R v Be

[2018] ACTSC 101

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v BE

Citation:

[2018] ACTSC 101

Hearing Dates:

10 November 2017, 26 and 27 February 2018

DecisionDate:

1 March 2018

Before:

Mossop J

Decision:

See [53]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – Commonwealth offences – obtaining a financial advantage from another person by deception – falsified invoices – circumstances leading to offending – offender diagnosed with depression, anxiety and stress – early plea of guilty – provided assistance to authorities to facilitate administration of justice – monies repaid – general deterrence – consideration of s 16A(2) of the Crimes Act 1914 (Cth) – period of imprisonment suspended after four months – recognizance release order

Legislation Cited:

Crimes Act 1914 (Cth), ss 16A(1), 16A(2), 16A(2)(k), 16A(2)(p), 17A, 20AB

Criminal Code Act 1995 (Cth), ss 134.2, 134.2(1)
Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 111

Cases Cited:

Barbaro v The Queen [2014] HCA 2; 253 CLR 58

Hayes v The Queen [2014] VSCA 309
R v Allred [2015] ACTSC 327
R v Combo [2015] WASCA 34
R v Herrera (Unreported, NSW Criminal Court of Appeal, Hunt CJ at CL, Smart and Grove JJ, 6 June 1997).
R v Host [2015] WASCA 23; 248 A Crim R 352
R v Hurst [2005] QCA 25
R v Ngerengere(No 2) [2016] ACTSC 155
R v Ngerengere(No 3) [2016] ACTSC 299
R v Willis (Unreported, District Court of Queensland, Martin J,
8 December 2015)
R v Wright (1994) 74 A Crim R 152

Parties:

The Queen (Crown)

BE (Defendant)

Representation:

Counsel

P Botros (Crown)

K Archer (Defendant)

Solicitors

Commonwealth Director of Public Prosecutions (Crown)

Darryl Perkins Solicitors (Respondent)

File Number:

SCC 206 of 2017

MOSSOP J:

Introduction

1. BE has pleaded guilty to the offence of obtaining a financial advantage from another person by deception. The person from whom he obtained a financial advantage is the Australian Sports Commission (“ASC”), a Commonwealth entity. The conduct was contrary to s 134.2(1) of the Criminal Code Act 1995 (Cth). The maximum penalty for this offence is imprisonment of up to 10 years.

Facts

1. The facts are agreed.  The offender commenced employment as Assistant Director of Capital Works at the ASC on 1 October 2013.  He was required as part of his job to project manage capital and minor works programs.  This included the negotiation and coordination of external service providers and managing the invoicing process to ensure providers were paid.

1. He had a financial delegation approval of $100,000.  Payments greater than $5000 required a purchase order to be approved by two staff members.  When the ASC contracted with a new supplier, the supplier would be added to the ASC financial system through the completion of a “Request for New/Amended Supplier” form.  When an invoice was received from the supplier, a financial delegate had to approve it.

1. The offender was the sole director and shareholder of a company called [Redacted for legal reasons].  That company was…