Bakes v Alexander (No 3)

[2024] ACTMC 2

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Bakes v Alexander (No 3)

Citation: 

[2024] ACTMC 2

Hearing Date: 

26 February 2023

Decision Date: 

1 March 2024

Before:

Magistrate Theakston

Decision: 

See [30]

Catchwords:

CRIMINAL LAW – Sentencing – Theft from voluntary not-for-profit club – Suspended sentence with community service

Legislation Cited: 

Criminal Code 2002 (ACT) s 308

Crimes (Sentencing) Act 2005 (ACT) ss 19, 34(2)

Crimes Act 1914 (Cth) s 4K(4)

Cases Cited: 

R v CA (No 2) [2016] ACTSC 371

R v Snowden [2022] ACTSC 186

Parties: 

Nathan Bakes (Informant)

Aaron Alexander (Defendant)

Representation: 

Counsel

M Dyason (Informant)

E Chen (Offender)

Solicitors

ACT Director of Public Prosecutions (Informant)

Legal Aid ACT (Offender)

File Numbers:

See schedule

MAGISTRATE THEAKSTON:

Introduction

1․This is the third judgment in this matter.  The offender is now before the court for sentencing in relation to 48 separate charges.  I found the offender guilty of those offences (and others) and those findings were upheld on appeal to the Supreme Court and then the Court of Appeal.  (The offender was successful with respect to his appeal against my findings of guilt for other charges.)  The charges for sentence are described in some detail in the attached schedule.

The offences

2․Each charge relates to theft contrary to s 308 of the Criminal Code 2002 (ACT). The maximum penalty for each offence is 10 years imprisonment and, as a magistrate, I have the power to impose penalties up to 5 year’s imprisonment for each offence. The offender committed these offences between and including September 2017 and June 2018, when he was the President of the Gungahlin United Football Club. During that time, he operated the club’s main bank account, possessed a debit card attached to a separate club account, and affected the following types of dishonest transactions:

(a)transferred $917.85 on nine occasions (totalling $8,233.65) from the club’s main account to Macquarie Leasing to service a lease on a motor vehicle;

(b)used the club’s debit card to make six payments to Telstra and ACT Road User Services, ranging from around $40 to $570 (totalling $2,088.14); and

(c)transferred funds on 33 occasions from the club’s main account to his personal and business accounts, ranging from $100 to $750 (totalling $13,225.00).

3․The total amount of the 48 transactions, across the three categories, is $23,546.79.

4․Each of those transactions were dishonest, because they were not made for club purposes, in circumstances where the club funds were to be used only for club purposes and there was no separate approval from the club’s executive authorising those transactions.  They were made over a period approaching seven and a half months.

5․The individual and combined amounts of those transactions, while no doubt significant to the club, are not particularly large or close to the largest values the courts have seen.  However, they are not insignificant either.  Most individual transactions represent values of substance well above what could be described as trivial or inconsequential.  When combined, the amounts represent values of some modest significance. 

6․Additionally, the offending occurred over an extended seven-month period and only stopped when the defendant was removed from the club and his access to the club bank accounts revoked.  Obviously the 48 transactions represented a course of conduct over that extended time, with the culpability of each transaction increasing as time went on.  This pattern of offending should be distinguished from that which involved a spontaneous or brief departure from expected standards of honesty.  Put another way, across the seven months of offending, the offender had many opportunities to reconsider and cease the conduct, but instead he continued with the same.

7․There is no motive evident for the offender’s dishonesty.  For example, there is no suggestion he engaged in the offending out of a perceived necessity due to addiction or financial difficulty.  However, the first category of transactions related to servicing a lease for a motor vehicle.  I note that the lease appears to have commenced approximately two years earlier and included a period of 12 month immediately prior to the first dishonest lease payment, where the payments were not made regularly, that is not consistently at the same time of each calendar month, and for some months not at all.  That is in contrast to the dishonest payments that were made at almost the same time each month across the seven-month period, with an additional payment in the first month.  That pattern suggests the accused may have had difficulties at that time making those repayments.

