| [1] | This appeal
against conviction and sentence has been heard on the papers under the Crimes
(Criminal Appeals) Amendment Act 2001.Despite
a number of requests and an
extended opportunity for written submissions, none have been received from the
appellant.Nor were any
grounds of appeal against his conviction contained in
his notice of appeal.Crown counsel has filed written submissions and stated
that, having read the Case, including the notes of evidence, there does not
appear to be anything in the conduct of the trial or
the nature of the evidence
which suggests any trial error. |
| [2] | The
relevant materials, including the Crown’s submissions which have been
received in accordance with r29 of the Court of Appeal
(Criminal) Rules 2001,
have been considered by the members of the Court who have conferred and agreed
upon this judgment. |
| [3] | The appellant was
charged with theft of a pair of jeans, valued at $190, from Hurricane Jeans in
Wellington.After being found guilty
at trial he was sentenced to four months
periodic detention and ordered to make reparation of
$190. |
| [4] | The evidence against the appellant
was that he was noticed by a shop assistant after he came out of a cubicle in
the shop where he
had been trying on clothing.A security tag, which appeared
to have been removed from an item of clothing, dropped to the floor.She
noticed there was some denim caught in it and suspected that he had removed it
from an item of clothing.She reported the matter to
the shop manager.By that
time the appellant had left the shop, but the manager chased after him and
brought him back to the shop.The
police were summoned.Before they arrived
the appellant went into a cubicle.The shop assistant had previously noted that
the cubicle
next door to it was empty.When the police arrived and the
appellant emerged from the cubicle, the shop assistant noticed that in
the
adjoining cubicle there was now a pair of jeans on the floor.They had a hole
in the back seam where Hurricane Jeans usually puts
the security tag.The tag
was missing. |
| [5] | The Crown case, which the jury
obviously accepted, was that before the appellant was first seen coming out of a
cubicle, before he
left the shop, he had removed the security tag from the jeans
and put them on under the clothing he had been wearing; and when he
was brought
back to the shop and had gone into a cubicle for the second time, he had removed
the jeans and put them in the next door
cubicle. |
| [6] | The appellant did not give
evidence in his own defence. |
| [7] | Like Crown
counsel, we are unable to find anything in the materials suggesting that it was
not open to the jury to find the appellant
guilty of the theft of the jeans, nor
does it appear that there is any other ground for setting aside the guilty
verdict. |
| [8] | The maximum penalty for theft of
goods of this value is one years imprisonment: s227(c) of the Crimes Act 1961.In her sentencing notes
the Judge observed that the appellant had previous
convictions, including one (in 1999) for obtaining credit by false pretences,
for which he had received a sentence of three months periodic detention.The
Judge said that on the basis of the value of the items
stolen there would not
normally be warranted a sentence of periodic detention.On the other hand, she
said, there were previous convictions
and the fact that the State had been put
to the expense of a jury trial.As Crown counsel says, the latter remark was
unfortunate
since it was the appellant’s right to put the Crown to proof,
although having done so and failed he could not expect any reduction
for a plea
of guilty. |
| [9] | We are, however, satisfied that
for someone found guilty at trial and already having a previous conviction for
dishonesty the sentence
was a proper one in the circumstances, including the
order to pay reparation. |
| [10] | The appeal
against conviction and sentence is therefore dismissed.The appellant is
ordered to recommence the sentence of periodic
detention, reporting to the
Porirua Work Centre on 16 August 2003 and thereafter as
directed. |
