DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 16 May 2012 the appellant pleaded guilty before a magistrate to one count of stealing pursuant to s 398 of the Criminal Code. The offence carries a maximum penalty of five years imprisonment but on a summary conviction there is a jurisdictional limit of three years imprisonment. The learned Magistrate imposed a sentence of 12 months imprisonment, with release on parole after serving two months. A release date of 16 July 2012 was set. He was also ordered to pay restitution of $12,000.

2. [2]
   On 21 May 2012 the appellant was granted appeal bail, so has served five days of his sentence.

Grounds

3. [3]
   The appellant stole four excavator attachment buckets and a hydraulic rock breaker. He was observed loading these items into a skip bin which was then lifted on to the back of his truck which he drove away.

4. [4]
   The matter was listed for a summary trial but on the day of trial he pleaded guilty. It was thus a late plea but nevertheless saved the Court time and some of the expenses of a trial.

5. [5]
   The primary matter for consideration on the appeal arose because the learned Magistrate found the combined value of the five items stolen was $12,000. The basis for that conclusion was that the complainant company incurred expenses of $18,548 replacing the items and the learned Magistrate was told by the police prosecutor that he had been informed that the attachments had a life of 10 to 15 years. As the attachments were four and a half years old the learned Magistrate ascribed the value of $12,000 being almost 65 per cent of the new cost of similar items.

6. [6]
   At the hearing the appellant’s counsel admitted only that the items were worth approximately $5,000.

7. [7]
   Leaving aside for the moment the question of whether the learned Magistrate’s estimation of value, and hence the restitution order, was justified, I shall first turn to a legal argument that arose. In passing sentence the learned Magistrate specifically said that a wholly suspended sentence was not appropriate “given the loss occasioned to the complainant and the manner in which you carried out this offence”.

8. [8]
   The appellant’s counsel points out, as is the case, that he was charged only with stealing simplicita and not with the circumstance of aggravation that the goods stolen exceeded $5,000 in value. Such an offence of course carries a significantly increased maximum penalty. In R v Tommekand [1996] 1 Qd R 564 the appellant had pleaded guilty to stealing a boat and trailer. Their value, approximately $60,000, was not included in the charge as an aggravating circumstance. The Magistrate expressly declared that he took into account the value of the stolen property in determining the appropriate sentence. Macrossan CJ and McPherson JA said, in their joint judgment, at p 568 ff:

“... [I]f an offence simply of stealing is charged and a circumstance of aggravation arising by virtue of the fact that the thing stolen exceeds $5,000 in value is not included in the charge, the maximum term which can be imposed is three years. In imposing a penalty in such cases, being one which must first exceed that maximum, the court is not entitled to take into account a circumstance of aggravation which is not charged and which the plea of guilty thus does not admit: see De Simoni (1981) 147 CLR 383; 5 A Crim R 329 and Boney; Ex parte A-G [1986] 1 Qd R 190.

If the thing stolen is a boat and the Magistrate dealing with the matter is informed that its value is $60,000 he would not be able to take that value into consideration in imposing sentence when that circumstance of aggravation is not charged.

No doubt, it will often not be possible to resolve questions of value in any exact fashion and prosecuting authorities may find it necessary to make a decision whether to allege a circumstance of aggravation based on value or whether to charge more simply, as stealing. In the present case no aggravation on account of value of the stolen object was charged and therefore the magistrate in imposing sentence was not entitled to take into account a value exceeding $5,000. However, although the value was not charged after the plea to the charge was taken the prosecutor informed the Court that the boat’s value was approximately $60,000. The magistrate in imposing the sentence expressly declared that he took into account ‘the value of the property’ and ‘the serious nature of the offence’. The penalty he imposed, namely, a term of imprisonment for 12 months partially suspended, did not exceed the term which can be imposed for simple cases of stealing but the inference is strong that the Magistrate took into account a circumstance of aggravation which was not charged, namely a value well in excess of the limit of $5,000 mentioned in s 398(ix).”

9. [9]
   McKenzie J in the same case said:

“I also agreed that the emphasis in the Magistrate’s decision upon ‘the value of the property’ and ‘the serious nature of the offence’ suggests that he took into account a matter which should have been charged as a circumstance of aggravation if it was to be taken into account as a significant factor in sentencing the offender: (De Simoni (1981) 147 CLR 383; 5 A Crim 329).

10. [10]
    In written submissions, counsel for the respondent sought to distinguish that case on the basis of what the Court of Appeal decided in the decision of R v Ruddell [2005] QCA 346. It was submitted that it was there found that the prosecution was not required to allege the circumstance of aggravation that the value of property exceeded $5,000 where no single amount taken exceeded $5,000, and that the total value could be relied upon in imposing sentence.

11. [11]
    R v Ruddell (supra) involved the series of separate instances of stealing money aggregated into one count. No single amount stolen exceeded $5,000 although the sentencing Judge determined that the total sum was in the range of at least $15,000 to $20,000.

12. [12]
    Section 564(2) of the Criminal Code provides:

“(2)If any circumstance of aggravation is intended to be relied upon, it must be charged in the indictment.”

13. [13]
    In holding that the indictment did not need to express, as a circumstance of aggravation, that the total value of some 1,260 individual occasions of theft was a total of $28,238.30, in order for the Judge to take into account the whole value of the money taken, McPherson JA, with whom Cullinane and Jones JJ agreed, expressly said that the case “is not like R v Tommekand.”

