Director of Public Prosecutions v Henry

[2023] ACTSC 384

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Henry

Citation: 

[2023] ACTSC 384

Hearing Date: 

12 December 2023

Decision Date: 

12 December 2023

Before:

Taylor J

Decision: 

See [83].

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – theft – rolled up count involving 260 separate acts – breach of trust by employee – excellent prospects of rehabilitation – significant remorse – early acceptance of responsibility – low risk of re-offending – effect on offender’s family taken into account – intensive correction order imposed

Legislation Cited: 

Crimes (Sentence Administration) Act 2005 (ACT), s 42

Crimes (Sentencing) Act 2005 (ACT), ss 10, 11(2), 19(3), 33, 35(4), 36

Criminal Code 2002 (ACT), s 308

Magistrates Court Act 1930 (ACT), s 90A

Cases Cited: 

Alexander v Bakes [2023] ACTSC 103

Coggan v The Queen [2013] ACTCA 49

Cranfield v The Queen [2018] ACTCA 3

DPP v Calhoun (a pseudonym) [2023] ACTSC 189

Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428

DPP v Moala (No 3) [2023] ACTSC 306

DPP v Rue [2023] ACTSC 270

DPP v Samuel Myers (a pseudonym) [2023] ACTSC 142

Hili v the Queen (2010) HCA 45; 242 CLR 520

Hogan v Hinch [2011] HCA 4; 243 CLR 506

Johnson v R [2017] NSWCCA 53

Laipato v The Queen [2020] ACTCA 35

Markarian v The Queen [2005] HCA 25; 228 CLR 357

McLeod v The Queen [2018] ACTCA 59

R v Berry (unreported, Supreme Court of the ACT, Burns J, 2 October 2012, SCC 117 of 2012)

R v Diamond [2015] ACTSC 60.

R v Dibley (unreported, Supreme Court of the ACT, Burns J, 16 September 2013, SCC 193 of 2009)

R v Foley [2001] ACTSC 109

R v Hancock [2021] ACTSC 52

R v Hawcroft [2009] ACTSC 145

R v Kennedy [2021] ACTSC 80

R v MAK [2006] NSWCCA 381; 167 A Crim R 159

R v Newby [2022] ACTCA 20; 367 FLR 122

R v Snowden [2022] ACTSC 186

R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103

R v Tucker (unreported, Supreme Court of the ACT, Refshauge J, 30 August 2010, SCC 439 of 2009)

R v Walker (unreported Supreme Court of the ACT, Gray J 13 December 2000, SC 179 of 2000)

R v Woodman [2001] NSWCCA 310

Parties: 

Director of Public Prosecutions ( Crown)

James Henry ( Offender)

Representation: 

Counsel

E Bayliss ( DPP)

J Cooper ( Offender)

Solicitors

ACT Director of Public Prosecutions

Aulich Law ( Offender)

File Number:

SCC 198 of 2023

TAYLOR J:   

Introduction

1․The offender James Henry stands to be sentenced in relation to one offence of theft. The offending occurred over a 13-month period commencing in 2021 and involved a gross breach of the trust extended to him by his employer, Officeworks Fyshwick. The offender’s management responsibilities authorised him to process refunds. In a fairly unsophisticated scheme, the offender processed multiple false refunds using his own bank card and directed the funds to his own bank account. The offending, once detected, was easily uncovered as the conduct of the offender. The offender is 34 years of age and does not have a criminal history. He has very good prospects of rehabilitation.

The offence

2․On 22 August 2023 in the ACT Magistrates Court, the first occasion this matter was before the Court, the offender entered a plea of guilty to the following offence:

(i)CC2023/6270 – Dishonestly appropriate property, contrary to s 308 of the Criminal Code 2002 (ACT) (the Criminal Code).

3․The offender was committed to this Court for sentence pursuant to s 90A of the Magistrates Court Act 1930 (ACT).

Facts

4․The offender was hired on 8 October 2019 by Officeworks Fyshwick, located at 1 Whyalla Street, Fyshwick in the Australian Capital Territory (ACT). The offender was then hired into a managerial level position as the retail coordinator and worked in this position from 9 February 2021 to 16 March 2022.

5․In this position, the offender was responsible for processing refunds and had the ability to authorise sales refunds of over $200, as compared to other staff members who could only authorise refunds under $200. Over the period he was employed as a retail coordinator he processed 260 separate refunds totalling $49,497.64 onto his personal Mastercard which was connected to his Commonwealth Bank account.

