R v Hogan
[2015] ACTSC 367
•12 November 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Hogan |
Citation: | [2015] ACTSC 367 |
Hearing Date(s): | 24 August, 13 October 2015 |
DecisionDate: | 12 November 2015 |
Before: | Burns J |
Decision: | See [41] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – theft – mental illness – reduced culpability – not an appropriate vehicle for general deterrence. |
Legislation Cited: | Crimes Act 1900 (ACT) s 334 Criminal Code 2002 (ACT) s 308 |
Cases Cited: | R v Dibley (Unreported, Supreme Court of the ACT, Burns J, 16 September 2013) R v Tucker (Unreported, Supreme Court of the ACT, Refshauge J, 30 August 2010) R v Wheeler (Unreported, Supreme Court of the ACT, Higgins CJ, 22 February 2013) |
Parties: | The Queen (Crown) Donna Louise Hogan (Offender) |
Representation: | Counsel Mr S McFarland (Crown) Mr P De Dassel (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Rohan Squirchuk & Associates Pty Ltd (Offender) | |
File Number(s): | SCC 123 of 2015 |
BURNS J:
Donna Louise Hogan, you appear before me today to be sentenced with respect to an offence of theft contrary to s 308 of the Criminal Code 2002 (ACT). The maximum penalty for the offence is one of 10 years' imprisonment, a fine of $110,000.00, or both.
The offence was committed between 15 December 2011 and 12 July 2014, during which period you dishonestly appropriated property, namely, $71,128.00 belonging to the Betts Group Pty Ltd, with the intention of permanently depriving that entity of the property.
This matter first came before the ACT Magistrates Court on 3 March this year, at which time you sought the consent of the Crown for the offence to be dealt with pursuant to s 334 of the Crimes Act 1900 (ACT), which would have seen the charge against you dismissed by reason of mental impairment. The Crown did not consent to this application. You subsequently entered a plea of guilty in the Magistrates Court on 21 May this year, at which point you were committed to this Court for sentence. I accept that this was an early guilty plea.
A Statement of Facts was tendered at your sentence hearing, and I will not now recite those facts in detail. It is sufficient to note that, between 11 April 2011 and 14 July 2014, you were an employee of Betts Group Pty Ltd as the store manager of the store in the Canberra Centre. As a store manager, you were authorised to process and acquit stock that had been returned for a refund. In July 2014, the Betts Group Pty Ltd developed a new report system which revealed discrepancies involving refunds that you had processed. An internal investigation was conducted, which identified 697 fraudulent refund transactions to the total of $71,128.00 processed using your staff PIN number. On 14 July 2014, you were provided with a letter by the Betts Group Pty Ltd outlining the findings of the internal investigations, and on the same day you tendered your resignation. In your handwritten resignation you apologised for the theft and stated that you would endeavour to pay back what you had stolen. You also wrote: “I agree and permit the company to withhold and retain any moneys owing to me in part restitution of moneys I have taken”.
Reparation in these proceedings has not been sought by the Betts Group Pty Ltd. However, you have previously entered into a deed with that entity which requires you to repay money, and you have repaid the amount required under that deed, being $61,000.00.
Consideration
A Pre Sentence Report was tendered at your sentence hearing. You are a 57 year old woman, born in New South Wales, and one of seven children. You described to the author of the Report a close relationship with your mother and siblings, but said that you lived in fear of your father. [Redacted for legal reasons]. You told the author of the Report that your father passed away in 2006 and that you were relieved after his passing.
You described a positive relationship with your husband, with whom you have been in a relationship for 42 years. You and your husband have two children, for one of whom you act as a carer.
You completed your Year 10 certificate before leaving school. You advised the author of the Report that you left school [redacted for legal reasons] before continuing your education through TAFE. You have consistently held employment until July 2014, when you resigned from your position with the Betts Group Pty Ltd. Since resigning, you have had no independent income and you have been reliant on your husband for financial support.
You advised the author of the Report that you have limited social interactions outside of your family. Your husband advised the author of the Report that you have been reluctant to socialise due to feelings of guilt and shame brought on by your offending behaviour.
I take into account the contents of the Pre Sentence Report with respect to your mental health issues. You have a history of psychological treatment since early 2000. In 2014, after you were made aware of the current proceedings, you experienced what is described in the Report as a “catastrophic psychological breakdown” which required hospitalisation. You were diagnosed with multiple mental health illnesses, for which you were prescribed medication, and you were referred to a psychologist through your general practitioner. I will return to your mental health concerns later.
