R v Diamond
[2015] ACTSC 60
•3 March 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Diamond |
Citation: | [2015] ACTSC 60 |
Hearing Dates: | 16 December 2014, 3 March 2015 |
DecisionDate: | 3 March 2015 |
Before: | Burns J |
Decision: | See [18] |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Particular Offences – property offences – dishonesty offences – theft. |
Cases Cited: | R v Dibley (unreported, Supreme Court, ACT, 16 September 2013) R v Cousins (unreported, Supreme Court, ACT, 26 March 2012) |
Parties: | The Queen (Crown) Tanya Diamond (Offender) |
Representation: | Counsel Ms Begley (Crown) Mr Doig (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Ben Aulich & Associates (Offender) | |
File Number: | SCC 241 of 2014 |
Burns J:Background
Ms Diamond, you have pleaded guilty to one count of theft of the sum of $42,642.19. You entered that plea of guilty at a very early time in the Magistrates Court, at which point you were committed for sentence to this Court. You have maintained your plea of guilty with respect to that offence. The offence is a serious one, carrying a maximum penalty of 10 years' imprisonment.
An Agreed Statement of Facts was tendered during the course of the sentence hearing and I do not propose to recite the statement of facts at length. It is sufficient to note that you were employed as an office administrator at a child care centre and as part of your responsibilities in that role you were responsible for preparing the payroll for staff. In that role, you deliberately overpaid yourself on 44 occasions between August 2010 and November 2013, amounting to that sum of $42,642.19.
Consideration
I take into account your plea of guilty with respect to this matter and I accept that it was a very early plea. I accept that it demonstrates remorse on your behalf and it also has a very significant utilitarian value, as was accepted by the Crown. A trial of a matter such as this would have been a very long and expensive process. As such, I will reduce by 25 percent the sentence that I would otherwise have imposed in order to reflect your plea of guilty.
I also take into account the fact that you have no prior convictions. However, as I indicated in the matter of the R v Dibley (unreported, Supreme Court, ACT, 16 September 2013), in an offence such as this that has limited mitigatory value; the extent of the leniency which I can show you based upon your previous good character is limited by the fact that, if it was not for your good character, you would not have been placed in a position to be able to undertake this offence. Nevertheless, you are entitled to a degree of leniency based upon the fact that you have no prior convictions.
I also take into account the fact that you have a good employment history and the fact that you are continuing in employment. Indeed, you continue in employment in the child care field at the present time.
You have provided information to the police about alleged offences by the former director of the child care centre at which you were employed at the time you committed these offences. That information by and large has not proved particularly useful, mostly because the matters that you referred to in your statement to the police proved to be matters that were already known to the board and approved by them, or matters which were within the entitlement of your former director. Nevertheless, I accept that you attempted to provide a degree of assistance to the police, albeit that that was of limited value to them.
The amount of money which was involved in this offence is a significant sum. I accept the evidence which you have given that the first occasion on which you misappropriated funds from your former employer, your motive was one of anger or revenge towards your supervisor. Thereafter, I am satisfied that your motive in obtaining the further sums of money which you misappropriated was effectively to deal with the financial difficulties that you and your family were suffering at the time. I accept that you are a poor money manager and that you now accept that to be the case.
The evidence, in my opinion, establishes that you and your family were in financial turmoil prior to these offences. Adding to that turmoil was the fact that you had undertaken an in vitro fertilisation program in order to have a child who is now six years of age and that process was expensive and also very stressful. I take into account that you have now addressed your money management issues, including taxation issues, by placing your funds in the hands of a third party agency which effectively manages your money for you and provides you and your husband with certain allowances each week.
It is a matter of great significance, in my opinion, that you have made reparation for this offence. You have made reparation by borrowing the funds from your parents and through your solicitors that money has been repaid to the child care centre. That does not mean that you will not suffer a substantial degree of sacrifice in order to repay the money that was stolen. You have made arrangements through the money managing agency to which I have already referred to place money aside which ultimately you intend to use to repay your parents for the loan. As such, I accept that there will be a substantial degree of sacrifice involved in you repaying the money which you stole.
