Director of Public Prosecutions v Reynolds
[2012] NSWLC 10
•24 October 2012
Local Court
New South Wales
Medium Neutral Citation: Director of Public Prosecutions v Reynolds [2012] NSWLC 10 Hearing dates: 16/10/2012 Decision date: 24 October 2012 Jurisdiction: Criminal Before: Magistrate van Zuylen Decision: See [23]-[26]
Catchwords: CRIMINAL LAW - sentence - steal property of employer - theft of fuel by tanker driver - multiple offences carried out over period of several months - offences part of plan by group of employees - systematic dishonesty and substantial breach of trust - importance of general deterrence - no sentence other than imprisonment appropriate Legislation Cited: Crimes Act 1900
Criminal Procedure Act 1986
Crimes (Sentencing Procedure) Act 1999
Local Court Act 2007
Victims Support and Rehabilitation Act 1996Cases Cited: Pearce v R (1998) 194 CLR 610
R v Doan (2000) 50 NSWLR 115
R v El-Rashid (unreported, 7/4/95, NSWCCA)
R v Finnie [2002] NSWCCA 533
R v Hawkins (1989) 45 A Crim R 430
R v Hill [2004] NSWCCA 257
R v Mears (1991) 53 A Crim R 141
R v Mille (unreported, 1/5/98 NSWCCA)
R v Mungomery (2004) 151 A Crim R 376
R v Murtaza [2001] NSWCCA 336
R v Pont (2000) 121 A Crim R 302
R v Thompson; R v Houlton (2000) 49 NSWLR 383
R v Todorovic [2008] NSWCCA 49
R v Woodman [2001] NSWCCA 310
Stevens v R [2009] NSWCCA 260
Stratford v R [2007] NSWCCA 279Category: Sentence Parties: Director of Public Prosecutions
Mark Andrew REYNOLDS (the defendant)Representation: Mr Forster (for the defendant)
Mr Baker (for the DPP)
File Number(s): 2011/408408
Judgment
The defendant Mark Andrew Reynolds pleaded guilty to 24 charges of steal property of master/employer pursuant to section 156 of the Crimes Act 1900. The defendant on 24 occasions stole a total of 232,648 litres of fuel valued at $305,534 from his employer Scott's Transport Industries Pty Ltd between 4 March 2011 and 15 August 2011 where he was employed as a fuel tanker driver.
An offence under section 156 of the Crimes Act carries a maximum sentence of 10 years. An offence under the section is a Table 1 offence under the Criminal Procedure Act 1986 where the value of the property exceeds $5,000 and a Table 2 offence under that Act where the value of the property does not exceed $5,000. All 24 charges in this matter are Table 1 matters and the maximum penalty which can be imposed is 2 years imprisonment.
There are also 24 charges of publish false and misleading material to obtain a financial advantage or cause disadvantage being a Scott's Transport Industries Pty Ltd delivery docket. These have been placed onto a Form 1 List of Additional Charges.
The offences on which I have to pass sentence are matters to which the principles stated by the Court of Criminal Appeal in R v Doan (2000) 50 NSWLR 115 apply. In that decision Grove J (Spigelman CJ, Kirby J agreeing) said at [35]:
The result of true construction of the statutory provisions in New South Wales is that, what has been described is a jurisdictional maximum and not a maximum penalty for any offence triable within that jurisdiction. In other words, where the maximum penalty is lower because the charge should impose a penalty reflecting the objective seriousness of the offence, tempered if appropriate by subjective circumstances, taking care only not to exceed the maximum jurisdictional limit. The implication of the argument of the appellant that, in lieu of prescribed maximum penalties exceeding two years imprisonment, a maximum of two years imprisonment for all offences triable summarily in the Local Court has been substituted must be rejected. As must also be rejected the corollary that a sentence of two years imprisonment should be reserved for a 'worst case'.
