R v Griffiths
[2015] ACTSC 341
•19 October 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Griffiths |
Citation: | [2015] ACTSC 341 |
Hearing Date(s): | 16 July, 27 August, 15 October 2015 |
DecisionDate: | 19 October 2015 |
Before: | Burns J |
Decision: | See [25]-[26] |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Sentence – particular offences – dishonesty offences – obtain property by deception. |
Legislation Cited: | Confiscation of Criminal Assets Act 2003 (ACT) Criminal Code 2002 (ACT) s 326 |
Cases Cited: | R v Lopez [1999] NSWCCA 245 R v Tucker (unreported, Supreme Court of the ACT, Refshauge J, 30 August 2010) |
Parties: | The Queen (Crown) Raeleen Annette Griffiths (Offender) |
Representation: | Counsel Mr D Sahu Khan (Crown) Mr R Davies (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number(s): | SCC 75 of 2015 |
BURNS J:
Raeleen Griffiths, on 10 April this year in the Magistrates Court, you entered pleas of guilty to two offences contrary to s 326 of the Criminal Code 2002 (ACT).
The first offence was committed between 15 September 2011 and 4 December 2012. You did, by deception, dishonestly obtain property to the value of $75,320.24 belonging to Euphoria Nominee Pty Ltd, with the intention of permanently depriving that business of the property.
The second offence was committed between 19 February 2013 and 7 July 2014. You did, by deception, dishonestly obtain property to the value of $65,160.00 belonging to Canopy the Tree Experts Pty Ltd, with the intention of permanently depriving that business of the property.
On that day, you were committed for sentence to this Court. In this Court, you have maintained your pleas of guilty to these charges. The maximum penalty for each of these charges is 10 years’ imprisonment, a fine of $150,000.00 or both.
An Agreed Statement of Facts was tendered at the sentence hearing, but I do not propose reciting those facts at this time. It is sufficient to state that you were an employee of the businesses referred to in the charges during the periods covered by the charges and that you dishonestly manipulated their accounting systems by having amounts payable to the respective companies paid into your own personal account for your personal benefit. Your actions had a significant effect on the viability of at least one of the businesses involved, being Canopy the Tree Experts Pty Ltd.
Consideration
I note that you have a minimal criminal history with the only relevant entry being an offence of shoplifting in 2005 in New South Wales, for which you were placed on a bond for a period of six months. For present purposes, I accept that you are entitled to a degree of leniency with respect to sentencing for these offences based upon your history. However, the extent to which good prior character mitigates offences of this nature is limited by the fact that, if it was not for your good character, you would not have been placed in a position that allowed you to commit these offences.
A Pre Sentence Report was prepared for the sentence hearing. You are 48 years old and the third of five children. Your formative years were disrupted due to your parents separating when you were seven years old. Before your parents separated, you were subjected to traumatic personal abuse by a close family member, and you believe those events have had a major negative impact on your life. After your parents’ separation, you resided with your mother and siblings and experienced a somewhat transient lifestyle. After 10 years of separation, your parents reconciled and have remained together since.
You are the mother of three children through your marriage of 14 years, which ended approximately six years ago. You currently reside with your parents on the New South Wales South Coast and you intend to remain there indefinitely. You were educated to year 10 standard and then completed a secretarial studies course. You are currently employed in sales on a permanent casual basis. Your employer is aware of these proceedings and provided a letter dated 13 October this year, in which he speaks of you as being a respected and trusted employee. He has said that he is happy to support you in the future and has confidence in you as a valued continuing employee and contributing member of the community.
You told the author of the Pre Sentence Report that these offences took place at a time when you were desperately trying to provide an ongoing stable lifestyle to which your children were accustomed. As you had left the family home due to the failure of your marriage, you found the cost of living increasingly beyond your means. This also occurred in the context of an unwillingness by your former husband to arrange a financial settlement. You said that you did not want to put your children through hardship.
