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) Crimes Act 1914 (Cth) ss 16, 16A, 17A Crimes (Sentencing) Act 2005 (ACT) s 10
Cases Cited:	Chia v R [2018] WASCA 103 Mooney v R [2018] ACTCA 24 R v McGowan [2015] ACTSC 320 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…

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 R v Ayfandis

Details

AGLC: R v Ayfandis [2023] ACTSC 94
Case: [2023] ACTSC 94
Decision Date

CaseChat Overview and Summary

The case of R v Ayfandis before the Supreme Court of the Australian Capital Territory saw the offender, Con Ayfandis, charged with theft and obtaining financial advantage by deception. Ayfandis had pilfered Information and Communications Technology (ICT) equipment from his workplace over a period of more than three and a half years, selling some of it and sending other items to the Philippines. The court was tasked with determining the appropriate sentence, considering factors such as the seriousness of the crime, the offender's subjective circumstances, and the principles of sentencing.

The legal issues before the court included assessing the objective seriousness of the offending, evaluating the subjective circumstances of the offender, and determining the appropriate sentence that aligns with the principles of sentencing, particularly deterrence and punishment. The court needed to balance the mitigating factors presented, such as the offender's early guilty plea and his efforts to mitigate the harm caused, against the gravity of the offences.

Berman AJ concluded that Ayfandis's crimes were serious, marked by the large-scale theft of ICT equipment over an extended period, justifying a sentence of imprisonment. Despite mitigating factors such as Ayfandis's early guilty plea, his cooperation with authorities, and his lack of prior criminal history, the court found that these did not sufficiently mitigate the need for a substantial custodial sentence. The court also considered the offender's recently diagnosed Autism Spectrum Disorder, which, while impacting his capacity to manage prison conditions, did not significantly reduce his moral culpability. The court determined that a sentence of imprisonment was necessary to adequately punish the offender and to deter others from similar misconduct.

The final orders included a sentence of nine months' imprisonment for the charge of dishonestly appropriating property, with a non-parole period of six months. The sentences for the counts of obtaining financial advantage by deception were set at four months, to be served concurrently.

Orders