R v Kennedy - [2021] ACTSC 80

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Kennedy
Citation:	[2021] ACTSC 80
Hearing Date:	28 April 2021
DecisionDate:	28 April 2021
Before:	Mossop J
Decision:	See [41]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – theft – money dishonestly appropriated from employer – rolled up count – offending conduct took place over protracted period – prior offence of a similar kind – breach of employer’s trust – general and specific deterrence – custodial sentence imposed – reparation order made
Legislation Cited:	Criminal Code 2002 (ACT), s 308 Crimes (Sentence Administration) Act 2005 (ACT) Crimes (Sentencing) Act 2005 (ACT), ss 19, 53(3)
Cases Cited:	Johnston v R [2017] NSWCCA 53 R v Jones [2004] VSCA 68 R v QU [2019] ACTSC 155 R v Riordan [2015] ACTSC 26
Parties:	The Queen ( Crown) Scott Kennedy ( Offender)
Representation:	Counsel M Dyason ( Crown) E Chen ( Offender)
Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender)
File Number:	SCC 1 of 2021

MOSSOP J:

Introduction

The offender, Scott Kennedy, has pleaded guilty to theft contrary to s 308 of the Criminal Code 2002 (ACT). The maximum penalty for the offence is 10 years’ imprisonment, a fine of $150,000 or both. The charge involves a rolled up count involving 217 fraudulent transactions resulting in a total of $57,766.34 being dishonestly appropriated from the offender’s employer. The nature and effect of rolled up counts is discussed in R v Jones [2004] VSCA 68 at [13]; Johnston v R [2017] NSWCCA 53 at [68]-[70].

Facts

The facts are agreed and are, in summary, as follows.

The offender was an employee of CEX Pty Ltd (CEX). He commenced working at CEX on 11 March 2017. CEX operates an international chain of stores selling second-hand electronics. The offender was the store manager of the Gungahlin branch.

The CEX Gungahlin branch operated an EFTPOS machine. For a refund to be processed by a CEX employee, two personal identification numbers (PINs) had to be entered into the machine. Only the store manager had access to the first PIN. The second was entered by the refund recipient.

The offender was at the time the sole account holder of a Commonwealth Bank account which he held in his own name.

From 3 March 2018 to 18 July 2018, the offender used the EFTPOS machine to process refund transactions to his Commonwealth Bank account on 217 occasions. The total value of the refund transactions was $57,766.34.

Each individual refund transaction ranged in value from $50 to $600. Multiple refund transactions were sometimes made on a single day.

The refund transactions came to attention of CEX management on 17 July 2018 when the director of CEX Australia was notified by the accounts department that the settlements were “off” and that a huge discrepancy had been identified between the money that was declared at the Gungahlin CEX store and the money that was banked.

After receiving this…

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 Kennedy

Details

AGLC: R v Kennedy [2021] ACTSC 80
Case: [2021] ACTSC 80
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, the case of R v Kennedy dealt with a charge of theft against Scott Kennedy, who had pleaded guilty to dishonestly appropriating money from his employer. The court was required to determine the appropriate sentence, taking into account the nature and extent of the offending, the offender's subjective circumstances, and the purposes of sentencing. The legal issues included the appropriate sentence for the theft, the consideration of a reparation order, and the impact of the offender's previous convictions and remorse on sentencing.

The court found the offending to be serious, involving a breach of trust by an employee, and noted the large number of transactions and the substantial amount stolen. The offender had immediate remorse and attempted to confess to the police, which the court took into account. However, the court rejected submissions that the offending did not warrant full-time imprisonment due to its unsophisticated nature, arguing that the amount stolen and the breach of trust warranted a significant sentence. The court considered comparable cases and found that while some involved lenient dispositions, they did not exclude a significant period of full-time detention for the type of offending in this case.

The court decided that the purposes of sentencing, including general and specific deterrence, denunciation of the conduct, and recognition of the harm to the victim, required the offender to serve a period of full-time detention. The sentence was set at 18 months, reduced from 24 months due to the offender's guilty plea, with five months to be served before suspension upon the offender entering a good behaviour order for three years. The court also ordered a reparation payment to the victim.

Orders