R v JK
[2015] ACTSC 140
•25 May 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v JK |
Citation: | [2015] ACTSC 140 |
Hearing Dates: | 4 February 2015, 16 April 2015 |
DecisionDate: | 25 May 2015 |
Before: | Burns J |
Decision: | See [22] – [23] |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Sentence – particular offences – dishonesty offences – misuse of a Commonwealth credit card. |
Legislation Cited: | Crimes Act 1914 (Cth) s 16A Financial Management and Accountability Act 1997 (Cth) s 60 (1) |
Cases Cited: | R v Todorovic [2008] NSWCCA 49 |
Parties: | The Queen (Crown) JK (Offender) |
Representation: | Counsel Ms K Haigh (Crown) Mr K Archer (Offender) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) Cameron Legal (Offender) | |
File Number: | SCC 211 of 2014 |
BURNS J:
Background
JK, on 25 August 2014, you entered a plea of guilty in the Magistrates Court to one charge of misuse of a Commonwealth credit card, contrary to s 60 (1) of the Financial Management and Accountability Act 1997 (Cth). This offence carries a maximum term of imprisonment of seven years.
An agreed case statement was tendered, which I will not recite. It is sufficient to note that, as a government employee trusted with a credit card, you made unauthorised transactions on that card by way of cash advanced on 73 occasions between 29 May 2012 and 22 October 2012, totalling $98,020.00. I accept that you spent this money on gambling.
It is a striking feature of your conduct that you continued to conduct these transactions even when you knew that your credit card use was being examined by your employer. There was no elaborate method employed by you to mask the nature of these transactions so that, rationally, it must have been obvious that these transactions would be detected, as they were. I will return to this fact shortly.
When these transactions were discovered, you made an unsophisticated attempt to explain them by saying that you had used the cash withdrawals to purchase iPads and iPhones for the use of senior staff in your workplace. Even a moment’s thought would have been sufficient to recognise that this would be quickly disproved, as it was.
Consideration
There can be no doubt that your offending involved a significant breach of trust. It is also an aggravating factor that there were 73 separate occasions on which you conducted transactions over a period of approximately 5 months.
I take into account the content of the Pre Sentence Report. I note that you are 46 years old and that you were exposed to problem gambling by your parents from a young age. You joined the Royal Australian Navy at the age of 16, where you worked for 11 and a half years. You then joined the Commonwealth Public Service in a position of responsibility and, as I have said, trust. There is nothing to suggest that, before this offence, your performance in that position was anything other than appropriate and satisfactory. It is clear that you were frequently trusted with the property of your employer and also sensitive information.
You told the author of the Pre Sentence Report that you felt you had been bullied in your workplace in the years leading up to this offence. This was accompanied with a change in your role and personal stressors such as illness to close family members. You denied that your offence was borne of vindictiveness; instead, saying that your gambling was a way of escaping your emotions.
You acknowledged a long-term gambling problem which has led you to be in very significant debt. You have attempted a number of treatments in the past, including undergoing hypnosis and joining Gamblers Helpline. In 2008, you also voluntarily self-excluded yourself from a number of licensed clubs in order to avoid exposure to poker machines. You reported that you had not gambled in the last 10 months prior to the preparation of the Report and that you are willing to undergo further treatment as recommended by your psychologist.
The Report also notes that you have been diagnosed with a major depressive disorder, which I will refer to shortly.
You have been in a long-term relationship for the past 23 years, but that relationship has been placed under strain by your gambling and by the present offence. I am told that you are significantly indebted to your partner.
As a consequence of this offence, you lost your long-term employment with the public service. You have subsequently obtained employment, however, I accept that it is less remunerative than the employment that you were undertaking in the public service. You attempted to access your public sector superannuation account to repay the money you misappropriated but, for legal reasons, you are unable to access those funds. You have no other assets with which to pay compensation at this time.
I have received a number of reports from psychologists concerning your mental health. I accept the evidence of Mr Sam van Meurs, one of your clinical psychologists, that you have been diagnosed with a major depressive disorder with moderate symptoms, an adjustment disorder and anxiety with mild to moderate symptoms, and a gambling disorder with severe symptoms. I will refer to a portion of Mr van Meur’s very helpful report:
In Ms JK’s case, I believe there was a complex range of factors which firstly contributed to her offending, some of which have resolved due to the change in circumstances following her charges, and some which, if unaddressed, could continue to keep her at risk of future gambling and subsequently increase her risk of future offending. At the time of her offences, she was having difficulty with emotional regulation in response to a lack of financial, social, romantic and occupational stability. It is my opinion that her emotion regulation difficulties have stemmed from a lack of appropriate modelling in her childhood, a childhood which was marred with neglect, and some levels of emotional volatility. Many individuals with emotion regulation problems self-medicate through a range of avenues, some with substance abuse or addiction, others with self-harm or promiscuity. For Ms JK, her go-to strategy for emotional avoidance or ‘numbing’ herself was gambling, an addiction which she has battled with for many years. While she has received comprehensive gambling related counselling and therapy, it is my opinion that this treated the symptoms of gambling addiction rather than the latent causes. I do not believe that she had adequate coping strategies to deal with the turbulent emotions which she was experiencing at the time of these offences.
