R v Kirby
[2016] ACTSC 47
•4 March 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Kirby |
Citation: | [2016] ACTSC 47 |
Hearing Date: | 4 March 2016 |
DecisionDate: | 4 March 2016 |
Before: | Burns J |
Decision: | See [14]-[18] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – particular offences – dishonesty offences – dishonestly obtaining a gain from someone else – dishonestly obtaining a financial advantage from someone else – no prior convictions – element of premeditation and planning – pleas of guilty – terms of imprisonment suspended – Good Behaviour Order imposed – reparation order made. |
Legislation Cited: | Criminal Code 2002 (ACT) ss 332, 333 |
Parties: | The Queen (Crown) Maria Kirby (Offender) |
Representation: | Counsel Ms M Moss (Crown) Mr M Hassall (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender) | |
File Number: | SCC 159 of 2015 |
BURNS J:
Maria Kirby, you entered pleas of guilty on an indictment dated
19 February this year containing two counts. The first is a count of dishonestly obtaining a gain from someone else, namely, the Australian Capital Territory, and that is contrary to s 333 of the Criminal Code 2002 (ACT) (the Criminal Code). The second count is dishonestly obtaining a financial advantage from someone else, namely, Officeworks Pty Ltd, contrary to s 332 of the Criminal Code.
The maximum penalty for the offence of dishonestly obtaining a gain from someone else contrary to s 333 of the Criminal Code is 500 penalty units, imprisonment for five years, or both. The maximum penalty for the offence of dishonestly obtaining a financial advantage from someone else contrary to s 332 of the Criminal Code is 1,000 penalty units, imprisonment for 10 years, or both.
You first appeared in the Magistrates Court by way of summons on 14 January 2015. At that time you were charged with 31 counts of dishonestly obtaining a financial advantage from someone else contrary to s 332 of the Criminal Code. The charges were adjourned on two occasions before a plea of not guilty was entered on 20 March last year. A brief of evidence was prepared and the matter was committed for trial on 22 June last year.
An indictment was filed on 20 August last year containing 55 counts. Following negotiations, on 15 February this year the Crown advised your legal representatives that it would accept a plea of guilty to the two counts which were contained on the recent indictment dated 19 February this year. As such, a fresh indictment was filed and you entered pleas of guilty on 22 February this year.
An Agreed Statement of Facts has been tendered and I will not now recite the facts in relation to this matter. It is sufficient to note that the offences involved multiple instances of dishonest use of a store account. The first count relates to dishonest use of that store account during a period when the account was the responsibility of your employer, the Australian Capital Territory (ACT).
The second count relates to a period after the Australian Capital Territory had directed the provider of the store account, Officeworks Pty Ltd, to close down the account. Apparently, there was some form of administrative oversight by Officeworks Pty Ltd and the account was not closed. As such, the second count relates to a period of approximately one month between 15 June 2011 and 15 July 2011, during which Officeworks Pty Ltd was responsible for the losses occasioned by your actions. The offences therefore occurred over a period of approximately 11 months, of which 10 months relates to the first count and approximately one month relates to the second count.
Subjective Features
I note that you are 38 years old and you have no prior convictions. You are responsible for the care of four children, two of whom suffer from disabilities identified as post traumatic stress disorder and anxiety due to exposure to domestic violence. Your life has been marred by exposure to domestic violence. You were exposed to domestic violence as a child. You lived an isolated childhood in which your father was violent and abused alcohol. He was violent towards your mother and also towards you and your siblings. You were also exposed to gambling at an early age and encouraged to engage in gambling.
You were married at an early age. Unfortunately, your marriage was also to a man who has abused you physically and emotionally. Your husband has been consistently violent throughout the course of your marriage. That has had, not surprisingly, a significant effect upon you and upon your children. The effects of the abuse which you suffered in your childhood and which you have continued to suffer during your marriage continue, I am satisfied, to afflict you to the present day.
I note that you have expressed remorse for these offences and I accept that you are remorseful. I note that you participated in a taped record of interview with police in which you apparently made some admissions. There is material before me which satisfies me that you suffer from depression, again, not surprisingly, bearing in mind your history. You are under treatment and taking prescribed medication in relation to that condition. You are also voluntarily undergoing therapy which will assist in avoiding any form of reoffending.
Consideration
I accept that there was an element of premeditation and planning with respect to these offences. However, it cannot be said that these offences were sophisticated. The method that you used to hide your tracks with respect to the use of this account was particularly unsophisticated and any cursory examination of the invoices would have revealed this offending. That is not to say that you are not responsible for what you did, but it is merely an observation that it was not a particularly sophisticated form of offence.
No reparation has been made by you to this time. However, I am satisfied that that is not because you do not wish to make reparation, rather it is because you are in a very difficult financial position and, as a matter of practicality, you are not in a position to pay any substantial amount by way of reparation. You have indicated a willingness to pay an amount by way of instalments in reduction of the amount that you owe. The total amount of losses occasioned as a consequence of your offending is $6,123.20. That is divided into an amount of $3,539.12 with respect to the first count and $2,584.08 with respect to the second count.
I take into account the fact that you have entered pleas of guilty to these offences. It cannot be said that these pleas were early pleas, but I will nevertheless reduce the otherwise appropriate sentences by an amount that I will soon refer to in order to reflect your pleas. Not only do those pleas, I am satisfied, reflect remorse on your behalf, but they also had significant utilitarian value. A trial with respect to a matter of this nature would have been a complicated and potentially lengthy affair.
Your counsel has submitted that it is not necessary to impose sentences of imprisonment with respect to these matters. Taking into account all of the circumstances and giving some weight to the schedule of previous decisions provided as part of the prosecution sentencing submissions, I am satisfied that it is appropriate to impose short terms of imprisonment with respect to these offences, but to suspend those sentences.
Sentence
With respect to the first count on the indictment I will record a conviction and you will be sentenced to 10 months imprisonment. As you have served no time in custody prior to sentence, that sentence will date from today, 4 March 2016. I have reduced that from 12 months in order to reflect your plea of guilty.
With respect to the second count, I will also record a conviction and again I will impose a sentence of 10 months imprisonment. Whilst the maximum penalty for that offence is higher than that for the first count, the period of time during which that offence was committed was much shorter than the period of time during which you committed the first count and also the amount involved was somewhat less. So for that reason I will impose the same penalty with respect to the second count.
That sentence of 10 months imprisonment with respect to the second count will be served such that eight months of it will be concurrent with the sentence for the first count and two months will be consecutive on the first count. Therefore, I have imposed an aggregate term of imprisonment of 12 months. That will be suspended forthwith and there will be a Good Behaviour Order for a period of 15 months, commencing today and you are to report to ACT Corrective Services forthwith. The conditions of the Good Behaviour Order are as follows:
(a)you are to accept the supervision of the ACT Corrections for that period of 15 months or such lesser period as deemed appropriate by your supervising officer;
(b)you are to obey all reasonable directions of officers of ACT Corrective Services during the period that you are subject to supervision; and
(c)you are to participate in any counselling or programs as directed by ACT Corrective Services, particularly concerning mental health issues and gambling addiction.
I will make reparation orders, and I make it clear that these are not conditions of the Good Behaviour Order that I have imposed. There will be a reparation order in the amount of $3,539.12 payable to the Australian Capital Territory. There will also be a reparation order in the sum of $2,584.08 payable to Officeworks Pty Ltd.
| I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 23 March 2016 |
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