6․Inquiries were conducted into the transactions, particularly a gap where no thefts occurred between 28 August 2021 and 26 October 2021 due to the Officeworks store being closed during the COVID-19 lockdown.

7․On 24 March 2022 the Store Business Manager noticed anomalies during a refund stocktake and observed that there had been numerous refunds made to the offender’s Mastercard. The manager reviewed the store’s CCTV footage which showed the offender processing a refund at 11:49am on 10 March 2022 for $817. She observed the offender removing his wallet from his pocket, taking a card out of the wallet and tapping it on the Point of Sale (POS) machine. On 24 March 2022, Officeworks management was notified, and the offender was suspended.

8․An Officeworks Loss Prevention Manager conducted a further investigation into the thefts. This investigation found that the majority of the refunds made to the offender’s card were made when he was logged into the store’s POS system or when he used his managerial authority to approve the refund.

9․On 1 April 2022, the offender attended a meeting with the Store Business Manager and a New South Wales (NSW) area manager. The offender admitted his actions were contrary to store policy and he was suspended from his duties. He was invited to show cause as to why he should not be terminated. On 7 April 2022 Officeworks sent a show cause letter to the offender and on 11 April 2022 he sent a reply to this letter. The offender accepted responsibility for his actions and attributed it to ongoing mental health issues and financial stress related to a parental custody dispute. On the same day he attended another meeting with Officeworks staff. He was advised during this meeting that his employment had been terminated. 

10․At no time was the offender authorised to make refund payments to his own bank account. These transactions were in breach of Officeworks’ refund policy and prohibited by the store’s standing orders.

11․On 29 June 2022 the Officeworks Loss Prevention Manager attended Canberra City Police station to report the thefts and make a statement. He provided police with a spreadsheet showing all refunds made, minutes of the meeting with the offender, the offender’s written response to the show cause letter, the Officeworks CCTV and physical copies of the refund receipts.

12․On 3 October 2022 police executed a search warrant on Commonwealth Bank Australia (CBA) and requested records of all bank accounts belonging to the offender. CBA confirmed that the offender held one bank account linked to his Mastercard and that the account had been opened by the offender using his driver’s license as identification. The refunds made to the Mastercard were matched to 260 transactions on the offender’s account statement.

13․On 22 February 2023 police contacted the offender and he advised he would attend City Police Station to participate in an interview. The offender’s solicitors later advised police he would not participate in an interview.

Sentencing Considerations

Nature and circumstances of the offending

14․A consideration of the nature and circumstances of the offending necessarily requires an assessment of the objective seriousness of the conduct. The maximum penalty provided for by the legislature provides a “yardstick” against which to assess the objective seriousness of the offending: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31]. In my view, the features of the offending that inform an assessment of objective seriousness of the offending in this matter are:

(i)The charge is a ‘rolled up’ count encompassing an ongoing course of criminal conduct comprising 260 separate transactions. The value of the property is $49, 497.64;

(ii)The offending represents a gross breach of trust. The offender repeatedly exploited the access and responsibilities assigned to him by virtue of his employment for his own personal gain; and

(iii)The offending, while largely unsophisticated, occurred over a period of thirteen months and stopped after anomalies were detected during a refund stocktake, with the offender eventually detected as responsible for the anomalies.

15․A ‘rolled up’ charge in this instance that encompasses 260 episodes of offending reflects a greater degree of criminality than a charge that captures one instance of offending: see R v Hancock [2021] ACTSC 52 at [28] and Johnson v R [2017] NSWCCA 53 at [68]. In this instance the ‘rolling up’ of the individual episodes into one charge is of benefit to the offender. The number of episodes involved here is significant and I consider the criminality involved to be high.

16․The offence provision can capture offending that involves property of unlimited value. The value of the property in this instance was not insignificant though is not in the realm of some of the much higher values involved in the comparable cases to which I will turn further on in these remarks. As I have already identified, the offending was rather unsophisticated and ultimately, quite easily detected. The period of time over which the offending occurred together with the number of transactions, demonstrates some degree of pre-meditation and planning.

17․Consistent with observations made in this jurisdiction that references to low, mid or high range may generally be unhelpful (see R v Toumo'ua [2017] ACTCA 9; 12 ACTLR 103 at [24] and Laipato v The Queen [2020] ACTCA 35 at [156]), McCallum CJ recently observed in DPP v Moala (No 3) [2023] ACTSC 306 at [22] that it is not necessary to express a finding of objective seriousness “as a point on a hypothetical range”. I have adopted that approach here and identified the features of the offending that inform the objective seriousness of the conduct.