I take into account, also in your favour, the testimonials which have been placed before me which speak of your conduct as being out of character and also speak of your remorse for what you have done.
I further take into account the psychiatric opinion which has been provided by Dr Barry, who expressed an opinion based upon what you told him of the workplace at the child care centre, namely that you had been the subject of bullying resulting in you suffering depression which is now in remission. I note that you expressed remorse to Dr Barry. He assessed you as being at very low risk of re-offending. I also note in that regard that you have undertaken appropriate therapy as recommended by Dr Barry, and the fact that that treatment is continuing.
A Pre-Sentence Report was prepared for the sentence hearing. I note that you are 42 years of age, that you expressed remorse to the author of the Pre-Sentence Report for your offending and that you acknowledged that your offending was a breach of trust. You were assessed by the author of the Report as being at low risk of re-offending. I accept the submission that was made by Mr Doig, your counsel, on your behalf that this was not a particularly sophisticated offence, although I am not necessarily convinced by the proposition that it was one which necessarily had to come to the attention of the victim.
I must take into account in sentencing you that this was a continuing offence which occurred over some three years. I must also bear in mind that it was an offence which involved a significant breach of trust and that there was a substantial amount of money which was misappropriated. As the Crown has rightly pointed out, general deterrence is a very important consideration in sentencing for these types of offenders. People who breach the trust of their employers in this way and in doing so misappropriate significant amounts of money must understand that very real penalties will be imposed by this Court.
The Crown has provided me with a number of authorities dealing with sentencing for this type of offence. I am grateful to the Crown for providing me with this assistance, although I must say that none of the cases to which the Crown has referred me are precisely identical to the circumstances of this case. In R v Tucker (unreported, Supreme Court, ACT, 30 August 2010), the offender misappropriated just over $58,000.00, but in that case significantly there was no reparation made by the offender and I also note that the offender had prior convictions for dishonesty offences. In that matter, the offender was sentenced to 18 months' imprisonment, suspended after serving some six months of full-time imprisonment.
In R v Dibley, I sentenced an offender to a term of 20 months' imprisonment, 8 months of which was to be served by way of full-time imprisonment followed by 6 months of periodic detention and the balance suspended with a Good Behaviour Order in circumstances where the offender had stolen just over $57,000.00 from his employer. In that matter, there were also significant differences to the present case. No reparation had been made by the offender and the offences committed by the offender financially crippled the victim. The offender in that case was in a position of knowing precisely the financial position of the victim so that the offender was well aware of the fact that the business was failing because of his misappropriation of the funds.
Finally, I was referred to the matter of R v Cousins (unreported, Supreme Court, ACT, 26 March 2012), which was a decision of the former Chief Justice of this Court. Whilst that decision is of assistance in terms of general principle, in my opinion it provides little assistance by way of comparative sentencing because of the significantly greater sum which was involved in the misappropriation in that case.
It has been acknowledged by your counsel, and I think rightly so, that this is an offence which calls for a term of imprisonment. The only question is whether it is to be a term of imprisonment served wholly or partly by way of full-time imprisonment, or whether some lesser penalty may be appropriate. I am, of course, not to impose a sentence of full-time imprisonment if some other sentence will be sufficient to satisfy the requirements of sentencing in any particular case. I have determined that, in this particular case, a suspended sentence of imprisonment together with a community service order will be sufficient to satisfy the requirements of sentencing.
Sentence
You are convicted of the offence of theft and you are sentenced to 13 months' imprisonment. I have reduced that by four months in order to reflect your plea of guilty and also a further two months in order to reflect the assistance you provided to police. That sentence will be suspended forthwith. There will be a Good Behaviour Order for a period of 2 years requiring you to accept the supervision of ACT Corrective Services for a period of 12 months or such lesser period as deemed appropriate by your supervising officer and you are to complete 120 hours of community service within that period of 12 months as directed by an authorised officer.
| I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 13 March 2015 |
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