at 389-90 per Gibbs CJ with whom Mason and Murphy JJ agreed. In R v D [1996] 1 Qd R 363 at 403 this Court held that an act, omission, matter or circumstance which it would be permissible otherwise to take into account may not be taken into account if the circumstances would then establish a separate offence which consisted of, or included, conduct which did not form part of the offence of which the person to be sentenced has been convicted or a more serious offence than that of which he or she has been convicted.

17. Moreover, insofar as the Crown sought to establish the objective seriousness of the offence relying on matters beyond those implicit in the plea of guilty, it was required to prove the relevant matters beyond reasonable doubt: R v Morrison.

18. Counsel for the Crown submitted that its position was based on circumstantial evidence from which a conclusion could be drawn beyond reasonable doubt. She submitted that Morrison does not require the Crown to go into evidence where its position is one based on circumstantial evidence and that circumstantial evidence is not contested by the defence.  She adverted to the fact that during argument the Judge had made his thinking clear, but the applicant’s counsel had not sought to go into evidence. She submitted that the Crown is not required to go into evidence to rebut a completely fanciful account.

19. However, this is not a case where there were uncontested facts from which the Judge could have been satisfied of the Crown’s version beyond reasonable doubt.

1. It was not contested that the ring was worth $5,000 or more: this was implicit in the plea of guilty.

2. It was not established when it went missing. The Crown’s rather flimsy assertion was that it was “noticed missing some time, it is believed, about mid 1997.” However, it was inherent in the applicant’s version that she had found it in late 1996 or early 1997 that it had gone missing before then.

3. There was no admission that she knew it was her employer’s property. Given her version that she had found it on the beach at a date six months before the employer’s ring was noticed missing, it was not possible to draw the inference that she knew it was the same ring.

4. The Crown submitted that she must have known the value of the ring given that she had worked at the shop for twelve months while it was on display for sale at $8,000 and that her functions included the purchase of property from customers. However, given the time when she said she found the ring and the time when the Crown said it was noticed missing, it was not open to the Judge to draw the inference that she must have identified it as her employer’s property or known of its value.

20. The Crown was not obliged to prove matters going to the objective seriousness of the offence, and it did not attempt to do so. Even if the applicant’s version could be regarded as a circumstance of mitigation in the sense that it would be likely to result in a less severe penalty, by not calling evidence she took no step towards discharging her onus of establishing that circumstance on the balance of probabilities: Morrison.

21. In the circumstances, the sentencing judge was obliged to impose a sentence which took account neither of the Crown’s version nor of the applicant’s version. In other words the applicant was entitled to be sentenced on the basis of the bald facts implicit in the plea of guilty, shorn of the Crown’s assertions as to the circumstances of the fraud.

22. Leave to appeal against the sentence should be granted, and the sentence should be set aside. I agree with Thomas JA that this Court should impose an appropriate penalty, and as to what is an appropriate penalty.