Responsibility, remorse and loss resulting from the offence

18․The offender made immediate admissions upon being confronted with his conduct in a meeting with his employer on 1 April 2022. Consistent with that early acceptance of responsibility the offender entered a plea of guilty on the first occasion the matter was before the ACT Magistrates Court, the effect of which I deal with at [59].

19․Up until the commencement of the conduct the offender was a person of good character. This is a factor that undoubtedly assisted him into the employment position that facilitated the conduct and so takes on limited significance. The offender bears a high degree of moral culpability for the offending given the nature and extent of his conduct. He has not sought to minimise his role reflecting insight, maturity and remorse.

20․A letter written by the offender to Officeworks, Fyshwick on 11 April 2022 (before being charged with the offence) is further reflective of shame and remorse. He describes his conduct as appalling and as a “terrible mistake” inconsistent with his character and values. He identifies an intention to cooperate and be honest with any investigation. In the end, he followed through on that intention. The offender identified financial pressures, emotional stressors connected to his family law dispute and mental health struggles as motivators for his offending. He confirms a previous offer made by him to Officeworks on 7 April 2022 to repay the money. Since 23 August 2023 the offender has made weekly repayments to the victim organisation of $100. To date, the total amount repaid by the offender is in the vicinity of over $1000.

21․The expressions of remorse in the letter are consistent with both his very early plea of guilty, his efforts in relation to repayment and the commentary attributed to him in a Pre-Sentence Report (PSR), an Intensive Correction Order Assessment Report (ICOAR)  and a psychological report to which I will come, about his view of the offending. They are also consistent with the six character references before the Court which all speak to his deep regret, remorse and acceptance of responsibility for the offending. I am satisfied that the offender has consistently demonstrated genuine remorse and this is an important factor when considering his prospects for rehabilitation: R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at [41].

22․To date the victim business entity has not made an insurance claim to recoup the loss occasioned by the offender’s conduct. The capacity to be covered by insurance is relevant to the victim’s capacity to recover from the loss should the offender not make any further repayments or be unable to make good on his intention to repay. This is relevant in terms of assessing the extent of the loss suffered by the victim. It is not a factor that contributes to an assessment of the objective seriousness of the offending: McLeod v The Queen [2018] ACTCA 59 at [6]-[16]. In this instance whether by repayment from the offender or through insurance, the victim will recoup the loss occasioned by the offender’s conduct.

Subjective circumstances

23․The material before the Court includes a Pre-Sentence Report (PSR) dated 4 December 2023, an Intensive Correction Order Assessment Report (ICOAR) dated 4 December 2023, a Psychological Assessment Report from Patrick Sheehan, correspondence from clinical psychologist Free Cleynen and six character references.

24․The offender gave evidence in the proceedings. He was not subject to cross-examination and there is no basis for me to reject any of his evidence. It is my assessment that he gave frank and genuine evidence. He described his parents as having values that placed a high premium on trust and honesty. His siblings and parents remain in Northern Ireland. The offender described feeling ashamed and embarrassed about his conduct. He said he knew he had broken the trust of his colleagues who he considered friends and had tarnished the relationships that he had built during the time that he was employed by Officeworks. The offender said he took the opportunity to apologise to the Store Manager who he considered a real friend. He said he wanted her and other members of the team to know that he was sorry. The offender demonstrated real distress about the harm that he caused and the trust that he eroded.

25․The offender said his new role is teaching “diversity and support children” two days a week and that he has now done so for two terms. He identified great enjoyment from the role and said he will be completely qualified next year enabling him to teach full time. The work, he said, is “amazing” and that it was the realisation of a long term goal to become a teacher. He credited his wife for her ongoing support of this goal.

26․The offender said accessing psychological support had been of real benefit. He described feeling initially, as if a weight was lifted from him and as it has gone on, being challenged by the psychologist to understand his behaviours and why he is in this position. He described struggling to process his conduct and the psychological support assisting him to move toward forgiving himself. He said this is an “ongoing process.”

27․He confirmed his current repayment plan was $100 a week to Officeworks. He also outlined a position of significant financial strain on the family given he is working two days a week and his wife is currently on maternity leave. The offender said once he moves to full time employment next year he would be able to significantly increase the amount he is repaying to Officeworks.

28․The offender outlined the current care plan for his eldest daughter which sees her with him five days a fortnight, shared care over the holidays and year on-year off over the Christmas period. This year is the first occasion the offender will spend Christmas with his daughter since she was two years old. The offender’s twins are just over four months old having been born at 33 weeks gestation. The offender described being actively involved in their care. The offender’s wife has Type 1 Diabetes and the birth of the twins has seen an increase in her experience of hypoglycaemia, the symptoms of which include light headedness. This has seen driving become problematic for her on occasion and the offender take over the ‘night shift’ from his wife with increasing regularity.

