R v Cook
[2018] ACTSC 302
•31 October 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Cook |
Citation: | [2018] ACTSC 302 |
Hearing Date: | 31 October 2018 |
DecisionDate: | 31 October 2018 |
Before: | Elkaim J |
Decision: | See [26] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – obtaining property by deception |
Legislation Cited: | Criminal Code 2002 (ACT) s 326 Crimes (Sentencing) Act 2005 (ACT) ss 6 and 7 |
Cases Cited: | R v Lancaster [2018] ACTCA 285 |
Parties: | The Queen (Crown) Brett James Cook (Offender) |
Representation: | Counsel Ms C Murthurajah (Crown) Ms C Carnell (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Paul Edmonds and Associates (Offender) | |
File Number: | SCC 245 of 2018 |
ELKAIM J:
On 14 September 2018, the offender pleaded guilty to two charges of obtaining property by deception contrary to s 326 of the Criminal Code 2002 (ACT).
The offence carries a maximum penalty of 10 years’ imprisonment and/or a fine of $150,000.
The victim in this matter lives in the Australian Capital Territory suburb of O’Connor. In 2011 the offender approached the victim and offered to paint her house number on the curb outside her home. She accepted. Thereafter the offender performed small jobs around the victim’s home for which he would be paid correspondingly small amounts of money.
While performing the assorted tasks the offender told the victim about his personal circumstances, including details about his two teenage sons. He told her that he was struggling financially and that this had led him to perform the handyman tasks.
In September 2016, the offender told the victim that he was suffering from testicular cancer and needed money for medication. An offer to show his testicles to the victim and her husband was declined. The offender asked for $200 which was provided to him in cash.
The offender soon made other requests for money, again for medication but also to enable his sons to attend school excursions. The sum of $1,270 was paid for these reasons.
On 3 March 2017 the offender asked for, and received, $300 in cash from the victim. He then made further requests totalling $3,750 which was provided in a number of payments through March 2017.
At the very end of March 2017 more cash was requested and, again, provided. The requests continued into April when the money was sought for bathroom repairs carried out at the victim’s home. The sum of $4,300 was paid over.
On 25 May 2017, the offender showed the victim a letter from the Australian Taxation Office stating that he owed $3,500 as a tax debt. The victim baulked at paying over this sum. However, the offender spun a yarn about an apartment which he could sell as security for any monies paid on his behalf. The money was provided on the condition that it was repaid when the apartment was sold.
Requests for money continued with assorted excuses provided for the need for the money. These even included telling the victim that the offender’s son had been severely injured whilst playing rugby league in Brisbane and was in the Children’s Hospital.
Further monies were paid over, all purportedly to be repaid under the so-called loan agreement that existed between the offender and the victim. Monies were paid for all sorts of reasons including repairs to motor vehicles. At one stage he told the victim that he had suffered a minor stroke.
In August 2017 the offender told the victim that he had sold his apartment and that the proceeds of the sale would be available at the end of September 2017. He would then repay her all the monies owed. Pending this occurring, further money was paid over so that by 24 August 2017 a total of $98,300 had been paid.
On 22 September 2017, the victim sent a text message to the offender requesting payment. She did not receive a reply. He also did not respond to telephone calls. The victim then contacted the police. Police enquiries revealed that the victim had been told, in essence, a pack of lies about numerous things including the injury to the offender’s son and the existence of an apartment. In short, it transpired that the offender was simply a crook taking advantage of a benevolent victim. His conduct also involved a significant breach of trust.
In her Victim Impact Statement the victim has set out the effects on her and her family. They extend to not being able to help her son and daughter-in-law and to her and her husband, who are both now 68 years of age, having to continue to work for longer than they had intended. She also refers to the psychological impact that she has suffered and the effects on her work that have resulted. There has also been a further financial loss because she has had to incur additional fees in pursuit of her doctoral thesis. The thesis itself has been delayed. She concludes her statement with these words: “However, I have felt quite profound humiliation, guilt and regret”.
It was effectively submitted on behalf of the offender that he should gain some benefit because his victim could have suffered more. Instead of a person in a relatively secure financial position she could have been in dire straits herself. I reject that submission. I see no aspect of mitigation in a submission that says the victim could have been worse off.
I was also referred to R v Lancaster [2018] ACTSC 285 (Lancaster) to perhaps highlight comparable aspects arising from that case. In my view, there are very few comparable aspects other than both cases involving the same offence. Ms Lancaster had no criminal record and had very compelling subjective circumstances. As will be seen below the offender’s history is not without tragic elements, but I do not regard them especially as they are uncorroborated as comparable to that of Lancaster.
The offender was born in 1965. He is of Aboriginal descent. He apparently had an unhappy childhood. His parents separated when he was about five years of age and he lived with his grandmother for some time. He told the Pre-Sentence Report authors that he tried to hang himself when he was 12 years old after which he was placed in a youth refuge before returning to his family and living in a caravan. He left home when he was 16 years old. He had a close relationship with his mother but she died in 2011. He has no contact with his father, three brothers or two step sisters.
The offender left school after year 10 and has worked in assorted employments but has not worked since 1996. He had a major problem with alcohol but this seems to have ended in 1997. He has smoked cannabis for many years and also used heroin. He also had a period of drug use after completing a residential rehabilitation course but has since relapsed.
The offender was married for nine years but the relationship ended in 1996. This led to a second suicide attempt. Most of the above matters were reported by the offender and the Pre-Sentence Report notes “the information provided to this Service by Mr Cook has in part, been unable to be verified”.
The offender has a substantial criminal record which includes property offences, prohibited substance offences, deception offences and break and enter crimes.
The offender gave evidence. He said his behaviour had been “disgusting”. He said the Worldview programme had reawakened his Aboriginal identity and he was benefiting substantially from his involvement. It is difficult to know whether he should be believed. However, because of the letter from Worldview (Exhibit 1) I will give him the benefit of the doubt.
Generally speaking, in sentencing it is important that I take into account the objects and principles of sentencing as set out in ss 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT). Section 10 is not relevant because the offender must go to prison. No submission was made to the contrary.
The respective sentences for the two counts must be dictated by the amounts involved. Count 1 relates to $1,470. Count 2 relates to $96,830. It was submitted that there should be concurrency between the two sentences because they effectively formed part of the same criminal enterprise. I disagree. The two counts are ‘rolled up’ counts. This effectively gives the offender the benefit of there being only two counts for which he is to be sentenced. I think there should be a degree of accumulation.
As far as objective seriousness is concerned I think Count 2 must be regarded as about medium in the range and the second count somewhere below that.
The pleas of guilty were at an early stage. I think a discount of 20% is appropriate. Count 1 will attract a term of imprisonment of 7.5 months reduced to 6 months. Count 2 will attract a term of imprisonment of 24 months reduced to 19 months.
I make the following orders:
(a)In respect of the offence of obtaining property by deception (CC 2018/11470), the offender is sentenced to 6 months’ imprisonment commencing on 9 August 2018 and ending on 8 February 2019.
(b)In respect of the offence of obtaining property by deception (CC 2018/11471), the offender is sentenced to 19 months’ imprisonment commencing on 9 November 2018 and ending on 8 June 2020.
(c)I set a non-parole period of 18 months ending on 8 February 2020.
(d)I make a reparation order in favour of the complainant in the sum of $98,300.
| I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim. Associate: Date: |