R v Ayfandis
[2023] ACTSC 94
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Ayfandis |
Citation: | [2023] ACTSC 94 |
Hearing Date: | 27 April 2023 |
DecisionDate: | 27 April 2023 |
Before: | Berman AJ |
Decision: | See [41] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – theft of ICT equipment from workplace – sentence of imprisonment |
Legislation Cited: | Crimes Act 1900 (ACT) |
Cases Cited: | Chia v R [2018] WASCA 103 Mooney v R [2018] ACTCA 24 R v Mynott [2020] ACTSC 3 |
Parties: | Commonwealth Director of Public Prosecutions Con Ayfandis (Offender) |
Representation: | Counsel E Gordon (DPP) A Doig (Offender) |
| Solicitors Commonwealth Director of Public Prosecutions Capon & Hubert Lawyers (Offender) | |
File Number: | SCC 14 of 2023 |
Berman AJ:
The facts
1․One of the ways in which judges assess the objective seriousness of any offence is to consider the length of time over which the offending took place. In the present matter before me the offender, Con Ayfandis, engaged in ongoing acts of dishonesty over more than three and half years and there is no suggestion that he gave up his offending voluntarily. It only stopped when he was arrested and charged.
2․He was employed by Services Australia which had entered into arrangements with other Commonwealth government agencies for the shared provision of Information and Communications Technology (ICT) equipment. At the time of his arrest, he was based at the ICT Data Warehouse in Hume. It was his job to deploy ICT equipment and to return it to the warehouse when it was no longer needed.
3․Between about 2 May 2017 and 19 January 2021 he removed ICT equipment including:
a) laptops;
b) detachable tablets;
c) computer hard drives;
d) mobile phones;
e) docking stations;
f) keyboards;
g) printers;
h) tablets;
i) one television; and
j) lots of cables and chargers.
4․Some of that equipment was sold on Gumtree or Facebook Marketplace.
5․Some was supplied to his fiancée in the Philippines for use by her, her relatives, and her associates or so that she could sell it, some he used personally and some, indeed a large quantity of equipment, was found at his home when it was searched pursuant to a search warrant.
6․The scale of his offending is perhaps best illustrated by noting four figures:
a) there were 453 items of Commonwealth property discovered during the search;
b) that property was valued at $98,661.47;
c)he sold, or had in his possession at the time of his arrest, more than 270 laptops as well as a significant number he sold to a man called Steve and others whose names we do not know; and
d)something I have already mentioned, his offending went on over more than three and a half years.
7․The offender now faces sentence for three offences to which he has pleaded guilty. The maximum penalty for all three offences is 10 years imprisonment. The Territory offences also include a maximum penalty of 1000 penalty units.
8․There is a charge of theft under the Criminal Code Act 1995 (Cth). That relates to the property found at his home, as well some of the equipment sold by him or sent to his fiancée in the Philippines.
9․There are two charges of obtaining financial advantage by deception under the Criminal Code 2002 (ACT) relating to two transactions with a dealer in second hand ICT equipment where the offender represented to the purchaser that he had the authority to sell the property the subject of sale. The first of those counts relates to the sale of 29 laptops for $6,700 and the second relates to the sale of 13 laptops for $2,275.
10․The offender pleaded guilty at a very early stage, indeed at the first mention of this matter in the Magistrates Court. Accordingly, the sentences I impose upon him will be approximately 25% less than they would otherwise have been.
11․As well as pleading guilty, the offender assisted the authorities by advising them that a package of laptops was on its way to the Philippines and by arranging the diversion of that package so that it was ultimately returned to the offender’s employer. His admissions during his record of interview must be acknowledged as well, together with his efforts to make good the loss he has caused. In that regard, the offender has paid to the Commonwealth all he has been asked to pay, but that does not cover the entire loss to the Commonwealth for which he was responsible.
Subjective circumstances
12․The offender was born in Greece, coming to Australia with his family in 1973 when he was five years old. He completed Year 12 in Sydney after which he had a number of jobs in sales, banking and information technology. He completed a diploma in information technology and administration at the Canberra Institute of Technology. He worked for a sports betting company for a few years and commenced employment with Services Australia in 2003. He held a position with them until his offending was discovered.
13․He now works on a permanent part-time basis with a bus company. It is a job he enjoys. He has a consistently good work record which is something he is entitled to be proud of.
14․He has no criminal history and apart from these offences he is a man of otherwise good character. He spends a lot of time by himself, telling the author of the pre-sentence report that he has no friends, something which was his own choice. He has never used drugs and only consumed alcohol twice, drinking a single beer on each occasion.