Pre-Sentence Report

29․The offender is currently 34 years old. He was born and raised in Northern Ireland. Having originally come to Australia for a “gap year” in 2010, the offender migrated to Australia in 2012 with the intention of residing here permanently in 2012. At this time, he married his previous partner. Together, they have a daughter. The offender recounted significant conflict in this relationship to the author of the PSR and claimed that his ex-partner made false allegations of abuse against him. The offender disclosed that this resulted in a Provisional Protection Order against him in NSW for a short period of time, however he contested this order and it was soon dismissed. The offender described significant difficulties maintaining contact with his daughter following the breakdown of the relationship.

30․The offender identified a specific period of four to five months in 2021 where he had minimal contact with his daughter, which he attributes to interference by his ex-partner. The offender told the author of the PSR that this disconnect caused him significant emotional distress. Consequently, he initiated costly family law proceedings to pursue regular contact with his daughter. The offender now has shared parental responsibility of his daughter through consent court orders, and he described a reduction in the stress associated with co-parenting his daughter despite being an ongoing source of tension.

31․The offender has been in a relationship with his current wife since 2020. He detailed this relationship to the author of the PSR as supportive and rewarding. The offender and his wife welcomed twins, prematurely, earlier this year. The offender has been accepted and supported by his wife’s extended family; this information was verified by the offender’s wife.

32․The offender, his wife and their twin infants currently reside in a property. The offender’s wife is the mortgagor. The offender’s daughter also resides at the property on a part-time basis.

33․The offender reported to the author of the PSR that he completed the equivalent of Australian high school in Northern Ireland with no issues. The offender also completed a Bachelor of Media Arts with Honors in Ireland and provided verification of this qualification during interviews in preparation for his PSR. The offender is currently enrolled in a Master of Secondary Teaching through the University of Canberra, having verified this with his academic transcript. Consistent with the evidence he gave, the report details that the offender is currently studying on a part-time basis, having reduced his studies due to the early arrival of his twins, and estimated that he will complete his study in early May 2024.

34․The author of the PSR noted the offender self-reported a steady history of employment in the retail industry since the completion of his initial tertiary studies. The offender acknowledged to the author that the current charges resulted in his termination of his employment at the victim organisation in 2022. The PSR confirms that the offender is employed part-time as a high school teacher. He expressed considerable satisfaction in his occupation to the author of the PSR. The offender’s wife verified that he is highly passionate about his profession and receives personal rewards through his employment.

35․The offender reported his primary source of income is his current employment. The offender provided a recent pay slip verifying his fortnightly wages to the author of the PSR. Additionally, he receives some family tax benefits, equating to approximately $85 per fortnight. The offender described regular child support contributions of approximately $117 per month, though indicated this figure is subject to fluctuation. Both the offender and his wife contribute to household expenses, including the mortgage of their residence.

36․The offender acknowledged he is experiencing some ongoing financial stress, however he claimed that he and his wife are managing their finances adequately. The offender’s wife stated their current financial circumstances are sustainable for approximately 12 months, due to diminishing savings.

37․The offender’s wife verified that he has well-formed connections will a small group of pro-social friends, both locally and internationally and that he has disclosed his offending to his friends, who have supported him and offered their encouragement.

38․The offender provided a history of limited drug and alcohol use, engaging in regular consumption from ages 18 to 21, though mainly in social settings. He reported regular cannabis use from age 17 to 19 which then reduced to infrequent use every couple of months from age 19 to 21 that ceased 12 years ago. His wife verified that he used alcohol minimally and she had no knowledge of illicit substance abuse over the last three years. All three urinalysis results provided to Corrective Services were negative.

39․The offender reported being diagnosed with high blood pressure and high cholesterol in August 2023 and that this was being managed by prescription medication. He was diagnosed with depression in 2016 and has been medicated since this time. He described his mental health as currently stable apart from the current stresses of the current court matters. He has a mental health plan and sees a psychologist regularly. His wife verified this information and indicated the stress associated with co-parenting his daughter is likely to continue.

40․The offender agreed with the statement of facts and did not attempt to minimise or justify his offending. He took responsibility of his actions and demonstrated an awareness of the impacts of his conduct on his family, supervisor and Officeworks. The offender reported that he has begun making repayments to Officeworks. He identified that financial and emotional stressors had significant influence on him at the time of the offending and that he had not coped adequately. The offender considered that he had a false sense of security and became addicted to continuing the offending, despite knowing that he would be caught. It is clear that the offender knew that what he was doing was wrong when he engaged in the offending conduct.

