R v Deakin
[2022] ACTSC 175
•16 May 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Deakin |
Citation: | [2022] ACTSC 175 |
Hearing Date(s): | 19 April 2022 |
DecisionDate: | 16 May 2022 |
Before: | McCallum CJ |
Decision: | Sentence the offender to a term of imprisonment for two years and five months, commencing on 19 April 2022, with a non-parole period of 14 months ending on 18 June 2023 and a balance of term ending on 18 September 2024. |
Catchwords: | CRIMINAL LAW — JURISDICTION, PRACTICE AND PROCEDURE — Judgment and Punishment — Sentence — Dishonestly obtaining property by deception — Where offender pleaded guilty — Where Bugmy principles apply — Where offender is on constructive path of rehabilitation |
Legislation Cited: | Criminal Code 2002 (ACT), s 326 |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Weininger v The Queen [2003] HCA 14; 212 CLR 629 |
Parties: | The Queen ( Crown) Jeremiah Deakin ( Offender) |
Representation: | Counsel E Wren ( Crown) J Maher ( Offender) |
| Solicitors ACT DPP ( Crown) Kamy Saeedi Law ( Offender) | |
File Number(s): | SCC 165 of 2021 |
McCALLUM CJ:
Jeremiah Deakin has pleaded guilty to a single count of dishonestly obtaining property by deception, contrary to s 326 of the Criminal Code 2002 (ACT). He now stands to be sentenced for that offence. The maximum penalty for the offence is imprisonment for a period of 10 years, or a fine of up to $160,000, or both.
The offence to which the offender has pleaded guilty is a rolled up count reflecting 164 fraudulent transactions over a period of approximately two and a half years between 31 January 2016 and 15 September 2018. The total amount obtained as a result of the fraud was $718,904. I accept that, as the count is a rolled up count, it is inherently more serious than a single count of dishonesty.
All of the transactions involve the same victim. For reasons that will become apparent, he is referred to in these proceedings by a pseudonym. I will refer to him as Mr Jones.
It is frequently acknowledged that there is no “typical case” of fraud. The present case is particularly unusual. Mr Jones and the offender met on a gay dating website when Mr Jones was 58 and the offender was a teenager. There is a disputed fact as to whether the offender was then 15, in which case their engaging in sexual intercourse would have been unlawful on the part of Mr Jones, or 16, in which case it would not.
The offender contends, in effect, that Mr Jones used him as a child prostitute and that the prostitution continued for a number of years. He perceives himself, in effect, as a victim of Mr Jones’ predatory conduct at a time when he, the offender, was extremely vulnerable.
The offending began his course of fraudulent conduct some years after the sexual relationship between him and Mr Jones had come to an end. The fraud was viewed by the offender, at the time at least, as being morally justified by those earlier events. The offender gave evidence as to the disputed fact at the proceedings on sentence. Mr Jones did not. On the one hand, that leaves the offender’s evidence uncontradicted. At the same time, I am left with only one side of a complex and unusual story.
The Crown submits that the disputed fact is not a material fact because, on any view, there was a significant age difference between the two men when they met. Certainly, as to the offender’s precise age when their relationship commenced, I agree. It is not possible to make a reliable finding as to whether the offender was 15 or 16 when his relationship with Mr Jones began, and it does not make a material difference in the present sentencing task.
However, the Crown further submits that the nature of the relationship is also not a factor that requires the Court to make a finding. At the same time, the Crown’s written submissions record that the Crown does not accept that Mr Jones paid the offender for his sexual services.
In my assessment, the nature of the relationship does require consideration by this Court because it is essential to an understanding of the offender’s explanation for his later conduct. I will return to that issue and the disputed fact in my discussion of the subjective circumstances of the case.
Dealing first with the nature and circumstances of the offence, there can be no doubt that the offence was one of considerable seriousness. The statement of facts summarises the offending as follows. Between 2016 and 2018, the offender convinced Mr Jones that he was the subject of a number of criminal charges arising from a Centrelink debt that the offender convinced the complainant he had contributed to. Over that period of time, the offender, both as himself and posing as a fictional person, Sarah Bradford, requested Mr Jones to pay money for a variety of things, including medical bills, legal fees, rent, fines for late payments and the offender’s living expenses.
Mr Jones believed he was required to pay these expenses because, early in 2016, the offender told him, amongst other things, that an agreement had been reached with a magistrate that required Mr Jones to pay for these expenses, otherwise he would be legally liable for the offender’s failure to correctly claim his Centrelink income. That was a lie but it had enough truth to sound plausible to Mr Jones. The agreed facts record that Mr Jones recalled a conversation in which the offender discussed with him whether the fact that the offender was being paid cash in hand whilst working at a horse stable would create problems with Centrelink. Mr Jones told police that he told the offender to keep records of the hours that he worked and that he could probably wait until he was on the official payroll at the stable before telling Centrelink about his income. Accordingly, there was some objective explanation for the content of the offender’s deceit; that is that Mr Jones had in fact engaged in discussions with the offender as to whether it was necessary for him to report cash income.