8․Other than those very regular lease payments, there is no evidence that the transactions involved much planning.  The offender was responsible for making various legitimate payments on behalf of the club, and it remained open on the evidence that he, from time to time, spontaneously used the club funds for his own purposes.

9․Clearly this offending represents a breach of trust, in the environment of a not-for-profit organisation administered by volunteers.  The offender was placed in a position of trust to manage the organisation.  During the period when there was no separate treasurer, he was also permitted by the club’s executive to solely manage the finances of the club.  I should say something about the distinctive nature of voluntary not-for-profit organisations.  They are run by volunteers, who donate the time they have available to facilitate the running of the organisation.  Those volunteers come with the skills they already have and are not necessarily particularly qualified for their roles.  They work together the best they can, noting that at any time any one of them may walk away and the incentive for them to stay is not financial, but altruistic in nature.  There is no authority to require a volunteer to do anything, and arrangements are designed and actioned with heavy reliance on good will, cooperation and trust.  These organisations often do not have robust management systems, and even if they did, they would only be as effective as the volunteers are willing to adhered to them.  This makes such organisation very vulnerable to exploitation.  That is, the exploitation of strong personalities inserting themselves into positions of influence, and individuals taking advantage of the limited accountability demanded by the organisation.  As occurred here, a charismatic personality can engender confidence, assume an executive position within the organisation, and then exploit the same, while other executive members may not appreciate what is occurring.  Those executive members may not even appreciate the absence of oversight may amount to a risk for the organisation.

10․The significant vulnerability of this club and the offenders systematic and repeated breaches of the trust conferred upon him elevates this offending substantially.  It can be distinguished from a breach of trust by employees of a sophisticated employers, who have systems and resources to monitor staff, and where breaches of trust are therefore in circumstances of less vulnerability.

11․The club provided a victim impact statement that described the consequential difficulties suffered by the club, its executives, and its members.  They included disruptions, loss of opportunities and reputation, and additional time contributed by the members.  There also appeared to be a general sense of disenchantment due to the offender’s dishonesty and breach of their trust.

12․As the offences were found proven at hearing, there is no discount to be applied for a plea of guilty.

The offender

13․The offender is a 52-year-old US national who has resided in Australia since 1994.  Well before the offending he separated from his wife.  He has two adult children from that relationship.  At the time of the offending, he had been in a relationship with a partner for several years.  As a result of these charges, that relationship ended, as did contact with his adult daughter.  I understand that after four years he still does not have contact with his daughter.  He maintains a good relationship with his adult son.  The offender has commenced a relationship with a new partner, who has health issues.  The partner’s reference describes the offender as providing significant practical and emotional support to her.  The offender resides in private accommodation near Bungendore, provided as part of what appears to be a work for accommodation arrangement.

14․The offender’s residency in Australia appears precarious.  He has applied for citizenship, but that application has been stayed pending the outcome of these proceedings.  He has in the past held a residential visa of sorts.

15․I have only limited information about the offender’s employment history.  He is described within the Pre-Sentence Report as having completed year 12 and having university qualifications and having been consistently employed up until the commission of these offences.  One reference described him holding executive level positions across multiple ICT organisations.  Since the offending, and no doubt due in part because of media publicity, the offender has had difficulty securing employment.  He is currently unemployed.

16․The prosecution has indicated that the offender has made multiple inquiries through his lawyers for the purpose of repaying the stolen funds.  However, I am informed that under concurrent confiscation of criminal assets proceedings, the offender’s assets have been restrained and he is unable to access those assets for the purpose of repaying the club the stolen money.  Incidentally, it appears if those proceedings are successful, any money recovered will be paid to a fund administered by the Territory, and not directly to the club or the club’s insurer, and the Crimes (Sentencing) Act 2005 (ACT), s 34(2) prohibits me taking into account that confiscation for the purposes of sentencing. That is a curious outcome, one that would probably surprise most in the community and one that appears to elevate the interests of the beneficiaries of that fund above that of the victim in individual matters. In short, those proceedings provide the Territory’s fund, through the DPP, with an opportunity to profit from the offending, potentially at the expense of victims and removes any incentive and capacity for an offender to voluntarily repay the money.