41․The offender was assessed as suitable for a low level of supervision. Risk factors were identified as financial and emotional stressors. The report confirms that the offender has several protective factors in his favour including stable accommodation, ongoing employment and pro-social connections and family support. The report records that the offender has sought treatment for his mental health issues further reducing his already low risk of reoffending. The offender was assessed a suitable for a Community Service Work condition.

ICO Assessment Report

42․The information contained in the ICOAR is consistent with those matters that I have just referred to.

43․The author assessed the offender’s proposed accommodation as suitable.

44․The ICOAR assesses the offender as suitable for an ICO and includes general recommendations about the factors supervision under such an order would target including his emotional and financial states. There are no specific  recommendations in relation to conditions that should be included as part of any ICO imposed.

Psychological Assessment Report of Psychologist, Patrick Sheehan

45․The history provided by the offender to Mr Sheehan in relation to his upbringing, education, employment, relationships, substance use and mental health was largely consistent with that provided to the author of the PSR as summarised above. The offender spoke of the fulfillment he has gained from working part time as a special needs teacher at a high school in Canberra and hopes to continue working there once he has finished his Masters of Teaching. This factor is significant in terms of an assessment of the offender’s prospects of rehabilitation and the need to protect the community. His aspiration to contribute to the community through teaching is an honourable one that will not only benefit him but the young people he assists. It is an aspiration that reflects well on his values and lends further support to the proposition that he is unlikely to reoffend.

46․As I have already identified, the report of Mr Sheehan reflects genuine insight and remorse. Mr Sheehan records that the offender was able to identify his distorted logic in committing the offences. The offender acknowledged that he was wilfully ignorant to the extent of his offending, becoming emboldened and more irrational as the offending continued. The offender described being unable to stop. The offender acknowledged the harm he had caused, the betrayal of trust and that the offending was “illegal, dishonest, manipulative and hurtful.” The offender reiterated that he was currently making repayments and intended to repay the full amount to Officeworks, demonstrative of his taking of responsibility for the offending.

47․Mr Sheehan held the opinion that the offender has been deeply affected by the consequences of the offending, including shame caused by media reporting, and that this has been a strong deterrent to reoffending. It also appears to have been a catalyst for the offender to properly manage his depression which he identified as contributing to the offending. Mr Henry presented at the lowest end of the risk assessment spectrum in terms of re-offending.

Treatment letter, clinical psychologist Free Cleynen

48․This letter confirms that the offender has been engaging in psychological treatment since August this year on a fortnightly basis. The offender had attended six sessions at the time the letter was written and is described as “showing a high level of engagement during the sessions” and as being “willing to continue with therapy.”  

Character references

Vickie Petchell

49․Ms Petchell is the mother-in-law of the offender. She spoke of how caring and kind the offender is. The offending shocked her as it was extremely out of character for the offender. She mentions his remorse and his shame, embarrassment and distress. She described his dedication to his family and the respect he is shown by his work colleagues.

Anna Henry

50․Ms Henry is the wife of the offender. She wrote that offender’s disclosure of the charge and the statement of facts shocked her as it was so out of character for the offender. She describes his deep remorse and disgust with himself. She was aware of the offender’s financial struggles at the time, identifying the financial burden of the family law dispute. Ms Henry said that understanding these financial pressures allowed her to forgive him for the offending. She attested to his remorse and the actions he has taken, such as volunteering and seeking psychological support. She described the offender as loving and caring. In particular Ms Henry records the support the offender provides to her and their children and the hardship she would experience if he were sentenced to a period of full time imprisonment.

Jennifer Ohlmus

51․Ms Ohlmus is the sister-in-law of the offender. She described the offender as selfless and compassionate. She records her shock upon discovering the offending as she considered it to be extremely out of character. She describes the offender as dedicated to his family and the community. Ms Ohlmus considers that he has taken full responsibility for the offending, demonstrating deep remorse.

Christopher Mitchell

52․Mr Mitchell is a long term friend of the offender for some 17 years. He described the offender as a trusted friend, compassionate and caring. Mr Mitchell said the offending is uncharacteristic and he had observed the offender to be ashamed and desirous of making amends.

Adam Mogey

53․Mr Mogey is another long term friend of the offender, having known him for 30 years. He said the charge came as a shock to him and that it was very out of character for the offender. He also spoke of the offender’s selflessness and work ethic. He is aware of the offender’ struggles with mental health issues and of the remorse and shame the offender has expressed to him regarding his actions.