The defendant pleaded guilty on 5 September 2012, which was the eighth time the matter was before the Local Court. The Court file indicates that the first time the matter was before the Court it was adjourned to a DPP list day, the second, third, fourth and fifth adjournments appear to be for service of a voluminous brief and extending the period of time for reply to the large brief of evidence. The plea of guilty was entered into on the eighth appearance and I am satisfied that the plea was entered into at the earliest opportunity and there was considerable utilitarian benefit in the plea. I allow a 25% discount for the entry of the plea of guilty: R v Thompson; R v Houlton (2000) 49 NSWLR 383.
Facts
The Facts were tendered. In summary, they say that Mr Reynolds was formerly employed as a fuel tanker driver for Scott's Transport Industries Pty Ltd (Scott's) from 11/12/2006 to 22/08/2011. Scott's are subcontractors to Woolworths who operate Woolworths-Caltex petrol sites around the Sydney metropolitan area. Fuel is collected from Caltex terminals at Silverwater and Banksmeadow and delivered to Woolworth's sites. Woolworths have installed an electronic tank monitoring and gauging system at their sites to monitor all fuel storage tanks for accuracy in fuel delivered and received by them. A comprehensive audit identified 24 occasions where there were significant fuel discrepancies in deliveries undertaken by the accused. The amounts of petrol stolen range from 5,544 litres valued at $7,207 on 9 June 2011 (sequence 16) to a total of 16,712 litres valued at $22,389 stolen on 28 July 2011 (sequence 40).
On one occasion, an operating GPS on the tanker driven by the defendant, showed the tanker, on 15 August 2011, stopping from 12.13am to 12.24 am, prior to a scheduled delivery, at 148 Sunnyholt Road Blacktown, which is a Volume Plus Service Station. The 11 minute stop is long enough to discharge an 8,000 litre load of fuel into a forecourt tank. There is no other information in the Facts showing where the fuel may have been disposed.
The defendant on 24 occasions falsified Scott's delivery dockets to hide non-delivery of various fuels to Woolworths petrol sites in the Sydney metropolitan area. These 24 offences have been placed on to a Form 1 and I take these offences into account on the question of sentence.
Defendant's Explanation for the Offence and Subjective Circumstances
As is customary in the Local Court, Mr Reynolds did not give evidence in the matter. His reasons for committing the offences are contained in the Psychological Report of Dr Margarita Parrish and the written submissions of his barrister Mr Forster. Mr Forster submits, "In 2011 a group of employees of Scott's Transport came up with a 'plan' which involved a shortfall of delivery of petrol obtained from Caltex on behalf of Woolworths. The plan was formulated and a 'receiver' who is undisclosed was sourced to receive the fuel. The defendant, among others, received 50 cents per litre of fuel via a cash payment..... Mr Reynolds.... While not being the brains behind the plan was an integral player in the ongoing conduct..... at the time his financial position was not sound...... the financial reward ...was such that he could indulge in a good lifestyle and help out his friends.... he met and fell in love with a prostitute..... (and) spent large sums of cash on this lady. The relationship has now ceased." The psychologist, Dr Parrish, gives a similar explanation in her report.
Mr Reynolds is 41 years old, divorced, with a 17 year old son from that relationship, with whom he has had no contact for 5 or 6 years. He currently boards with friends at Glenmore Park. He had a stable and "normal" upbringing, with good relationships with both his parents and brothers. He had no difficulties at school and joined the army at 17 and stayed there for 5 years. Since 1995 he has worked for approximately four to five trucking companies on a full time basis. He currently works for McColls Transport and earns approximately $1400 per week. He has a credit card debt of $30,000. He pays child support of $150 per week.
The psychological report at page 5 describes Mr Reynolds as experiencing a variety of cognitive, emotional and behavioural disturbances and being overwhelmed by a sense of sadness. Dr Parrish says these symptoms are consistent with a Major Depressive Episode. His GP prescribed Zoloft, an antidepressant medication to assist him to cope more effectively with his depressive symptoms. He only took this medication for 2 weeks and had to cease due to negative side effects. Mr Reynolds told the psychologist that he became so distressed during the above period of time that in November 2011 he attempted suicide by taking 27 tablets of Temazepam, a sedative hypnotic. In her conclusion, Dr Parrish says that Mr Reynolds admitted to a very foolish mistake and appears to be genuinely remorseful for his actions and the likelihood of reoffending is minimal. Dr Parrish advises psychological/ psychiatric assistance is a matter of priority for Mr Reynolds and suggests he would benefit from treatment provided under a cognitive behavioural framework.