17․I am told the club has received an insurance payment due to the offending.  However, the Supreme Court has held that, due to the language used within the Crimes (Sentencing) Act 2005 (ACT), s 19, Territory courts cannot make an order when sentencing that reimburses a consequential loss suffered by an insurer: R v CA (No 2) [2016] ACTSC 371 at [24]. I adopt with respect the observation by Mossop J in R v Snowden [2022] ACTSC 186 at [53]:

It would appear to be desirable to allow an offender, who is willing and otherwise able to do so, to repay the stolen money and have that repayment taken into account on sentence. That would be to the benefit of the victim of the criminal offending and of the offender. Such an outcome would appear to be consistent with general notions of fairness.

18․The offender comes before the court with no relevant criminal history, and his references speak favourably about his character.  I note that these proceedings have taken approximately four years to reach this point, and that passage of time was accompanied by the offender’s stress, uncertainty and apprehension about the outcome.  The offender has also experienced a very public fall from grace, which adversely affected his mental health, employment, relationships and finances.  He in expressed particular regret about the loss of contact with his adult daughter.

19․The offender was remanded in custody for 15 days before being granted bail.

20․The offender did not express any obvious remorse or contrition for his offending.  Within the Pre-Sentence Report he is reported as claiming he did not realise his actions were illegal, but curiously also identified the impact on the club.  In his letter to the court, he laboured the impact of the proceedings on him personally and apologised for the demand the case placed on the court’s time and resources.

Consideration

21․I acknowledge the offender’s previous good character but reduce the weight I place on it because it was his good reputation or, perhaps more precisely, the absence of a bad reputation, that enabled him to assume the role of club president and thereby have opportunity to commit the offences.  That good character is also offset by the need for general deterrence.  Office bearers of voluntary not-for-profit organisations should expect appropriate consequences for offending of this type and scale, notwithstanding any existing good character. 

22․While the delay in finalising this matter is far from ideal, it is not uncommon.  Further, the loss of reputation, employment and relationships do, and at times perhaps should, follow convictions for this type of offending.

23․The absence of offending before and after these offences, the otherwise good character of the offender, the public shaming of the offender who previously enjoyed and appeared to have benefited from a good reputation, and the two weeks already served in custody suggest that specific deterrence need not feature as highly as it otherwise might.  The offender has already experienced those adverse consequences as a result of his offending.  This is the case, notwithstanding the offender not expressing any remorse.

24․Much was said during submissions about the possibility that the offender might be deported.  However, that possibility remains just that, a possibility – without any real indication about what may occur.  It is difficult to take such speculation into account.

25․The parties have drawn to my attention a number of comparable sentencing decisions.  Most involve amounts much more significant, and none relate to a similar organisation.  In each case a custodial sentence was imposed, but in many cases those sentences were fully suspended.  They are of course a guide only, and individualised justice requires me to form an independent view about what would be just and appropriate sentences.

26․Clearly there is a need to punish the offender and denounce his conduct.  That conduct was over a prolonged period of time and involved four dozen separate transactions.  While most of the transactions may have possibly been spontaneous, that was not the case for those relating to the car lease and, in any event, they very quickly became repeated and systematic thefts of club funds, conducted with a breathtaking level of groundless and inexcusable entitlement.  However, the amounts and total amounts are relatively modest.  The sentences should be just and appropriate, and not unreasonably disproportionate to the nature and circumstances of the offending.  The sentences should provide a level of deterrence, both specific and general, and thereby also provide a level of protection to the community.  They should make the offender accountable for his actions and recognise the harm done to the club, as expressed in its victim impact statement and as can be independently inferred from the circumstances.