The probable effect of any sentence on the offender’s dependants

54․Undoubtedly a sentence of full time imprisonment would have a significant impact on the offender’s immediate family members, in particular his current partner who would be left caring for twin babies alone and without the financial support of the offender. As discussed in DPP v Rue [2023] ACTSC 270 at [94]-[97], there is no requirement that the probable effect be “exceptional” or “out of the ordinary” in order for it to be taken into account. Accordingly I have taken this factor into account.

Rehabilitation and delay

55․I am satisfied the offender has excellent prospects for rehabilitation.

56․This view is supported by the commentary in the PSR, the ICOAR and the report of Mr Sheehan as well as the offender’s early acceptance of responsibility and the consistent steps he has taken since his conduct was uncovered. Inexplicably, noting the circumstances of the case against the offender, there was a period of some time between the discovery of the conduct and the charging of the offender. There is no suggestion the delay was in any way the fault of the offender. In that time the offender has lived with the prospect of the offending hanging over him. I accept this has left him in a state of uncertainty, something that undoubtedly weighed on his psychological state. Despite this, the offender has made positive, consistent efforts towards his own rehabilitation including significant efforts directed towards carving out a new career.

57․The offender’s prospects for rehabilitation are relevant to an assessment of the need to protect the community. Rehabilitation is an enduring form of community protection and is in the public interest (Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [32]). The offender presents as a low risk for further reoffending and as entirely capable of successful rehabilitation.

Criminal history and time in custody

58․The offender has no recorded criminal history. The offender has spent no time in custody in relation to this offence.

Guilty plea

59․The offender entered a plea of guilty at the very earliest opportunity on the first occasion the matter was before the ACT Magistrates Court on 22 August 2023. The timing of the plea represents significant utilitarian value and ordinarily would attract a discount of  25 per cent.

60․Section 35(4) of the Crimes (Sentencing) Act2005 (ACT) (Crimes (Sentencing Act) prohibits the court from making any “significant” reduction for the fact that the offender plead guilty if, based on established facts, the court considers that the prosecution case for the offence was “overwhelmingly strong”. A consideration of this issue “calls for a practical assessment of the reality of the situation” and an overwhelming case means “so great as to render opposition useless”: R v Newby [2022] ACTCA 20 at [31].

61․The prosecution submit that the circumstances of this case see it properly characterised as falling under the terms of s 35(4). The circumstances relied upon are the offender’s use of his own workplace login, his own bank card and account details together with some of the offending being captured on CCTV footage and the offender’s admissions.

62․An overwhelmingly strong case is one where “an acquittal [would be] realistically unlikely”: Newby at [31]. In R v Snowden [2022] ACTSC 186, Mossop J at [48] observes that a discount that reflects the utilitarian value of the plea but is not a “significant reduction” for the purposes of s 35(4), will be in the order of 5 percent: see also DPP v Samuel Myers (a pseudonym) [2023] ACTSC 142. As Mossop J recognised in Snowden a determination of what is a significant reduction may “vary from case to case”: at [47].

63․An assessment of the prosecution case pursuant to s 35(4) requires careful consideration of the strength of the evidence in support of the charge. In my view in this instance, while the case was certainly strong, even very strong, I do not consider it to be overwhelmingly so. In this case the plea came at the very earliest opportunity. The plea of guilty represents a significant saving to the court and community, avoiding the need for a lengthy trial. Indeed in this instance the preparation of a brief of evidence was also entirely avoided, the offender pleading guilty to the original statement of facts. A discount of 25 per cent is appropriate.

64․If I am wrong to find that s 35(4) is not invoked then s 36 of that Act permits a lesser penalty to be imposed where the offender has assisted the investigation or prosecution of the case against the offender.

65․As has been observed by the Court of Appeal in R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 the Explanatory Statement for this section “does not elaborate on the purpose of including s 35(4)” at [70], in circumstances where strong, even overwhelmingly strong cases, can require significant resources to prosecute and can nonetheless fail: see Coggan v The Queen [2013] ACTCA 49 at [20]. I would add that as with weak prosecution cases, overwhelmingly strong cases have the same potential for significant effect on witnesses who are required to give evidence. Though of course sparing a victim from coming to court and giving evidence is primarily relevant to an assessment of remorse: Cranfield v The Queen [2018] ACTCA 3 at [36].

