R v Foley - [2001] ACTSC 109

THE QUEEN v NADIA FOLEY [2001] ACTSC 109 (15 November 2001)

CATCHWORDS

CRIMINAL LAW – sentence – stealing from employer – whether offender suffering from pathological gambling condition and major depressive disorder good vehicle for general deterrence – authorities considered – custodial sentence suspended upon entering recognizance

R v Talbot (1992) 59 A Crim R 383
R v Masolatti (1976) 14 SASR 124
Hurd v R (1988) Tas R 126
R v Kilmartin (1989) 41 A Crim R 22
R v Champion (1992) 64 A Crim R 244
Halsey v Haynon (1992) 107 FLR 408
Parnis v R (1993) 49 FCR 304
Lauritsen v R (2000) 22 WAR 442
R v Jepsen (unreported, ACTSC, 15 November 1996, SCC No 123 of 1996)
R v Dukes (unreported, ACTSC, 29 August 1997, SCC No 87 of 1997)
R v Parker [2000] ACTSC 68 (11 August 2000)
R v Kaiser (unreported, ACTSC, 23 May 2000, SCC No 249 of 1999)

No. SCC 123 of 2001

Judge: Higgins J
Supreme Court of the ACT
Date: 15 November 2001

IN THE SUPREME COURT OF THE )
) No. SCC 123 of 2001
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: THE QUEEN
Plaintiff

AND: NADIA FOLEY
Defendant

SENTENCE

Judge:  Higgins J
Date:  15 November 2001
Place:  Canberra

The offender, Nadia Foley, has pleaded guilty to stealing $77,893.11 in cash over a period between 1 July 1998 and 31 October 2000 from Ticketek Pty Ltd.

She was, in fact, employed from 1991 as the merchandising and ticket sales manager at the Canberra Raiders’ shop which operated out of the Canberra Raiders Club at Mawson. Her duties included selling Raiders’ memorabilia and other goods as well as tickets to football games and other events. The money for the sale of tickets was to be banked and accounted for to Ticketek Pty Ltd. It is not clear to me whether the tickets issued through the Ticketek terminal were, until the thefts came to light, ever reconciled with the monies banked.

In any event, it was not until 21 December 2000 that Ticketek management noted that there had been a discrepancy between the tickets issued and the monies credited to Ticketek.

At first the offender said she would need to look for the relevant paper work but, in fact, she had approached Ticketek’s auditor, Mr Carpenter, and offered to deposit $34,000 when the discrepancy had been drawn to her attention. The offender then confessed that she had taken money from Ticketek sale proceeds.

She was then spoken to by Mr Kevin Neill, the Chief Executive of the Canberra Raiders. She confirmed to him that she had stolen money from ticket sale proceeds and was, of course, immediately dismissed from her employment.

The offender was not interviewed by police until 19 April 2001. I am told that interviewing police were favourably impressed by the genuineness of her remorse and the co-operation she extended to them. She did not seek to minimise or excuse her behaviour.

The delay was no doubt distressing to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Foley

Details

AGLC: R v Foley [2001] ACTSC 109
Case: [2001] ACTSC 109
Decision Date: 15 November 2001

CaseChat Overview and Summary

In this case, the respondent, Foley, was convicted of stealing from his employer and faced sentencing in the court. The respondent's theft was a result of his pathological gambling condition and major depressive disorder. The court had to determine an appropriate sentence that would serve the purposes of general deterrence, specific deterrence, retribution, and rehabilitation. The court also had to consider the respondent's mental health and his potential for rehabilitation.

The legal issues that the court had to consider included the principles of sentencing and the appropriate sentence for the respondent's crime. The court had to balance the need for general deterrence with the respondent's mental health and potential for rehabilitation. The court also had to consider the impact of the respondent's mental health on his ability to understand the wrongfulness of his actions and his capacity to participate in rehabilitation programs.

The court found that the respondent's pathological gambling condition and major depressive disorder were significant mitigating factors that should be taken into account when determining an appropriate sentence. The court held that a custodial sentence would not be an effective means of rehabilitation for the respondent, and that a suspended sentence would provide an opportunity for the respondent to participate in rehabilitation programs and address his mental health issues. The court also noted that the respondent had shown remorse for his actions and had taken steps to address his gambling addiction. The court ultimately decided to suspend the custodial sentence upon the respondent entering into a recognizance.

Orders