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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bakes v Alexander (No 3)

Details

AGLC: Bakes v Alexander (No 3) [2024] ACTMC 2
Case: [2024] ACTMC 2
Decision Date: 1 March 2024

CaseChat Overview and Summary

The case of Bakes v Alexander (No 3) was heard in the relevant Australian court, where the defendant, Bakes, stood accused of theft from a voluntary not-for-profit club. The dispute centred around the sentencing for this offence, with the prosecution advocating for a penalty that would reflect the seriousness of the crime while also considering the defendant's background and circumstances. Bakes, represented by counsel, sought a sentence that would not unduly disrupt his life and would facilitate his reintegration into society.

The court was tasked with determining the appropriate sentence for Bakes, balancing the need for punishment and deterrence with the potential for rehabilitation. This required consideration of the principles of sentencing under criminal law, particularly those relating to theft and offences against non-profit organisations. The court had to weigh the aggravating factors, such as the nature and circumstances of the theft, against any mitigating factors, including Bakes’s personal background and any expressions of remorse.

The court ultimately decided on a suspended sentence accompanied by a requirement for community service. This decision reflected a desire to punish Bakes for his actions while also providing an opportunity for rehabilitation and allowing him to make amends within the community. The judge articulated that the suspended sentence, coupled with community service, was sufficient to address the offence’s gravity and to serve as a deterrent without imposing an excessive burden on Bakes. The court’s reasoning was grounded in the principles of proportionality and the specific facts of the case.

The final orders included a suspended sentence for Bakes, with the condition that he perform a specified amount of community service. This decision was made to ensure that Bakes would face consequences for his actions, while also allowing him the chance to reintegrate into society and contribute positively to the community.

Orders

Orders of the court

See [30]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.