27․During this sentencing process, I need to assess the criminality and appropriate sentence without initially having regard to my jurisdictional limit.  However, I should ensure that I do not ultimately exceed that limit.  Put another way, while the sentence imposed by this court should be within the jurisdictional limit and subject to that requirement, the sentences imposed here should not be any less than what would be imposed by the Supreme Court, simply because it is imposed by this forum.

28․The number of charges here creates a difficulty.  Ordinarily each individual charge should attract an individual sentence that is appropriate in relation to the offending represented by each individual charge.  The totality of the sentencing can then be moderated, if necessary, by having individual sentences run concurrently to some degree, in order to ensure that the aggregate sentence is just and appropriate with respect to the totality of the offending.  Here that would represent 48 individual sentences, with potentially 47 orders addressing concurrency.  Some other jurisdictions can impose single aggregate sentences for multiple charges.  That is not yet permitted here in the Territory (except for Commonwealth offences in limited circumstances: See Crimes Act 1914 (Cth), s 4K(4).) Distinct sentences would involve a complexity that would be distracting, potentially confusing and ultimately unnecessary. As the offending falls neatly within three categories of similar offending, and the offending representing a course of conduct, with the criminality of each offence informed to some degree by the existence of the other offences within the same category; I will impose identical sentences for each offence within each category and have the sentences run concurrently with the other sentences within the same category. Those identical sentences will reflect the criminality in relation to the course of conduct associated with that category. I will then consider the question of totality across the three categories in the usual way. This approach was discussed with, and agreed by, the parties.

29․Ultimately I am of the view that due to the entitled, systematic and repetitive nature of the offending, nothing other than a custodial sentence was appropriate.  That outcome was agreed by the parties.  However, the relatively modest amounts involved, the reduced need for specific deterrence and the option to include community service have persuaded me that any further time to be served should be suspended.

Orders

30․The Court makes the following orders:

(1)In relation to the six charges associated with the debit card payments, namely 4906, 4910, 4912, 4913, 4914 and 4915, the offender is convicted and sentenced to 15 days’ imprisonment, backdated to have been served on and between 5 and 19 February 2020.

(2)In relation to the nine charges associated with the car lease payments, namely 4887, 4895, 4896, 4897, 4898, 4899, 4900, 4901 and 4902, the offender is convicted and sentenced to three months’ imprisonment, concurrent with each other and cumulative on the above sentences (4906, 4910, 4912, 4913, 4914 and 4915) and fully suspended upon him entering an undertaking to be of a good behaviour for 24 months with the following condition:

(a)that within 12 months he complete 80 hours of unpaid community service, concurrent on each other.

(3)In relation to the 33 charges associated with the electronic funds transfer to his bank accounts, namely 4917, 4920, 4922, 4925, 4926, 4927, 4928, 4929, 4930, 4932, 4934, 4935, 4938, 4939, 4940, 4943, 4945, 4962, 4964, 4965, 4968, 4970, 4975, 4976, 4978, 4981, 4982, 4986, 4987, 4988, 4989, 4990 and 4991, the offender is convicted and sentenced to four months’ imprisonment, concurrent with each other but cumulative for three months on the above sentences (4887, 4895, 4896, 4897, 4898, 4899, 4900, 4901 and 4902), and fully suspended upon him entering an undertaking to be of a good behaviour for 24 months with the following condition:

(a)that within 12 months he complete 80 hours of unpaid community service, concurrent with each other and cumulative on the community service already imposed (on 4887, 4895, 4896, 4897, 4898, 4899, 4900, 4901 and 4902).