You were unable to explain to the author of the Report why you committed the offence. You said that you could not recall the individual thefts, although you believed that the total amount stolen recorded in the Statement of Facts was inaccurate.
You and your husband both described to the author of the Report situations when you would purchase items to cope with feelings of low self-worth. You expressed remorse and regret for your actions and believe your current strategies regarding counselling, medication and family support will reduce your chances of committing further offences.
The author of the Report expressed the view that you did not minimise your actions and that you appeared to understand the impact your offences had on the store. You were assessed as at low risk of reoffending if you continued to undertake your current treatment.
A number of reports from health care professionals regarding your mental health were tendered at the sentence hearing. A letter dated 15 September this year from Dr Katherine Roper of the Kooringal Medical Centre was tendered. Dr Roper was not your treating doctor, but was able to provide your mental health history. The letter confirmed that you were first diagnosed and treated for depression and anxiety disorder and prescribed medication in 1999 by Dr Max Graffen. Dr Graffen referred you to a psychiatrist in 2000, whom you saw for two visits over the course of two months.
Between 2001 and 2007, you continued to be prescribed medication. In 2007, you attended the medical centre regarding your father's passing away in a traumatic motor vehicle accident. You developed significant anxiety and insomnia symptoms with reflux. You relapsed into clinical depression and maintained regular appointments until your last review with the practice in 2008.
A further letter from Dr Graffen, dated 16 September this year, confirms that you have been a patient of his since 1999, first as a patient of the Kooringal Medical Centre and again at a later practice since 2008. He refers to your grief resulting from your father's death and [redacted for legal reasons]. . Dr Graffen initiated a Mental Health Care Plan and referred you to a psychologist and increased your medication. Dr Graffen's last contact with you was in February 2010, at which point he determined that you were much improved and coping well.
A brief letter dated 28 October 2014 from Dr Sally Kalek, a clinical psychologist, confirms that you attended six sessions at the Gungahlin Psychology Practice from 23 July to 28 October 2014. Your sessions focused on emotion regulation, behavioural and relation strategies as well as discussing significant life stressors and your traumatic background. [Redacted for legal reasons].
I have before me a supplementary psychiatric report of Dr Richa Rastogi, a consultant psychiatrist, dated 29 September this year. The report refers to an earlier report dated May 2015, however, it appears that the earlier report was not tendered. Dr Rastogi reports that you have a long term history of mental illness, including post traumatic stress disorder, severe anxiety and depression. Dr Rastogi opines that, throughout the period during which the offence occurred, you were mentally ill and suffering from a dissociative condition. [Redacted for legal reasons]. Dr Rastogi noted that, due to your mental illness, you appeared to be functioning normally during the time that you committed the offence, but your mental state was actually severely disturbed and you were unable to recognise that your actions were wrong. Dr Rastogi opines that your judgment would have been impaired and you would have been unable to identify situations to your detriment due to emotional detachment. The report notes that you have been actively engaged in psychotherapy to deal with both past trauma and also significant stresses in your life, including your daughter's aggressive form of multiple sclerosis.
[Redacted for legal reasons].
I will now turn to the evidence which was tendered in your case. Two letters written by you were tendered, and you also gave evidence at your sentence hearing. You apologised for your offending and you expressed deep remorse. In your letter dated 24 August 2015, you describe the offending as out of character for you. You stated that, throughout your working life, you have often worked in positions where you have been responsible for handling money. You advised that, during your employment with the Betts Group Pty Ltd, you were caring for your disabled daughter, who suffers from cerebral palsy, severe asthma and borderline personality disorder. In December 2011, your daughter was diagnosed with multiple sclerosis. You advised that, at the time of your offending, you were dealing with depression [redacted for legal reasons]. You stated that you have sought psychiatric and psychological treatment and are currently taking medication for depression and anxiety. You expressed a desire to continue counselling and therapy.
In your letter dated 12 October this year, you gave a detailed account of your childhood. You described your father as an extremely violent man. [Redacted for legal reasons]. You also referred to your father's death in 2006 in a car accident as a possible suicide.
You advised that both of your daughters have serious mental illnesses. [Redacted for legal reasons]. It is only since you commenced treatment in 2014 that you have reconciled. You reported that your daughter has bipolar affective disorder and anxiety and continues to be regularly hospitalised due to her mental illnesses.