14. [14]
    In this matter the difficulty for the Crown is that there were only five items stolen. It is possible each item may have been worth less than $5,000, so as to bring the case within the principles set out in R v Ruddell, but it is also possible that, for example, the four bucket attachments might have relatively little value and hydraulic rock breaker a considerably greater value, possibly well in excess of $5,000. Because of that possibility it seems to me it was not legally possible, in the circumstance of this case, for the learned Magistrate to have taken into account the fact that the goods taken may have exceeded $5,000 in value in passing sentence.

15. [15]
    In my view it is clear from the learned Magistrate’s decision that the Magistrate was much influenced in concluding that a wholly suspended sentence was not appropriate, by the fact that of the value of the items stolen exceeded $5000. The parties agreed that if I so concluded it was appropriate that a wholly suspended term of 12 months imprisonment should have been imposed. In circumstances where the appellant is a 45 year old man with a very minor and dated criminal history who conducts his own business which could collapse if he were jailed I accept this is so.

16. [16]
    In the circumstances I will allow the appeal and in lieu of the original sentence impose one of 12 months imprisonment wholly suspended with an operational period of two years. I indicated to the parties on the hearing of this matter that this was my view and made an order to that effect on that day.

17. [17]
    A further matter on the appeal however concerned the issue of compensation. The parties advised me that they thought that the matter may be able to resolve and the matter was stood down to allow discussions to occur. Despite that initial optimism it seems that agreement has not been reached. There seemed some confusion about notification of that inability to resolve the matter and as a consequence I was not aware for some time that I was required to resolve the matter.

18. [18]
    In the circumstances, it is now necessary for me to determine whether or not the Magistrate was entitled to order the appellant pay compensation in the sum of $12,000 in circumstances where the appellant was not charged with the circumstance of aggravation of stealing in excess of $5,000.

19. [19]
    As I have said, I think the matter must be approached on the basis that it is certainly possible that, for example, the buckets are of relatively little value but the other item stolen, the hydraulic rock breaker, may itself have been worth perhaps well in excess of $5,000. The parties informed me that they have been unable to find any case which has directly considered this point.

20. [20]
    Counsel for the applicant submitted that s 4 of the Penalties and Sentences Act (“The Act|”) defines “penalty” as including compensation. He further submitted that s 35 of that Act empowered the court to decide compensation from loss of property “in relation to which the offence was committed”. He submitted that the “offence” in this case was limited to stealing simplicita. He also submitted that because this related to construction of a criminal statute, a narrow reading of the provisions was required (see Beckwith v R (1976) 135 CLR 569).

21. [21]
    By contrast, the respondent’s counsel submitted that the circumstance of aggravation that the property exceeded $5000 was a separate consideration for the issue of compensation. She submitted that s 35 (2) of the Act provides that an order for compensation may be made “in addition to any other sentence to which the offender is liable” and points out that there is no statutory limitation as to amount in Division 4 of the Act. She also submitted that s 35 empowers a court to order the offender pay compensation “for any loss” and that this must mean the actual loss, and not an artificially low figure capped to $5000 in cases where the circumstance of aggravation was not alleged.

22. [22]
    She further submitted that the section should be given a wide interpretation consistent with the view taken in R v Ferrari (1997) QCA 73. That case, however, held only that the words “in the course of” or “in connection with” were capable of a wide meaning. In my view this is a comment that such words are, in their ordinary usage, words of wide import. (as to this is a civil matter, see similar comments of the High Court in Technical Products Pty Ltd v State Government Insurance Office (QLD) (1988) 167 CLR 45 at 42 in relation to the term “in respect of”)

23. [23]
    In my view it is important to note, consistent with the passage in the judgment of Macrossan CJ and McPherson JA in R v Tommekand (supra) earlier set out, that:

1. the Magistrate is not entitled to take into account the fact that the items then may be worth over $5000 when imposing sentence.
2. the plea of guilty did not admit the taking of items worth over $5000.

24. [24]
    Furthermore it is clear that the sentence imposed includes any order for payment of compensation. Section 4 of the Act defines “sentence” as follows:

“Sentence means any penalty or imprisonment ordered to be paid or served, or any other order made by a court after an offender is convicted, whether or not conviction is recorded”

“Penalty” is defined in the same section of the Act in these terms:

“Penalty includes any compensation, restitution or other amount of money but does not include an offender levy”

25. [25]
    In my view, their Honours used “sentence” in that sense in the passage I have set out from R v Tommekand. In imposing sentence their Honours said the Magistrate “would not be able to take (any value in excess of $5000) into consideration”

26. [26]
    In the circumstances I find that it is lawful only to require the appellant to pay compensation of $5000.

27. [27]
    The orders I make are therefore:

1. Appeal allowed.
2. The appellant be imprisoned for a period of 12 months, wholly suspended, with an operational period of 2 years.
3. Order that the appellant within 1 month pay to the Registrar the sum of $5000, such sum to be paid by the Registrar to the complainant, Service Stream Communications Pty Ltd at an address to be provided by the DPP as compensation for its loss of four excavation buckets and one hydraulic rock breaker. In default of such payment, the matter is referred to SPER.