Mr Reynolds has a limited criminal record, he was fined $400 for an offence of false pretences in 1991, he received a section 10 good behaviour bond for 12 months in 2004 for assault, and was fined $500 for another charge of assault in 2010. However, he was on a 12 month section 9 good behaviour bond, imposed at Penrith Local Court on 24 November 2010, for contravene a domestic apprehended violence order, at the time of the charges he is currently facing sentence. The previous convictions and the current bond are aggravating factors under section 21A of the Crimes (Sentencing Procedure) Act 1999.
Matters of General Principle
Hulme J in R v Mungomery (2004) 151 A Crim R 376 said at [41], in a case involving three counts of defrauding a company:
The cases in this area also stress the importance of general deterrence. Organisations, be they business or government, cannot operate effectively without placing a good deal of trust in their employees. Opportunities for the abuse of that trust are legion and breaches are often difficult to detect. Commonly, offenders are able to continue their depredations for long periods. Often matters only come to light when the total amounts involved become too large to be overlooked. It seems to me an inevitable inference that there must be many cases where offending is never discovered - a factor also arguing for sentences which are substantial deterrents.
The following features have been identified as influencing the assessment of the gravity of the crime:
(i) The amount of money involved (R v Hawkins (1989) 45 A Crim R 430, R v Mungomery (2004) 151 A Crim R 376 at [40], R v Woodman [2001] NSWCCA 310, R v Finnie [2002] NSWCCA 533 at [59]) and whether the loss is irretrievable: R v Todorovic [2008] NSWCCA 49 at [19].
(ii) The length of time over which the offences are committed: R v Pont (2000) 121 A Crim R 302 at [74], [75], R v Mungomery.
(iii) The motive for the crime: R v Mears (1991) 53 A Crim R 141 at 145, R v Hill [2004] NSWCCA 257 at [6], R v Woodman [2001] NSWCCA 310 at [29].
(iv) The degree of planning and sophistication: R v Mille (unreported, 1/5/98, NSWCCA), R v Pont (2000) 121 A Crim R 302 at [43]-[44], R v Murtaza [2001] NSWCCA 336 at [15], Stevens v R [2009] NSWCCA 260 at [59], [78].
(v) An accompanying breach of trust: R v El-Rashid (unreported, 7/4/95, NSWCCA), R v Pont, R v Hawkins.
Remarks and Conclusion
The Court takes into account the extremely large value of property stolen, being 232,648 litres of petrol valued at $305,534 taken over a period of 5 months and 11 days. Information about the defendant's personal financial circumstances suggest there is little to no prospect of the victim receiving compensation, even though Mr Forster submits that Mr Reynolds is prepared to pay compensation. The motive for stealing the property was, as set out in the submissions of Mr Forster, greed rather than need. There was a substantial degree of planning required to dispose of the stolen petrol, the stated involvement of other people to carry out the crime, and the falsification of delivery dockets to cover up the theft. There was systematic dishonesty and a substantial breach of trust involved.
The Court must take into account the 5 principal factors to be taken into account in sentencing, general deterrence, personal deterrence, rehabilitation, retribution and protection of society.
The Court also takes into account the defendant's plea of guilty and the utilitarian benefit of the plea and evidence of contrition and remorse. It also takes into account the information in the psychological report of his major depressive episode and attempt at self harm. He has had tendered on his behalf, a reference from Shaun Wilson, who has known him since November 2011 and has, "found him to be a reliable and trustworthy person".
The Pre Sentence Report assesses Mr Reynolds as suitable for intervention by the Service and suitable for community service. In his submissions, Mr Forster asks the Court to consider alternatives to full time custody such as an Intensive Correction Order and that sending him into full time custody reduces the chance of compensation being paid.