66․The effect of s 35(4) here would be to deny the offender a discount in large part because of his very early acceptance of responsibility by virtue of his desire to be honest and cooperative with his employer. This seems to me to be an unjust outcome in circumstances where the value of the early acceptance of responsibility by the offender is significant. In DPP v Calhoun (a pseudonym) [2023] ACTSC 189 Mossop J considered this tension observing at [64]:

The effect of s 35(4) would be to deny the offender a discount on account of the plea of guilty because of the strength of the prosecution case in circumstances where the strength of that case arose from voluntary admissions made by the offender. This would appear to be an outcome which was unfair and reflected no real sentencing purpose. However s 35(4) must be read along with s 36 which permits a lesser penalty to be imposed where the offender has assisted in investigating the offence or assisted in a proceeding in relation to the offence. That must include the making of admissions that assist in the investigation or prosecution of the case against the offender. Nothing in the considerations in s 36(3) indicate that assistance in this form is not within the contemplation of the section. In circumstances where the offender would have been entitled to a reduction of 25 percent under s 35 but for the making of admissions that assisted the prosecution case, it is appropriate that he receive that discount by a combination of ss 35 and 36 of the Crimes (Sentencing) Act.

67․In my view the approach taken by Mossop J can be appropriately adopted in this instance. So, even I am wrong about the application to the circumstances of this case of s 35(4), the offender would nonetheless receive a 25 per cent discount by virtue of a combination of ss 35 and 36 of the Crimes (Sentencing) Act. This is the discount I will apply.

68․The offender has submitted that a further discount is warranted pursuant to s 35A because he drew to the attention of the prosecution that the particulars of the charge required amendment to avoid a ‘technical’ legal issue; the legal issue being the nature of the property stolen. This issue was considered in Alexander v Bakes [2023] ACTSC 103. Acting Justice Berman determined, considering the earlier authority of R v Hawcroft [2009] ACTSC 145, that particulars (being the nature of the property appropriated) were not an element of the offence and were amendable to amendment without prejudice to an accused, even late in the prosecution case. While subject to appeal, in this instance the relevance of those authorities is that the offender in seeking the amendment of the charge proffered against him, did not necessarily save or make the prosecution case. On any view it is clear the offender was well aware of the case against him.

69․It is unnecessary to delve any further into the specific detail of the legal issue because I am of the view that the offender seeking an amendment to the particulars is a matter properly taken into account as part of his overall acceptance of responsibility (reflecting the high utilitarian value that I have already assessed) and therefore an additional discount pursuant to s 35A is not warranted.

Sentencing practice

70․The sentencing process requires justice to be done by reference to the particular circumstances of each individual case. It is through this prism that outcomes in  comparable cases find their proper context . Sentencing statistics and comparable cases do not define the possible range of available sentences nor do they place a cap on the upper or lower ranges of possible sentences: see Hili v the Queen (2010) HCA 45; 242 CLR 520 at 537 [54] and Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [51]-[53].

71․In R v Snowden [2022] ACTSC 186 (Snowden), Mossop J referred to a number of sentencing outcomes in this Court for the offence of theft and/or obtain property by deception (the maximum penalty for both offences is the same): at [50]. Helpfully, they are summarised as follows:

R v Morris [2017] ACTSC 400 ($191,141 obtained over eight months, 25 percent reduction for plea of guilty, sentence of 20 months’ imprisonment suspended after five), R v Reid [2016] ACTSC 24 ($338,103.70 obtained over a 12-month period, 25 percent reduction for plea of guilty, 38 months’ imprisonment suspended after eight), R v NQ [2017] ACTSC 317 ($406,876.80 obtained over a three-year period, 25 percent reduction for plea of guilty, 36 months’ imprisonment suspended after 15), R v Mooney [2017] ACTSC 358 ($157,609.06 appropriated over four years, 15 percent reduction for plea of guilty, three years’ imprisonment with a non‑parole period 18 months), R v QU [2019] ACTSC 155 ($160,430.39 obtained over 23 months, 25 percent discount for plea of guilty, three years imprisonment served by ICO). In addition, counsel for the offender referred to R v Raftery [2022] ACTSC 77 (Raftery)(theft of $292,240.70 over a six-month period, discount of 15 percent for plea of guilty and remorse, 12 months and 21 days’ imprisonment suspended after four months). Raftery was not a case involving an employer-employee relationship.