I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Magistrate Theakston

Associate: Alyssa Zanardo

Date: 1 March 2024

Schedule

Charge	Date	Amount	Description	Recipient
Macquarie leasing transactions
4887	11/12/2017	$914.85	Internet BPAY	Macquarie Leasing
4895	15/12/2017	$914.85	Internet BPAY	Macquarie Leasing
4896	15/01/2018	$914.85	Internet BPAY	Macquarie Leasing
4897	15/02/2018	$914.85	Internet BPAY	Macquarie Leasing
4898	15/03/2018	$914.85	Internet BPAY	Macquarie Leasing
4899	16/04/2018	$914.85	Internet BPAY	Macquarie Leasing
4900	15/05/2018	$914.85	Internet BPAY	Macquarie Leasing
4901	15/06/2018	$914.85	Internet BPAY	Macquarie Leasing
4902	16/07/2018	$914.85	Internet BPAY	Macquarie Leasing
Subtotal		$8,233.65
Debit card transactions
4906	09/03/2018	$398.14	Debit card transaction	Telstra Bill Paymnt Melbourne
4910	10/05/2018	$571.95	Debit card transaction	Telstra Bill Paymnt Melbourne
4912	04/06/2018	$303.00	Debit card transaction	ACT Road User Service DICKSON
4913	04/06/2018	$313.00	Debit card transaction	ACT Road User Service DICKSON
4914	04/06/2018	$148.00	Debit card transaction	ACT Road User Service DICKSON
4915	15/06/2018	$354.05	Debit card transaction	Telstra Bill Paymnt Melbourne
Subtotal		$2,088.14
Electronic fund transactions
4917	05/12/2017	$100.00	Transfer	Test 2
4920	11/12/2017	$500.00	Transfer	Linked Acc Trns
4922	12/12/2017	$450.00	Transfer	Towing
4925	14/12/2017	$200.00	Transfer	Linked Acc Trns
4926	27/12/2017	$500.00	Transfer	Linked Acc Trns
4927	27/12/2017	$500.00	Transfer	Linked Acc Trns
4928	02/01/2018	$100.00	Transfer	Linked Acc Trns
4929	02/01/2018	$500.00	Transfer	Linked Acc Trns
4930	02/01/2018	$600.00	Transfer	Linked Acc Trns
4932	08/01/2018	$250.00	Transfer	Office 365
4934	15/01/2018	$450.00	Transfer	Tif samples
4935	16/01/2018	$500.00	Transfer	Linked Acc Trns
4938	29/01/2018	$375.00	Transfer	Linked Acc Trns
4939	05/02/2018	$450.00	Transfer	Linked Acc Trns
4940	06/02/2018	$250.00	Transfer	Linked Acc Trns
4943	12/02/2018	$250.00	Transfer	Linked Acc Trns
4945	19/02/2018	$350.00	Transfer	Linked Acc Trns
4962	28/03/2018	$750.00	Transfer	Linked Acc Trns
4964	29/03/2018	$500.00	Transfer	Linked Acc Trns
4965	03/04/2018	$450.00	Transfer	Linked Acc Trns
4968	09/04/2018	$500.00	Transfer	Linked Acc Trns
4970	11/04/2018	$250.00	Transfer	Linked Acc Trns
4975	23/04/2018	$250.00	Transfer	Linked Acc Trns
4976	24/04/2018	$500.00	Transfer	Linked Acc Trns
4978	04/05/2018	$750.00	Transfer	Defender Deposit
4981	14/05/2018	$450.00	Transfer	Linked Acc Trns
4982	15/05/2018	$750.00	Transfer	Linked Acc Trns
4986	28/05/2018	$250.00	Transfer	Linked Acc Trns
4987	01/06/2018	$250.00	Transfer	Linked Acc Trns
4988	05/06/2018	$300.00	Transfer	Linked Acc Trns
4989	08/06/2018	$450.00	Transfer	Linked Acc Trns
4990	14/06/2018	$250.00	Transfer	Linked Acc Trns
4991	18/06/2018	$250.00	Transfer	Linked Acc Trns
Subtotal		$13,225.00