When the Court takes into account all the matters previously referred to and again stresses the particular circumstances of this particular case, the great need for general deterrence in matters of this type, the large amount of money stolen, the fact he was on a good behaviour bond, there is no other alternative appropriate other than a sentence of imprisonment. I am not prepared to consider suspending the sentence, or consider home detention or an intensive correction order. Also, due to the length of the prison sentence that I consider appropriate for the criminality involved, Mr Reynolds is ineligible for these alternatives in any event.
This case involves multiple offences and I am required to apply the totality principle. After a 25% discount for the plea of guilty, and consideration of the seriousness of the offences, I set a prison sentence for each of the 24 offences of 18 months. I then go on to consider matters of cumulation or concurrency: Pearce v R (1998) 194 CLR 610 at [45]. When carrying out this task I am required to have regard to the fact that the defendant is being sentenced for multiple offences and ensure that the ultimate sentence is appropriate to the totality of his offending and his personal circumstances: Stratford v R [2007] NSWCCA 279 at [29].
I am of the view that there must be cumulation because of the seriousness of the offending and number of offences.
I make a finding of special circumstances because of the defendant's depressive episode, this will be his first sentence of imprisonment, there will be cumulation of the sentences and he has been assessed by the Probation Service as suitable for intervention to assist Mr Reynolds with psychological counselling to help him with low self esteem and grief and loss issues, regarding lack of contact with his son.
For the 8 offences of steal property as clerk/servant, sequences 1, 3, 6, 8, 10, 12, 14 and 16, you are sentenced to a term of imprisonment of 18 months, I set a non-parole period of 12 months to commence on 24 October 2012 and expire on 23 October 2013. For the next 8 offences of steal property as clerk/servant, sequences 18, 20, 22, 24, 26, 28, 30 and 32, I set a term of imprisonment of 18 months, I set a non-parole period of 12 months to commence on 24 July 2013 and expire on 23 July 2014. For the final 8 offences of steal property as clerk/servant, sequences 34, 36, 38, 40, 42, 44, 46 and 48, I set a total term of 18 months, I set a non-parole period of 6 months to commence on 24 April 2014 and expire on 23 October 2014. The total effect of all these sentences is to set a total term of imprisonment of 3 years with a non-parole period of 2 years to commence from today, 24 October 2012. Mr Reynolds will be released to parole on 23 October 2014, and be on parole for a further 12 months. I order that he be subject to supervision on parole.
In regard to the breach of bond for the charge of breach of an apprehended domestic violence order, I note that the offence occurred on 31 August 2010 and the sentence imposed of a 12 month good behaviour bond under section 9 of the Crimes (Sentencing Procedure) Act commenced on 24 November 2010 and expired on 23 November 2011. I am of the view that the seriousness of the breach of the bond is so great, that the section 9 bond must be revoked and that there is no other alternative other than a sentence of full time imprisonment. I impose a fixed term of imprisonment of 2 months. It shall commence on 24 October 2012 and expire on 23 December 2012. The sentence shall be concurrent with the other prison sentences imposed.
The Prosecution sought compensation in the sum of $305,534 being the total loss to Scott's Transport Industries. On 24 October 2012, I ordered compensation in the same amount. It has come to my attention that I do not have the power to award compensation of that amount. Section 77C of the Victims Support and Rehabilitation Act 1996 says a court may not give a direction for compensation for an amount in excess of the maximum amount that, in its civil jurisdiction, the court is empowered to award in proceedings for the recovery of a debt. Section 29 of the Local Court Act 2007 says the jurisdictional limit of the Court is $100,000. Therefore, the maximum compensation I can award is $100,000. I reopened the proceedings on 25 October 2012 under section 43 of the Crimes (Sentencing Procedure) Act at Parramatta Local Court to correct the compensation order I made contrary to law. Mr Baker generously attended at very short notice and mentioned on behalf of Mr Forster that he consented to the reopening in the absence of the defendant and both lawyers agreed that the maximum jurisdictional amount that can be awarded in the Local Court is $100,000. Therefore, I order the defendant to pay compensation to Scott's Transport Industries Pty Ltd the sum of $100,000.
There will be court costs imposed of $83 for each of the 24 separate charges.
Magistrate van Zuylen
Parramatta Local Court
24 and 25 October 2012
Decision last updated: 26 October 2012
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