72․In Snowden, the offender was an employee of the victim business. Over a period of four years the offender dishonestly obtained property by deception totalling $230, 567. In addition he stole cash to the value of $18,130. The offending stopped when it was detected by a colleague. The offender was 46 years of age with no criminal history. His offending facilitated a gambling problem which had ceased by the time he came to be sentenced. He had a supportive relationship and was assessed as being unlikely to reoffend. A determination that the case against the offender was “overwhelmingly strong” saw a discount of 5% imposed. The offender was sentenced to 28 months and 15 days imprisonment for the theft and 40 months imprisonment for the obtain property by deception offence. A total period of 46 months imprisonment was imposed and suspended after the offender served 14 months imprisonment.

73․The prosecution further identified R v Kennedy [2021] ACTSC 80, R v Walker (unreported Supreme Court of the ACT, Gray J 13 December 2000, SC 179 of 2000), R v Foley [2001] ACTSC 109, R v Tucker (unreported, Supreme Court of the ACT, Refshauge J, 30 August 2010, SCC 439 of 2009), R v Berry (unreported, Supreme Court of the ACT, Burns J, 2 October 2012, SCC 117 of 2012), R v Dibley (unreported, Supreme Court of the ACT, Burns J, 16 September 2013, SCC 193 of 2009) and R v Diamond [2015] ACTSC 60 in the course of their sentencing submissions.

74․It can be observed that those outcomes involved offending where the property was valued between $38,000 and $78,000. In each case except Walker while periods of imprisonment were imposed there was variation in the way those periods were served. Consistent with the variation in the sentencing outcomes to which I have referred the prosecution submitted that the “enormous variation” in the objective and subjective features of this kind of offending means reference to general sentencing principles provides more meaningful assistance than reference to sentencing outcomes or statistics:  R v Woodman [2001] NSWCCA 310.

Determination

75․Clearly the sentence imposed should reflect the very significant role of general deterrence in this instance. The conduct of the offender exploited the trust necessarily extended to him by his employer: trust that is fundamental to the operation of businesses who require employees to function. Punishment, denunciation and accountability must also feature as significant considerations in recognition of that trust. There is also a need to recognise the harm done to the victim. I am satisfied the offender has excellent prospects of rehabilitation and that he is highly unlikely to reoffend. I am satisfied that he is genuinely remorseful. I do not consider specific deterrence to be a significant factor. The promotion of rehabilitation is in the community’s interest as much as it is in the offender’s interest.

76․The offending was serious, made plain by the number of transactions involved, the period of time over which it occurred, the value of the property and the gross breach of trust. The only appropriate outcome in the circumstances, having regard to possible alternatives, is a period of imprisonment: s 10, Crimes (Sentencing) Act. So much was conceded by counsel for the offender.

77․In my view the offender’s early acceptance of responsibility, his low risk of reoffending together with his subjective circumstances and his suitability for an ICO point away from the need for the period of imprisonment to be imposed full time.

78․An ICO is an alternative to full time custody and so represents the extension of leniency. It is nonetheless a regime of intense supervision that requires strict compliance with swift  consequences for failure. The consequences of non-compliance can include the imposition of full-time imprisonment. Should the offender lose the motivation to reform that he has thus far demonstrated, the regime of an ICO will operate to hold him accountable.

79․Section 11(2) of the Crimes (Sentencing) Act provides that if a sentence of imprisonment is imposed for not more than two years the court may order that the sentence be served by way of an intensive correction order in the community.

80․In my view a consideration of all of the relevant factors in this matter weighs in favour of the imposition of an ICO and the prosecution was not heard against the imposition of such an order. The prosecution sought the making of a reparation order pursuant to s 19(3) of the Crimes (Sentencing) Act . The offender was not heard against that outcome.

81․In coming to a conclusion by way of instinctive synthesis I have taken into account the objective seriousness of the offence, the subjective circumstances of the offender and the general principles of sentencing that feature prominently in this matter. This is a matter where, despite the seriousness of the offending, a period of full time imprisonment is not warranted.

82․The starting point for the offence is 32 months imprisonment. After the application of a 25 per cent reduction the period is reduced to 24 months imprisonment.

83․The orders of the Court are:

(1)On the charge of dishonestly appropriating property (CC2023/6270) you are convicted. I sentence you to a term of imprisonment of 2 years, commencing on 12 December 2023 and ending on 11 December 2025.

(2)Pursuant to s 19(3) of the Crimes (Sentencing) Act I make a reparation order requiring the offender to pay $48, 397.64 to Officeworks Ltd.

(3)I order that the sentence of imprisonment be served by way of Intensive Correction Order subject to the core conditions listed in s 42 of the Crimes (Sentence Administration) Act 2005 (ACT).

I certify that the preceding eighty-three [83] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Taylor.

Associate:

Date: 13 December 2023