15․The offender relies on three references, one from his sister and two from his neighbours one of whom, coincidentally, worked for the same Commonwealth government department and was his support person when he was interviewed regarding these offences. I accept that the offender is helpful to his neighbours and has good relationships with his family and his fiancée. He is in no way a risk to anyone. That said, I do not accept something asserted in one of the references which is that the equipment seen by one neighbour was “outdated” or that the offender simply wanted to “reuse IT equipment which was being thrown out”.
Autism
16․When interviewed by the author of the pre-sentence report, the offender told her that he had not had any prior mental health diagnosis, treatments or prescriptions. However, when interviewed by a psychologist for the purposes of obtaining a report for today’s sentence proceeding, she diagnosed him with Autism Spectrum Disorder Level 1. The offender was himself unaware that he was on the spectrum until such diagnosis.
17․The psychologist’s report has been of assistance to me, and I have no hesitation in accepting the accuracy of her diagnosis. However, although the offender has been diagnosed with Autism Spectrum Disorder Level 1, there is no clear evidence that his moral culpability for this lengthy period of offending is thereby affected. The most the psychologist says is that the offenders “autistic decision-making and judgement has influenced [his] behaviour choices”. The burden of proving the mitigating factor of a reduction in moral culpability is on the offender. That statement by the psychologist is not enough to persuade me that the offender was not fully aware of the wrongfulness of his actions. Nor does his recent diagnosis provide any reason that there should be any substantial amelioration of the need to impose a sentence reflecting the need for general deterrence, a subject I will return to later.
18․On the other hand, I am satisfied that the offenders time in custody would be harder than would otherwise be the case because of his mental condition. Prisons are terrible places at the best of times, but the offender will have the added problem of being at risk of becoming a target for other prisoners due to his neurodiverse behaviours. He is prone to misinterpret what people say to him and he understands things in a very literal way. The potential for him annoying a fellow prisoner is obvious. Despite him having “some ability to manage changes to his routine” as identified by the psychologist, he will find it difficult to maintain a sense of routine and order when, to a large extent, he is not in control of what he does in gaol.
Consideration
19․His motivation for committing these offences is unclear. He told the author of the pre-sentence report that he is able to meet his financial commitments, he had no problems with gambling or debts, and he denied that his offending had been financially motivated.
20․In the pre-sentence report it is recorded that “Mr Ayfandis claimed he had intended to take the “end-of-life” devices from work and send them to the Philippines in order to assist children with study”. The offender told a similar story to the psychologist, Ms Morris. He told her that he thought he would send obsolete laptops to the Philippines for children to do their studies.
21․But that is simply not a true explanation for what motivated him. WhatsApp and SMS messages between the offender and his fiancée in the Philippines reveal that he sent laptops to her, for her own use, for the use of her friends and associates, and so she could sell them. Despite the claim that the laptops were at the end of their lives, some of the property found at his home was brand-new and in unopened boxes. I note also that when interviewed by police he told them that he had sold “5 or 6” laptops in Australia, a figure which he must have well known was untrue.
22․In the absence of any other explanation, I conclude that the offences were committed for personal gain, whether to gain a financial benefit for himself or his fiancé.
23․He has been identified as having a low risk of reoffending and has paid money to the Commonwealth in order to cover the profit he made from the Territory offences. The property found at his home has been returned to its rightful owner. The offender even paid the shipping costs to return the package he told the AFP about. But the equipment sent to the Philippines, including something in the order of 42 laptops has not been recovered. Nor have the laptops he sold to Steve or others whose names we do not know been recovered either.
24․I accept that the offender is unlikely to offend again. His lack of prior convictions is particularly important here. He is not a young man who has just not had time to develop a criminal history. He is a mature adult who, if it was in his underlying character to commit criminal offences regularly, would have done so on more occasions than the present.
25․The question as to whether the offender is truly remorseful and has taken responsibility for his offending, is not an easy one to answer. Certainly, his very early plea of guilty, his assistance in having one package return from the Philippines, and his payment of money to the Commonwealth suggest remorse. However, his repeated claim that what motivated him was a desire to provide obsolete equipment to children in the Philippines to assist with their studies, which is inconsistent with the Territory offences, with the messages exchanged with his fiancée, and with some of the equipment in his home being new and unopened, suggests that even now the offender is not prepared to be honest as to why he committed these offences. In such circumstances, I will conclude that he is not truly remorseful and that he has failed to take full responsibility for his offending.
26․In submissions made on his behalf it is suggested that the diagnosis of Autism Spectrum Disorder may ameliorate concerns raised as to the offender’s failure to accept responsibility. Nowhere in the material before me is there any explanation as to why the offender’s persistent misstatement of his true motivation should be excused on the basis of his diagnosis.
