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 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 email from accounts, the director requested the bank statements for the Gungahlin store. A review of the bank statements indicated that the store was processing an “inordinate amount of refunds”.
A group of CEX Australia senior executives then accessed CCTV footage from the Gungahlin store. The group was able to establish, using the timestamps from the transactions, that it was the offender who was processing refund transactions onto his personal card.
On 18 July 2018, the offender processed three refund transactions, valued at $600, $300 and $300 respectively. Shortly after the final transaction, which took place at about 2:41pm on that date, the director and CEX Australia’s operations manager, attended the Gungahlin store and spoke with the offender. The three left the store and attended a nearby coffee shop, where they had the following conversation:
(Operations manager): You know why we’re here?
The (offender): Yes.
(Operations manager): We just want to know why, we have it on camera.
The (offender): I’m sorry, I needed the money.
At this point, the offender handed his store keys to the operations manager who informed him that his employment was terminated.
The offender then went to Gungahlin police station in an attempt to participate in a recorded interview. The offender was told that the police were not able to facilitate his request at that time.
A short time after, the operations manager downloaded the CCTV footage which depicted the offender engaging in the offending conduct between 23 June 2018 and 18 July 2018 and provided it to police.
On 18 December 2018, the offender participated in a digitally recorded interview at Gungahlin police station. In the course of that interview, the offender made full and frank admissions to the offending conduct.
The offender was only summonsed to appear in September 2020 and was first before the Magistrates Court on 27 October 2020. There is no explanation for the delay by the informant in laying the charge.
Victim impact statement
A victim impact statement was included in the Crown tender bundle. It was prepared on behalf of CEX by the operations manager who was required to deal with the staff related consequences of the offender being terminated following the discovery of his offending. I placed no weight upon the victim impact statement as the author was not made available for cross examination: see Crimes (Sentencing) Act 2005 (ACT), s 53(3). In any event, the consequences of the offending are consistent with what one might have expected would arise from offending of this nature and extent and, had I placed weight on it, it would not have affected my ultimate sentence.
Objective seriousness
The range of offending that may be the subject of a charge of theft is unlimited in terms of monetary value. The present offending involved 217 separate occasions of dishonesty. It was unsophisticated in that it involved transfers which could be readily traced to the offender and which were of such a quantum and number that any clear‑sighted consideration would have resulted in a realisation that it would be detected. The offending involved a gross breach of the trust placed in the offender by his employer. The offending is above the midrange of objective seriousness for this offence.
Subjective circumstances
The offender’s subjective circumstances are set out in a pre-sentence report dated 23 April 2021. The offender also gave oral evidence to similar effect.
He is 31 years old. He was born in Queensland and is one of six children. He describes his upbringing as loving and supportive. His father was a truck driver who was required to spend long periods of time away from the family due to his employment. The offender was required to move often during his childhood which he said made it difficult for him to make friends.
The offender’s parents currently reside in the ACT and he describes having a good relationship with them. He has also reported positive relationships with his six siblings, some of whom reside in the ACT.
The offender resides with his long-term de facto partner. He reported that his partner was supportive of him, although he acknowledged that the discovery of his offending had placed a strain on the relationship.
The offender completed Year 10. He was employed in the retail industry on a casual basis, however, resigned from that employment earlier this week.
The offender did not report any issues with the management of his finances and told the author of the report that he does not have any significant debts. His partner earns a full‑time income and he is in receipt of a Centrelink benefit to supplement his wage.
The offender does not have a history of problematic alcohol consumption and does not have any relevant history of drug use.
He reported having engaged a general practitioner to obtain a mental health care plan. The offender has also completed a six-week psychological intervention to treat symptoms of anxiety and depression. The offender said his mental health was currently stable but indicated that he was open to engaging in further counselling. His partner told the author of the report that she considered that he would benefit from ongoing assistance to manage his anxiety and depression symptoms.
The offender indicated that he agreed with the Statement of Facts and acknowledged that his offending was unlawful. While he indicated that financial hardship was a reason for the offending, he did not offer this as a justification of his actions, and in the opinion of the author, he recognised the impact on the victim.
The offender was assessed as being at a low risk of general reoffending. His primary risk factors were identified as his mental health, under employment, financial mismanagement and history of offending.
The offender was assessed as suitable for a good behaviour order with a low level of intervention, suitable for a community service work condition and suitable for an intensive corrections order (ICO). He is capable of meeting a financial penalty.
