R v Benbow

[1991] TASSC 192

Serial No B78/1991
List “B”

COURT:  SUPREME COURT OF TASMANIA

CITATION:              R v Benbow [1991] TASSC 192; B78/1991

PARTIES:  R
  v
  BENBOW, Gayle Maree

FILE NO:  270/1991
DELIVERED ON:  23 December 1991
JUDGMENT OF:  Slicer J
CATCHWORDS:

Sentence – Computer fraud.

Judgment Number:  B78/1991
Number of paragraphs:  11

Serial No B78/1991
File No 270/1991

THE QUEEN v GAYLE MAREE BENBOW

REASONS FOR JUDGMENT  SLICER J

23 December 1991

1. Gayle Maree Benbow has pleaded guilty to thirty counts of computer related fraud contrary to s257 of the Criminal Code. The crimes were committed over a period of eleven months and resulted in a dishonest gain of $39,077.00. The frauds were perpetrated by Mrs Benbow during the course of her employment with the Savings and Loans Credit Union. In September 1990 she caused the creation, by means of a computer, of five unauthorised accounts in the names of relatives. She then proceeded to operate those accounts, mixing the moneys with her own in two authorised accounts, one in her own name, the other held jointly with her husband. At the end of eleven months she had effected the unauthorised transfer of $39,077.00 to her own use. On 15 July 1991 she attempted to regularise the scheme by opening an unauthorised loan account in her own name. I accept her claim that she intended to establish a line of credit of $40,000.00, but due to an error, the amount of $50,000.00 was raised within the records. Mrs Benbow then transferred moneys from the loan account to the initial unauthorised accounts, so that at the end of a series of transactions, the initial unauthorised accounts contained nil balances and a new loan account in the name of Gayle Benbow contained a debit in fact totalling $39,077.00. That loan was expressed to be at an interest rate of 19.4% repayable over a period of five years.

1. The transactions were relatively complex, indicative of planning and could only have been effected by a person holding a position of trust with the Credit Union. The pattern of withdrawals was consistent, substantial sums of money being withdrawn on an almost weekly basis.

1. The motive was for personal gain. It could not be said that Mrs Benbow was suffering from non self–inflicted financial hardship. Both she and her husband were in employment and during a seven week period their combined salary of $4,232.00 was banked in the legitimate family accounts with the Credit Union. During the same period $10,000.00 was fraudulently transferred.

1. The moneys were spent on furniture ($12,000.00), motor vehicle repairs following two accidents ($10,000.00) and the remaining sums on personal expenditure such as restaurants, clothing and other items.

1. The psychiatric report of Dr Ian Sale, tendered on her behalf, indicated that her loss of control over the spending of money had arisen from a general depression caused by absence from her family and an inability to confront reality. As the report indicated, "She had assumed the financial decision making in the household since moving from Sydney, and she was able to conceal the increasing financial difficulties from her husband". Her reckless spending pattern led her to devise the scheme of defrauding her employer. I was informed by her counsel that an additional motive in her spending of moneys was the provision of luxuries for her husband (presents, restaurant meals, etc) to compensate for her inability to have a child, the only prospect of child bearing being through an IVF programme.

1. I accept the above as explaining the basis on which the criminal conduct commenced and continued.

FACTORS OF MITIGATION

1. The following matters were put as going to mitigation:

(1)The offender is aged 22 and is married to a member of the Royal Australian Navy. She has not previously been in trouble. She is of good character as is indicated in a reference from a magistrate from the State of New South Wales.

(2)The objective harm to the Credit Union has been lessened. A sum of $5,400.00 has been recovered by the sale of the items purchased with the moneys misappropriated, and a further sum of $3,400.00 can be raised in a similar manner. Her family, who have continued to be supportive of her, have arranged for the provision of $10,000.00 to be paid in partial compensation for the loss. That sum will be deducted from any inheritance to which she becomes entitled. In addition, arrangements have been made, in the form of a binding agreement, for the payment of 75% of future net wages from any employment of the offender, such moneys to be paid until the debt is extinguished. Thus the actual loss suffered to date is $20,271.72. I am told that counsel for the Crown made certain enquiries which led to these proposals being considered and accepted by the insurance company which bore the loss occasioned by the conduct of the offender.

(3)The methodology was not sophisticated and was likely to be discovered, and therefore the principles of general deterrence should play little or no part in the determination of penalty. This submission ran counter to a further proposition, namely that her plea of guilty to a computer–related offence could go as a mitigating factor in that it saved the community moneys in further investigation and prosecution.