However, the offender had in fact never been prosecuted for Centrelink offences. To that extent, his representation was a lie. As such, the entirety of the conduct he engaged in between 1 February 2016 and 14 September 2018 in relation to requesting money from the complainant was deceptive.
Throughout his correspondence with the complainant, the offender engaged in further acts of deception, including stating that he had been held in custody; that there were charges relating to the complainant and the offender’s sexual relationship and that there was a significant rebate or refund coming from the offender’s private health insurer as a result of Mr Jones paying the offender’s medical fees. As already recorded, the total sum of the amounts transferred by the complainant to the offender over that period of two and a half years was some $719,000.
It was submitted by the Crown that the offending involved a significant degree of deception and that it was ongoing; there were multiple lies and an elaborate narrative used, using a fake identity and multiple fake reasons for needing money. The truth, as the offender later acknowledged, was that he was in the grips of addiction to both drugs and gambling.
The Crown identified a series of features that contribute to the objective seriousness of the offence. It was calculated and ongoing. The loss to the victim was substantial, both financially and in terms of the emotional toll imposed on the victim. There is a victim impact statement before the Court which I have read a number of times. It reveals that the victim feels betrayed after years of what he characterises as benevolent payments. It is certainly clear that he cannot recover financially from the position he is in as a result of the amounts that he has paid to the offender and there is no prospect of the offender repaying him. I accept that the impact of the offending on Mr Jones has been devastating financially and that he feels betrayed. I accept that is a factor that aggravates the seriousness of the offence.
Turning to the offender's subjective circumstances, the material before the Court establishes that the offender had what can only be described as a dysfunctional upbringing. His family history is described in the report of a psychologist tendered at the proceedings on sentence, Ms Leesa Morris. She records, and this is consistent with the offender's own evidence, that his parents separated when he was two and from that time he lived solely with his father.
His father had been hit by a car as a child and received a traumatic brain injury. He re-partnered when the offender was around seven. The offender recalled liking his stepmother but told Ms Morris: “[b]ut dad neglected us for her. She was an alcoholic and a gambler and she self-medicated.”
I interpolate to note that, accepting that evidence, the behaviour into which the offender later fell was modelled for him by his stepmother.
Ms Morris records, and again it is consistent with the offender's evidence in the proceedings before me, that he left home at 15 years of age and supported himself financially in share accommodation. There were competing versions as to the circumstances in which the offender came to leave home at that age. He initially characterised it as being “kicked out”. However, he later explained that he gave his father an ultimatum to choose him or his stepmother and that his father chose his stepmother. Ms Morris probed that account and was told by the offender that he had been smoking a lot of weed and selling it at that time and, “there were arguments so I gave dad the ultimatum.” The offender then went to live with a friend.
It must be accepted that, within the material recorded by Ms Morris, there is some self-reporting. Having regard to the offender's established capacity for telling convincing lies, I have approached that evidence with caution and am sceptical as to some of the claims made by the offender. That said, the overwhelming inference from his life experience and his description of informative events is that he has experienced, and suffered as a result of, a childhood marked by abandonment and trauma.
The Crown did not accept that his was a background that warranted consideration of the principles stated in Bugmy v The Queen [2013] HCA 37; 249 CLR 571. I disagree. The conclusion that the offender's later life experience has been marked by the long shadow of his early trauma is, in my view, irresistible. It finds support in the opinion of Ms Morris, who gives him a diagnosis of borderline personality disorder which she thinks probably emerged in his late teens, around the time when he was attempting by himself to resolve the challenges of having been abandoned by his mother at a tender age and living in a household he found difficult to deal with. I am satisfied that there is a connection between those matters, including the diagnosis of borderline personality disorder, and his offending conduct.
It is appropriate in this context to consider the offender's reason for offending. As already noted, he felt that it was morally justified because he felt that Mr Jones took advantage of his vulnerability. He told police when they first approached him about the offending, “that person used to use me as an underage prostitute.” There is some support for that characterisation of the early relationship between the offender and Mr Jones in the objective facts.
Mr Jones told police that he met the offender on a dating website in 2006. As already noted, Mr Jones was around 58 years old at that time and the offender turned 16 in February 2006. Mr Jones told police that he believed the offender was then living in a group house, having been expelled from his family home, and that he was in receipt of a youth allowance. He told police that, after their initial meeting, the offender would ask him for money which he voluntarily provided, believing it was for food, rent and school expenses.
The offender gave a very different account of his experience of the early relationship. He said Mr Jones used to pay him for sexual favours when he was quite young; that he did not pay him very much; that he would pay him something like $50 to $100 and, even then, would tell him that that was too much for him to ask. The offender knew that Mr Jones knew the offender was living out of home. He told police that Mr Jones, “Certainly made it very clear that I wasn't the only young boy that he could have sex with.”
The offender's experience of some of those sexual encounters was one of a confounding combination of feeling insecure or abandoned and feeling humiliated by Mr Jones. It was hardly a traditional kind of romantic relationship. I do not have any difficulty accepting that it was one in which Mr Jones offered payment for the sexual services provided by the offender.