You also report that your best friend passed away from cancer in October 2011, at about the same time your other daughter was diagnosed with multiple sclerosis. You are your daughter's primary carer. Her multiple sclerosis has been diagnosed as aggressive and her mobility is severely impaired. You are anxious about not being able to care for your daughter if you are given a custodial sentence.
You said that you stole the money from the Betts Group Pty Ltd because you were feeling very depressed and anxious. You had feelings of worthlessness and found it hard to live with all of the difficulties that you were having emotionally and psychologically. You report that having money to spend and buying things made you feel better about yourself. You advised that you cannot remember what you spent the money you stole on, other than buying some clothes for your grandchildren and giving your daughter small amounts of cash on some occasions.
You acknowledge that stealing from your employer was wrong, and you expressed deep remorse for your actions. However, you believe that the summary of transactions used to calculate the amount you stole was inaccurate. You say that you have maintained your plea of guilty despite this.
A number of character references were tendered on your behalf. I have before me a letter from your husband, Doug Hogan, dated 20 August this year. He describes a positive marriage characterised by great affection and deep love, describing your married life as a typical happy family life. [Redacted for legal reasons]. He also refers to numerous traumatic events that occurred during the course of your offending, including your friend's death, your mother, sisters and brothers all being diagnosed with cancer and your daughters’ health problems. He said that, during the period of your offending, there were no obvious signs of extra cash and he did not observe any lavish spending on your part. He believes that the offending behaviour was out of character and that you are remorseful and ashamed for your actions.
I also take into account the letter written by your youngest daughter dated 11 October this year. She refers to the physical and emotional support that you provide her. She says that you assist with her washing, cleaning and other simple tasks that would be difficult for her to do due to her multiple sclerosis. She says that it would be near impossible for her to attend her medical appointments without your assistance in transporting her in a wheelchair. She says that her reliance on you will likely increase in the future as her symptoms are becoming more severe and her mobility decreases.
Other letters from your family and long term friends similarly describe your offending behaviour as out of character and describe you as hardworking, trustworthy and a devoted mother to your children.
I note that you have no criminal history. In cases of this kind, prior good character does not carry as much weight as it might otherwise because it was your good character which placed you in a position to be able to commit the offence. You are nevertheless entitled to a degree of leniency based upon your lack of prior criminal history.
There can be no doubt that this offence objectively is a serious one. The maximum penalty, one of 10 years' imprisonment, is an indicator of how seriously the legislature views offences of theft. It also provides a yardstick as the sentence appropriate for the worst type of offence. The fact that your offending continued over a period of some two and a half years and involved the theft of a significant amount of money, in circumstances involving a breach of trust reposed in you by your employer, means that this offence must be viewed as a serious example of this type of offending.
I would suggest, looking solely at the objective circumstances, that it would be in the mid range of such offences. Ordinarily, such an offence would warrant a lengthy term of imprisonment because of the need to deter offences of this nature committed by people in positions of trust. There are, however, other circumstances which need to be considered in your particular case. Chief amongst those is your mental health and, in particular, your mental health during the period in which this offence was committed.
I am satisfied, on the basis of the evidence which has been placed before me, that, at the time you committed this offence, you were mentally ill and suffering from a dissociative state. I accept the evidence contained in the report from Dr Rastogi that your mental health at the time you committed this offence was such that you did not fully recognise that your actions were wrong. I also accept that your judgment was impaired. The fact that you were suffering from a dissociative state may well explain why you still believe that you misappropriated money on fewer occasions than the evidence establishes. In that regard, I am satisfied that your continuing doubt about the number of misappropriations is not an attempt by you to minimise your culpability, but, on the balance of probabilities, is a consequence of your mental health at the time of this offence.
I am satisfied that your mental health at the time you committed this offence is such as to reduce your moral culpability and means that you are not an appropriate vehicle for general deterrence. I accept that general deterrence remains a relevant sentencing consideration, but there should be a sensible moderation to reflect your mental state at the time of the offence. The significant nature of the mental illness from which you were suffering at the time is a matter which has a significant impact on sentencing.
The Crown submitted that your motive in committing this offence was simply one of greed. In my opinion, this is simplistic and ignores the psychiatric evidence. This is a case, I am satisfied, where your offending was directly related to your mental illness at the time. [Redacted for legal reasons]. Another significant factor is that you have made significant reparation to your victim. In order to do that, you surrendered to your former employer your outstanding entitlements, including superannuation which had taken you years to accumulate. I am satisfied that this involved a very real sacrifice on your part and that of your family. In my opinion, you are unlikely to reoffend, particularly if you continue with your present treatment. I am satisfied that you have excellent prospects for rehabilitation.