You also reported that, during this period that these offences occurred, you were suffering anxiety, insomnia and depression. You reported that feelings of shame, guilt and embarrassment hindered your ability to seek help at that time. You subsequently arranged a Mental Health Care Plan through your general practitioner and commenced counselling with a psychologist. The author of the Pre Sentence Report assessed you as at low risk of reoffending and unlikely to benefit from a period of supervision by Corrective Services. You have been assessed as suitable to undertake periodic detention in the ACT. You reported that you have the ability to commute from your residential address in New South Wales to the ACT if you are required to serve a sentence by way of periodic detention.
A report from Dr Michael Barry, a clinical psychologist, dated 14 May this year, was tendered at the sentence hearing. Dr Barry was aware of the charges against you and noted that you did not dispute the facts. He said that, with respect to the first charge, you stated that your offences were opportunistic and that you were motivated by financial pressure in your personal life following your separation from your husband. With respect to the second charge, he said that you accept that your offences had a higher degree of premeditation but you stated that you had become reliant on the extra money due to your financial situation.
You reported a history of childhood sexual abuse and described symptoms consistent with episodes of depression in your 20s and again around the time of your 40th birthday. You also described deterioration in functioning during the first half of 2014. While you sought treatment intermittently in response to those episodes, you exhibited a tendency to internalise your feelings as a result of your childhood sexual abuse. Dr Barry noted that, at the time of these offences, you were experiencing considerable financial difficulties as a result of delays in finalising the settlement following your separation, and you reported that you were living beyond your means.
Dr Barry stated that, while there was evidence to suggest that you suffered from an impaired sense of self, low self worth and significant negative self beliefs, he did not consider this to have contributed to your offending as there was a degree of premeditation, suggesting you were in control of your behaviour, and you were aware that your behaviour was wrong. Dr Barry said that, in discussing the offences, you expressed a high degree of guilt and remorse. You stated that you felt sick about your level of premeditation and felt particularly revolted about continuing to take money by deception after your financial pressures had eased. Dr Barry considered you to have good prospects for successful rehabilitation and expressed the opinion that you are unlikely to reoffend in a similar manner.
A number of testimonials were tendered at the sentence hearing. They speak of your conduct being out of character and of your remorse for your offending. Lisa Stone speaks of you as being an excellent example of a hardworking single mother whose family is her number one priority. She also speaks of the personal difficulties you suffered as a result of your former husband delaying a financial settlement after the breakdown of your marriage. Frances Manwaring speaks of your close relationship with your three children, to whom you speak to daily and who spend their school holidays with you. She states that you are extremely remorseful of your actions and that they are out of character for you. She notes that you have taken positive steps to try to get your life back on track. Dean O’Reilly, your brother in law, also found your participation in these offences surprising. He said that he has always known you to be a supportive friend, caring mother and completely law abiding community member. He also speaks of your remorse for these offences. Your brother Neil Griffiths and his partner Danielle Stone speak of the traumatic events of your early life and their ongoing effects upon you. They also express the view that these offences are out of character and that you have demonstrated significant remorse for your actions.
A letter from a general practitioner, Dr Lee, who you have consulted on the New South Wales South Coast, refers to you being referred to a psychologist for treatment in March this year. It was Dr Lee’s belief that you were suffering from depression with features of low self esteem, high self criticism and a high level of general guilt. A report dated 15 July this year from a registered psychologist, Keith McGowan, reports that you attended for sessions with him between March and May this year. Mr McGowan had read Dr Barry’s report and also the Pre Sentence Report, and expressed his support for the opinions expressed in those earlier reports, namely that you have good prospects for rehabilitation and you have expressed a high degree of remorse for your offending.