I note that there is objective evidence of the existence of mental health issues from well before the commission of this offence and also of your willingness to seek and accept appropriate treatment. I note that Mr van Meurs has strongly recommended that you undertake a course of weekly schema therapy, which he believes will reduce your risk of psychological dysfunction in the short and long-term, which will reduce your risk of gambling and offending.
I am satisfied that there is a connection between your anxiety and depression and your gambling addiction. As Jason McCrae, a psychologist who gave evidence at the sentence hearing, said:
One of the pathways to problem gambling is the desire or need to regulate emotions.
This accords with the opinion of Mr van Meurs. I am also satisfied that your underlying mental health conditions impaired your ability to exercise appropriate judgment and to think at the time of this offence. This finding is supported by the circumstance that you continued to obtain unauthorised cash advances even when you knew that the use of your credit card was being scrutinised. I also note that, at the time you committed this offence, Mr McCrae considered your depression to be moderate to severe, with severe essentially being unable to function.
I accept the Crown’s submission that the mere fact that an offender has a gambling addiction which motivates them to steal will not attract significant mitigation. For example, one of the pathways to problem gambling identified by Mr McCrae was habit. An offender who has developed a gambling addiction simply though the habit of gambling developed as an adult cannot expect that circumstance justifies significant mitigation for criminal offending. Similarly, where a gambling addiction arises out of efforts to regulate emotions without any underlying mental illness, little by way of mitigation would be appropriate.
I am satisfied that you do not fall into these categories and that, in your case, your gambling and your offending are associated with your underlying mental health conditions. This reduces your moral culpability for the offence and calls for a moderation of general deterrence as a sentencing consideration.
In my opinion, this approach is not irreconcilable with the decision of the New South Wales Court of Criminal Appeal in R v Todorovic [2008] NSWCCA 49, as it was explicitly accepted by the Court of Criminal Appeal in that decision that a mental disorder may be taken into account in determining the moral culpability of the offender and the extent to which the sentence should reflect the needs of general deterrence. The difference in R v Todorovic was that there was no evidence upon which the Court could conclude that the offender’s ability to make reasoned or ordered judgments had been affected by her underlying mental conditions
Your willingness to accept appropriate treatment, together with your lack of any prior criminal history, convinces me that personal deterrence, although still relevant, is not a predominant sentencing consideration. It must be accepted that this offence involves a significant breach of trust. It also involved the misappropriation of a large sum of money. Were it not for your mental disorder, a substantial term of imprisonment, to be at least partly served by way of full-time imprisonment, would have been the appropriate disposition.
In sentencing you, I take into account those matters set out in s 16A of the Crimes Act 1914 (Cth), without reciting them here. I accept that your plea of guilty was an early plea which demonstrated remorse and also had a utilitarian value. Whilst the case against you was very strong, indeed, to the point of overwhelming, the strength of the Crown case is largely a consequence of the modus operandi of your offending, which, as I have said, is indicative of connection between your offending and your mental health conditions.
I note that the Crown accepts that you cooperated with police in the execution of the search warrant, which is a matter to be taken into account in your favour. I am satisfied that you have reasonable to good prospects for rehabilitation, particularly if you accept the treatment recommended by your psychologist.
I am satisfied that a wholly suspended sentence of imprisonment will be adequate to punish you appropriately for this offence.
Sentence
I record a conviction and you are sentenced to 20 months’ imprisonment, which will be wholly suspended. There will be a recognisance to be of good behaviour for a period of three years, with conditions:
(a)first, that you are to accept the supervision of ACT Corrective Services for a period of three years or such lesser period as deemed appropriate by your supervising officer, and you are to undertake such assessments, counselling and treatment for gambling addiction and mental health disorders as directed by your supervising officer or his or her delegate;
(b)secondly, you are to report to ACT Corrective Services within 48 hours; and
(c)thirdly, there will be self in the sum of $200.00.
There will also be a reparation order in the sum of $98,020.00 in favour of the Commonwealth.
| I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 12 August 2015 |
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Amendments
12 August 2015 Replace “Jason McRae” with “Jason McCrae” Paragraphs: [14]
12 August 2015 Replace “Mr McRae” with “Mr McCrae” Paragraphs: [14], [15]