That submission is weakened by a further proposition advanced by counsel to the effect that I should take into account her plea of guilty as saving public expense. If the method was unsophisticated and easily detectable, the plea of guilty would not come within the characterisation of one where, but for the plea, considerable public resources would be needed to ensure a conviction. In any event, I do not take this matter into account as a mitigating factor. The offences contained a degree of sophistication and whatever ease there was in the method arose from the position of trust held by the offender.

(4)It was contended that the plea of guilty should be regarded as a substantial mitigating factor. The court was told that a plea of guilty was indicated at an early stage and consequently there was a saving of public moneys at the investigative and determinative stages of the criminal justice process. Counsel for the Crown estimated the length of any trial to be one week. It was further contended that the sentence should reflect the fact that computer related crimes would be difficult to prove and that the plea of guilty at an early stage was beneficial to the system. I have difficulty in accepting that latter proposition. Taken to its logical conclusion, it would mean that the more complex the crime the greater the mitigating factor should be the plea of guilty. It would also mean that "white collar" crime which usually reflects a degree of sophistication and guile should be approached differently than one involving a youth who performs a common place burglary.

It may be that a confession and plea should, on some occasions, be reflected in the sentencing process, eg where a previously undiscovered crime is admitted or where the very nature of the case makes conviction unlikely in the absence of a plea. I would adopt the comments expressed in the joint judgment of McInerney and Crockett JJ in R v Gray [1977] VR 225 where they said, at p231:

"It is, of course, beyond argument that contrition is a factor properly to be considered in determining what measure of clemency should be extended to an accused person. In one sense it forms an aspect of the reformation component in the sentence. But that is not to say that repentance cannot be present when, or because, the accused has chosen to contest the charge made against him; although remorse will, doubtless, be more readily established in cases where a plea of guilty has been entered.

On the other hand, a simple confession of guilt cannot, by its own force, operate so as to command that the sentence be less than that which it would have been had there been no such confession. In so far as De Haan's Case suggests the contrary, the proposition is, we think, too broadly stated. Cf the commentary upon R v Ramsey, [1969] Crim LR 668. Nor, in our opinion, is the reduction of a sentence following upon a plea of guilty necessarily to be dependent upon that plea being the product of remorse – either wholly or in part."

In this case it is not necessary for me to consider the matters raised in The Queen v Shannon (1979) 21 SASR 442 because I will pay regard to the confession and plea as evidencing remorse and as forming part of the process of rehabilitation. This is not a case where the plea is made without contrition. Further, given the full confession made by the offender on 25 July 1991 (within nine days of the commission of the last crime), the plea of guilty could be more properly seen as an acceptance that conviction was inevitable.

(5)There is one circumstance upon which I place great significance. Before detection, Mrs Benbow opened a loan account in her own name. Although unauthorised and criminal, the intention was to assign the debt into her own name and as such it represented an acknowledgment of her responsibility and an attempt to repay the misappropriated moneys. I am told that she had committed herself to repay the moneys by fortnightly instalments of $350.00 and had structured the loan accordingly. I regard her acceptance of responsibility and the planned repayment, not as being an indication of further deceit, but as a substantial mitigating factor, but for which a different penalty would have been imposed.

1. I do not, however, regard this case as being one in which a non–custodial sentence would be warranted. In Chaloner v R (1990) 49 A Crim R 370 the New South Wales Court of Criminal Appeal, having found error in the sentencing process, was able to "reconsider the matter for itself". As such, it is a case involving the exercise of discretion, and in any event, contained different factual circumstances.

1. Having taken into account the mitigating factors and weighing them against the amount of money taken, the time span of the offences and the position of trust, the appropriate penalty, in my opinion, is a period of imprisonment of fifteen months, such sentence to commence from 12 December 1991.

1. I propose to suspend the operation of a portion of that sentence. In doing so, I take into account the following matters:

–There is little likelihood that Mrs Benbow will re–offend.

–A lengthy period of actual incarceration could impede her rehabilitation.

–She is young, and with the support of her husband and family, should be able to make a fresh start to her life.

–She is now conscious of the nature of her psychological distress and has taken some steps to overcome those problems.

–There will be some opportunity for her to recommence the payment of restitution.

–The requirement of general deterrence is met by the imposition of the sentence and will not be weakened by its partial suspension, which takes into account particular characteristics of the offender.

1. Accordingly, the operation of the last nine months of the sentence will be suspended on condition that Mrs Benbow enter into a bond to be of good behaviour for a period of three years. It is a condition of that bond that she commit no crime of dishonesty during the period of its operation. The bond is to take effect from the day of release from prison. I do not regard it necessary for there to be a supervision order.