I accept that you have taken steps to try to ensure that at least partial reparation is made to your victims. In that regard, a number of assets have been confiscated under the Confiscation of Criminal Assets Act 2003 (ACT), including superannuation to the value of approximately $61,000.00 and a motor vehicle with a nominal value of approximately $50,000.00, although it is not clear whether this is a realistic estimate of the value of that vehicle. Assets confiscated under the Confiscation of Criminal Assets Act are normally forfeited to the Territory, but I have been advised that it is the usual practise of the Attorney General to exercise a discretion to pay the forfeited assets as reparations to victims who have suffered loss as a consequence of criminal offending. Nothing has been put before me to suggest that the Attorney will not follow his usual practise in this case, so that I am satisfied on the balance of probabilities that at least partial reparation would be made to your victims. I accept that you have done everything in your power to assist in this process and that you have no other assets which you have concealed or any capacity at the present time in order to make full reparation.
I note that you have a moderate amount of money in another superannuation account and that you have tried to access those funds in order to make reparation to your victims. Unfortunately, the trustees of that fund have been unwilling to release the funds held in your name as none of the prescribed conditions for release have been satisfied. This is not because of any failing on your part, and I am satisfied that there is nothing more that you could have done to arrange for release of those funds.
The loss of the funds which have been confiscated under the Confiscation of Criminal Assets Act in order to recompense your victims is a significant financial blow to you. These funds, I am satisfied, took many years to accumulate. They were not, to any great extent, funds that were obtained as a consequence of your criminal offending.
You entered pleas of guilty at the earliest possible opportunity. I am satisfied that this demonstrates your remorse for your offending and it also has significant utilitarian value. I will reduce by approximately 25 percent the sentences that I would otherwise have imposed in order to reflect your pleas.
I am satisfied that you have genuine remorse for your actions and that you are unlikely to offend in a similar fashion. For this reason specific deterrence is not an important sentencing consideration. There can, however, be no doubt that these are serious offences which warrant terms of imprisonment. These offences involved a significant breach of trust with respect to two different employers, with each offence extending over lengthy periods of time.
In addition, the amounts of money misappropriated are quite large. One thing that can be said in your favour is that you voluntarily ceased your offending before you were caught, which, as the New South Wales Court of Appeal said in R v Lopez [1999] NSWCCA 245, is a significant fact of mitigation, not only because it shows an acknowledgement of wrongdoing and provides strong evidence of remorse, contrition and rehabilitation, but also because it is in the public interest to encourage offenders such as you to cease your activities.
I was provided with a number of previous cases in which cognate offences were subject to sentences imposed in this court. As Refshauge J said in R v Tucker (unreported, Supreme Court of the ACT, Refshauge J, 30 August 2010), there is no clear pattern in the decided cases that help to define a sentencing tariff with respect to this type of offending. It may be accepted, as his Honour said, that relevant factors in determining criminality in offences such as the present include the amount of money involved, the premeditation involved and the length of time over which the offences were committed. By these measures, the present offences must be considered very serious ones.
The significant breach of trust involved in these offences means that general deterrence and punishment are the dominant sentencing considerations. That does not, however, mean that considerations such as rehabilitation are to be ignored, but this Court must impose sentences that make it clear that offences of this nature will bring real consequences. In my opinion, the appropriate balance between the need for general deterrence and punishment and also the recognition of your excellent prospects for rehabilitation is achieved by imposing sentences of imprisonment to be served by way of periodic detention and also by way of a suspended sentence.
Sentence
I note that I formally recorded convictions on each of the charges on 27 August this year.
On the first charge, you are sentenced to a term of imprisonment commencing today, 19 October 2015, and expiring on 30 June 2016, to be served by way of periodic detention. The first detention period will commence this Friday 23 October 2015. I also make a reparation order in favour of Euphoria Nominee Pty Ltd in the sum of $75,320.24.
On the second charge, you are sentenced to 13 months’ imprisonment, which will be consecutive upon the sentence of imprisonment imposed on the first charge. The sentence on the second charge will be wholly suspended and there will be a Good Behaviour Order for a period of two years commencing today. In the light of the recommendations in the Pre Sentence Report, I will impose no conditions other than the core conditions with respect to that Good Behaviour Order. I will also make a reparation order in favour of Canopy the Tree Experts Pty Ltd in the sum of $65,160.00.
| I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 4 November 2015 |