27․I return now to the issue of general deterrence. Despite his recent diagnosis it remains of importance in this sentencing exercise. He occupied a position of trust within the Commonwealth and abused that position over a lengthy period and on many occasions. Many other people are in similar positions and it must be made clear to them that if they too breach the trust reposed in them by stealing from their employer significant sentences will be imposed on them. Whilst offenders with a mental illness or disorder are often found to be inappropriate vehicles to impose a sentence which reflects a full measure of general deterrence, that is not universally the case. In the present case the diagnosis of Autism Spectrum Disorder Level 1 was only made in preparation for the sentencing proceedings when the offender was in his 50s. Level 1 is the mildest form of autism which explains the late diagnosis. For these reasons the reduction in sentence on account of the reduced relevance of general deterrence will be a modest one.
28․The offender is entitled to rely on the fact that there was a significant delay between when the offences were detected and his first appearance in the Magistrates Court. He has been left in a state of uncertainty for a significant period of time. The prospect of him going to gaol must have been weighing heavily upon him since his home was searched more than two years ago.
29․He is also entitled to rely on the fact that in that time he has not offended again or breached his bail in any way. That is consistent with my view as to the unlikelihood that he will re-offend in the future.
30․Mr Doig for the offender relied on 2 cases where offenders have been sentenced in this jurisdiction to sentences of other than full time custody for broadly similar offences.
31․In R v Mynott [2020] ACTSC 3 the offender pleaded guilty to offences of obtaining financial advantage by deception and unlawful possession of stolen property. The total amount involved was much less than in the present case and the offending occurred over only a six month period. The offender’s subjective factors too were very different to the those of the present offender and rehabilitation was an important factor in the decision of Elkaim J to impose an Intensive Corrections Order.
32․In R v McGowan [2015] ACTSC 320 the amount involved was closer to that in the present case, but the offender was in very poor physical health requiring amongst other things that she wear a colostomy bag, she was in chronic pain and she had attempted suicide twice. In such circumstances the decision of Robinson AJ to impose a sentence of periodic detention is not surprising.
33․While I will of course take those cases into account, it is no criticism of Mr Doig to say that the circumstances of those cases are very different from the one I am dealing with today.
34․A similar thing can be said about the two cases relied on by the prosecution, Mooney v R [2018] ACTCA 24 and Chia v R [2018] WASCA 103, as was acknowledged in the Crown’s written submissions.
35․The Crown asks me to impose sentences which are partially cumulative. The criminality in taking the property is separate to the criminality in selling it. But I do not regard the extra criminality involved in selling some laptops for relatively modest sums to require any accumulation given the seriousness of the ongoing theft of property covered by the first count. Accordingly, I will impose fixed terms of imprisonment on the Territory offences which are totally subsumed by the sentence for the Commonwealth matter.
36․As I trust I have made clear, the offender’s crimes were serious, in particular the charge relating to the theft of a large quantity of IT equipment. Section 16A(1) of the Crimes Act 1914 (Cth) requires me to impose a sentence which is of a severity appropriate in all the circumstances of the offence, and s 16(2)(k) requires that the offender is adequately punished for his crimes.
37․I am satisfied that in order to comply with those requirements I must impose a sentence of imprisonment upon the offender. I note the provisions of s 17A of the Crimes Act 1914 (Cth) and s 10 of the Crimes (Sentencing) Act 2005 (ACT) but I consider that no sentence other than one of imprisonment is appropriate in all the circumstances of this case. That much was conceded by Mr Doig.
38․I have decided on the length of that sentence and the question then becomes as to how that sentence should be served.
39․Mr Doig urged me to impose a form of custodial sentence which would see the offender serve no time in custody, but I consider the offending to be of such seriousness that nothing less than a sentence of full-time custody is appropriate, even giving full weight to the mitigating factors on which the offender is entitled to rely.
40․The offender committed many separate criminal acts over more than three and a half years. He only stopped what he was doing because it was discovered what he had been doing. He stole a considerable quantity of property and in doing so he breached the position of trust in which had been placed by his employer. The principles of sentencing require a sentence which properly reflects the circumstances of his offending and that he be adequately punished for what he has done. There is a need to deter others who might be tempted to commit offences such as these.
Orders
41․I impose the following sentence:
1.On Counts 2 and 3 of obtain a financial advantage by deception the offender is sentenced to imprisonment for four months to date from today and to end on 26 August 2023.
2.On Count 1 of dishonestly appropriate property the offender is convicted and sentenced to nine months’ imprisonment commencing today and ending on 26 January 2024 with a recognizance release order permitting his release after serving six months’ imprisonment with security of $100, without surety, and on the condition that he be of good behaviour for a period of three months from the date of his release.
| I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Berman. Associate: Date: |
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