You entered your plea of guilty at an early opportunity, and I am satisfied that it demonstrates true remorse on your part and also a willingness to facilitate the administration of justice. I am also satisfied that your plea had significant utilitarian value. I will reduce by 25 per cent the otherwise appropriate sentence in order to reflect your plea of guilty.
The Crown referred me to the decision in R v Dibley (Unreported, Supreme Court of the ACT, Burns J, 16 September 2013), where I imposed a sentence of 20 months' imprisonment with respect to an offence of theft involving a misappropriation of just over $57,000.00 from an employer. That offender also had no prior criminal history, but there were significant differences between the offender in that case and yourself. Most significantly, the offender in Dibley had no history of mental illness and was not suffering from a mental illness which decreased his moral culpability at the time he offended. Secondly, the offender in Dibley had made no restitution to his victim, despite apparently having the means to do so for a period after his offending was detected.
The Crown also referred me to the sentence imposed by Refshauge J in R v Tucker (Unreported, Supreme Court of the ACT, Refshauge J, 30 August 2010). His Honour imposed a sentence of 18 months' imprisonment for a theft of $53,000.00 over a period of two years and four months, with the sentence being suspended after six months' full time imprisonment. I note that, whilst the offender in that case also had a deprived childhood, there were important differences, including that there was no finding that any underlying mental illness suffered by Mr Tucker was causally related to his offending.
A further case referred to by the Crown was a sentence imposed by Higgins CJ in R v Wheeler (Unreported, Supreme Court of the ACT, Higgins CJ, 22 February 2013). The offender in that matter pleaded guilty to one count of obtaining property by deception, which also carried a maximum penalty of 10 years' imprisonment. The offence encompassed 107 separate misappropriations of money from his employer, totalling $517,284.00. The offending occurred over a period of approximately two and a half years. The offender had made some effort at reparation, but it is not clear to what extent reparation had been made from his Honour's sentencing remarks. The offender had a gambling addiction, but there was no evidence of underlying mental illness. The offender was sentenced to five years' imprisonment, of which 12 months was to be served by way of full time imprisonment, with a further six months to be served by way of periodic detention and the balance being suspended. That case, of course, differed significantly from the present case, in that the amount of money misappropriated was much greater than the present case, and there was no evidence of significant mental illness afflicting the offender.
I was referred to a number of other sentences which have been imposed in this Court, to which I will not refer in detail. It is sufficient to say that, whilst I find some assistance from those cases as indicating sentences that have been imposed in the past for cognate offences, I am unable to discern any particular sentencing pattern arising from them.
I am required to impose a sentence which is just and appropriate in all of the circumstances. In my opinion, that is achieved in the present case by imposing a suspended term of imprisonment. Were it not for your underlying mental illness, which was causally linked to your offending, I would have imposed an immediate term of full time imprisonment.
Sentence
I record a conviction and you are sentenced to 16 months' imprisonment, which I have reduced from 20 months in order to reflect your plea of guilty. That sentence will be wholly suspended and there will be a Good Behaviour Order for a period of two years with the following conditions:
(a)first, you are 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 obey all reasonable directions of officers of ACT Corrective Services, including undertaking assessments, counselling or treatment for mental health issues. In that regard, I would recommend that ACT Corrective Services direct you to continue with your current treatment; and
(b)secondly, you are to report within 48 hours to ACT Corrective Services.
Now, as you can see, I have sentenced you to a total term of 16 months' imprisonment, but I have suspended that. There will be a Good Behaviour Order for a period of two years. As part of that Good Behaviour Order, you have to accept the supervision of Corrective Services for a period of 12 months, or such lesser period as they may deem appropriate. If you commit no further offences within that two-year period of the Good Behaviour Order, and if you comply with the direction that you accept supervision and comply with directions that are given to you by Corrective Services, then there is no reason why you would need to serve that 16 months' imprisonment. However, if you commit some further offence within the two-year period of the Good Behaviour Order, or you do not comply with the conditions that I have just outlined to you, then you may be brought back to this court to be dealt with on a breach of these orders, at which time there is a very real prospect that you may have to serve some or all of that 16 months of imprisonment.
| I certify that the preceding forty-two [42] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 4 December 2015 |
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