The offender gave evidence and was cross-examined. Consistent with his post offence conduct described in the terms of the pre-sentence report, he made clear his remorse and regret. References from his partner and his brother were consistent with this.
He has attempted to repay some money to CEX but has not received any cooperation allowing him to make a payment. He has an amount of $6001.18 in a separate bank account available for payment.
Criminal history
The offender has one previous conviction in New South Wales for an offence of a similar kind. In 2013 he received a sentence of nine months’ imprisonment, which was suspended on entry into a bond and payment of compensation of $7735.35, for an offence described as “steal property as clerk/servant”. There were no other details of this offending but the amount of compensation referred to and the imposition of a custodial sentence, even if suspended, indicates that it was reasonably serious.
The offender also has two unrelated driving offences.
Plea of guilty
The offender pleaded guilty to the current offence at the third mention in the Magistrates Court prior to the provision of the Crown brief of evidence. I will allow a reduction of 25 percent of the custodial sentence that I would have otherwise imposed.
Time in custody
The offender has spent no time in custody in relation to this offence.
Reparation order
The Crown sought a reparation order for the amount that had been stolen. There was evidence that the amount stolen was not covered by the business’s insurance. Notwithstanding this, counsel for the offender submitted that a reparation order should not be made because it was difficult to understand why the loss was not covered by insurance. I do not accept that submission. In my view, the evidence established a loss and it is a clear case where a reparation order should be made.
Consideration
The offending was serious, involving a large number of transactions over a period of months. It involved a gross breach of trust by an employee. Counsel for the offender made submissions that it did not warrant full-time imprisonment because it was uniquely unsophisticated and readily detectable, the amount in question was not so great as to render full-time imprisonment the only appropriate sentence, the period of offending was comparatively short, CEX was the Australian arm of an international chain of second-hand electronic stores and there was no planning involved. Counsel submitted that the purposes of sentencing could be met by way of an ICO. I do not accept these submissions. While the offending was unsophisticated that does not render it benign. The amount stolen was very substantial. Rather than being comparatively short the offending took place over four and half months. The fact that the victim of the offending may be an international chain is not relevant. While it is open to take into account the consequences of the offending for the particular victim, which may be affected by its financial circumstances, it is not open to treat the offending as less serious because it is directed to a large company per se. So far as planning is concerned, it is not correct to say that there was no planning in that the offending obviously involved a plan to deploy the offender’s PIN as part of a scheme to disguise the thefts as customer repayments. That was relatively unsophisticated but it did involve a plan.
I do accept that the offender had immediate remorse for his conduct once it was discovered and attempted to confess to the police. I also take into account the unexplained and apparently unreasonable delay on the part of police in bringing the charges against the offender. I accept that during this period the offender was left in an uncertain state of suspense and this will have had an impact upon him, both by way of an immediate psychological impact and also by creating uncertainty for him in relation to his employment. I have taken that impact into account in determining the length of the appropriate sentence.
I have also taken into account the comparable cases to which I was referred by the parties. The Crown helpfully provided a table of comparable cases. Those involved a range of dispositions ranging from good behaviour orders to substantial periods of imprisonment. A number of them which involved comparable amounts stolen involved partially suspended sentences of less than two years. The two cases relied on specifically by the offender were R v QU [2019] ACTSC 155 (QU); R v Riordan [2015] ACTSC 26 (Riordan). QU involved a disposition by way of ICO, notwithstanding the amount stolen involved significantly more than in the present case. Riordan involved a fully suspended sentence. While both cases involve lenient dispositions, they do not indicate a pattern of sentencing in this court which would exclude a significant period of full-time detention for offending of the type in the present case.
In my view, the purposes of sentencing, particularly the need for both general and specific deterrence, denunciation of the conduct and recognition of the harm done to the victim require the offender to serve a period of full-time detention. The starting point is a sentence of imprisonment of two years reduced to 18 months on account of the plea of guilty. The sentence will be suspended after five months upon the offender entering into a good behaviour order for a period of three years. I will also make the reparation order sought.
Orders
The orders of the Court are:
1. On the count of theft (CC2020/9608) the offender is convicted and sentenced to imprisonment for 18 months from 28 April 2021 until 27 October 2022 which is to be suspended after the offender has served five months’ imprisonment upon him entering into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of three years.
2. A reparation order under s 19 of the Crimes (Sentencing) Act 2005 (ACT) requiring the offender to make reparation to CEX Pty Ltd, Shop 19, 30 Hibberson Street Gungahlin ACT in the sum of $57,766.34.
| I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 13 May 2021 |
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