That is not to blame Mr Jones for what later happened, but only to acknowledge that the offender's formative years were marred by the impact of early abandonment and continued on a dysfunctional path, ultimately seeing him spiral, as many traumatised children do, into drug abuse and in this case an additional addiction to gambling. Those behaviours would not ordinarily be accepted as mitigating factors or reasons for finding reduced moral culpability. In the present case, however, they must be viewed in the context of the offender's early traumatic experiences, which contributed to the vulnerable state in which he first encountered Mr Jones.
I am satisfied that, although explanatory and not exculpatory, the offender's perception that Mr Jones took advantage of him when he was a vulnerable youth provided a motivation for his offending that is neither aggravating nor mitigating: cf Weininger v The Queen [2003] HCA 14; 212 CLR 629 at [22]. More importantly, however, I am satisfied that there is a causal connection between the offender's borderline personality disorder as informed by his traumatic experiences and his offending. For that reason, while it must be acknowledged that the offence is one of considerable seriousness, I am satisfied that the offender's moral culpability is substantially reduced.
Since coming to the attention of police for these offences, the offender's path has improved considerably. He has voluntarily sought treatment, the outcome of which is documented in material provided in his tender bundle, Exhibit 1. The exhibit includes a report resulting from a magistrate's early referral into treatment ordered as a result of unrelated offending; a letter from Mr Daniel Costin, a clinical psychologist dealing with the offender’s treatment for post traumatic stress and borderline personality disorder; and a letter from Malvern Private Hospital where the offender was an inpatient for a period of about a month, later successfully participating in the clinic’s outpatient program via Zoom. That letter, dated December 2021, concludes that the offender:
“Continues to focus on his recovery and staying engaged with the program and Malvern Private Hospital.”
I am satisfied that the offender is on a constructive path of rehabilitation. I am also satisfied that he has expressed some measure of remorse. It is qualified, but that is understandable in the circumstances I have described. Ms Morris asked him what he would say to Mr Jones given the chance. He said:
“That I am sorry I did what I did. I wish I had better reason than being addicted to drugs and heavy gambling. I am sorry I used him the way that I did. It has affected my life now like it affected him. Now, I feel like his taking advantage of my vulnerability with my consent is not moral justification for what I did. I wouldn't ask for forgiveness. I don't think forgiveness is something that can be asked for.”
Separately, on the topic of the offender’s path to rehabilitation, it is clear from the offender’s evidence that he has in his life the support of a person to whom he refers as his chosen father; a person who has evidently provided him with substantial emotional support in recent years and who, I understand, is in Court supporting him today. That is a positive factor in his rehabilitation.
The offender expressed concern that, if imprisoned, he will be unable to remain drug free. Unfortunately, and the offender accepts this, this is clearly a case in which the threshold for imprisonment is met. I am satisfied that a term of full-time imprisonment must be imposed. No other penalty would meet the purposes of punishment.
However, I am also satisfied that some degree of leniency is warranted to recognise the reduced moral culpability to which I have referred, and to encourage the offender’s ongoing rehabilitation. In light of the attempts the offender has made to remain drug free and his concerns as to the path of that rehabilitation in prison, I consider it appropriate to make a substantial adjustment to the usual ratio between the non-parole period and the term of the sentence in the hope that the prospect of early release and supported parole will encourage the offender’s efforts towards rehabilitation.
The offender submitted that a discount of 20 per cent should be allowed for the plea of guilty. I agree. The timing of the plea is set out in the Crown's written submissions and in the agreed facts. He was summonsed to appear in the Magistrates Court on 2 July 2020, initially being charged with multiple counts of obtaining property by deception. There was correspondence between the offender's solicitor and the Crown suggesting representations would be made to offer a plea of guilty to a single rolled up charge, but ultimately the offender entered pleas of not guilty to all charges and a brief of evidence was prepared.
He was committed for trial on 13 July 2021. He was later indicted for all 164 counts but, at criminal case conferencing, agreed to plead guilty to a single rolled up count. He was arraigned on 10 November 2021 when the plea of guilty was entered. In my assessment, the utilitarian value of the plea is very substantial. It has avoided the need for Mr Jones to give evidence and the requirement for the Crown to prove a complex series of transactions involving a substantial volume of documentation. For that reason, I accept that 20 per cent is an appropriate discount.
The Crown also sought a reparation order. I do not think it is appropriate to make that order in the circumstances. I accept that the victim has suffered a substantial loss. However, the offender's capacity to repay what he has received is almost negligible. Further, after he has served a term of imprisonment which is due punishment, I would wish to see him released from custody without the largely symbolic reparation order hanging over his head.
Leaving aside the discount for the plea of guilty, the sentence I would have imposed is a term of imprisonment for three years. Deducting 20 per cent from that term gives a period of two years and five months, and rounding down, a non-parole period of 14 months. I propose to impose a sentence structured in that way.
Mr Deakin, I convict you of the offence to which you pleaded guilty. I sentence you to a term of imprisonment for two years and five months, commencing on 19 April 2022, the day you were taken into custody, with a non-parole period of 14 months ending on 18 June 2023 and a balance of term ending on 18 September 2024.
| I certify that the preceding thirty-seven [37] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice McCallum Associate: Date: 15 July 2022 |
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