R v Kyla Michaela BURROWS

[2007] NSWDC 28

CITATION:	R v Kyla Michaela BURROWS [2007] NSWDC 28
HEARING DATE(S):	08/02/2007
JUDGMENT DATE:	8 February 2007
EX TEMPORE JUDGMENT DATE:	8 February 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	See paragraph [21]
CATCHWORDS:	Criminal law - Sentence when serving a sentence for a more serious matter - Obtain money by deception - Position of trust
LEGISLATION CITED:	Crimes Act
PARTIES:	Crown Kyla Michaela Burrows
FILE NUMBER(S):	06/11/0984
SOLICITORS:	NSW DPP Legal Aid Commission

SENTENCE

1 HIS HONOUR: Kyla Burrows appears for sentence today on four offences of obtaining money for herself by deception. When sentencing her for one of those, the most serious of the offences on the indictment, she asks that I take into account a further thirty-eight similar matters.

2 These offences all arose as part of the ongoing dishonest enterprise which Ms Burrows conducted in order to feed her drug addiction. Ms Burrows was awaiting sentence for supplying a prohibited drug, the prohibited drug being heroin. Despite being on bail for this matter she continued to use drugs herself.

3 She applied for and was successful in obtaining a job with a bathroom design company. As part of that job she was given access to the accounts of the company, which she was able to access electronically. She was able to transfer various funds and pay various suppliers. It was her responsibility to see that the company’s bills were paid.

4 A very short time after she began employment with this company she began to divert company moneys to her own purposes. A cursory glance at the company’s accounts would not reveal what the offender had done. She simply electronically transferred company moneys into accounts she controlled, either herself or with her boyfriend, but made it look as though the money had been used to pay the company debtors. This was not a terribly sophisticated scheme and one that was always going to come undone when someone who was owed money by the company made an enquiry as to why they had not been paid.

5 Shortly before things came unstuck for Ms Burrows she resigned, I gather in anticipation of her being sentenced for the drug supply matter. Shortly after that one of the people who was owed money by the company rang one of the company’s principals and enquired why a bill had not been paid. This caused the principal to have a look at the company’s accounts and what the offender had been doing was immediately revealed.

6 Quite clearly there are a number of aggravating features of the offender’s conduct which must be reflected in the sentence I impose upon her.

7 Firstly, as I have mentioned, she was on bail. Secondly, she has abused a position of trust that the company placed upon her. Thirdly, this was a planned and organised dishonest scheme.

8 I should mention that those last two aggravating features are common in offences of this nature and so I must be careful not to double count when I consider the extra punishment that should be imposed on the offender because of those aggravating features.

9 The offender was eventually sentenced for her drug supply matter. She received a non parole period of twenty months, to date from 8 January 2006 and to expire on 7 September 2007 and eligibility for parole of sixteen months to expire on 7 January 2009. Quite clearly the sentence I impose upon Ms Burrows must have an element of accumulation, but I must bear in mind the principle of totality. For that reason the crown tendered to me the facts surrounding the drug supply offence for which the offender had earlier been sentenced.

10 There are matters in Ms Burrow’s history which suggest the desirability of a longer than usual period of eligibility for parole. I will refer to some of them in due course, but now is a convenient time to mention a problem which has existed for sometime.

11 When a judge comes to sentence an offender, who is already serving a sentence for what is a more serious matter, and where that person has, on the existing sentence, been given an extended period of supervision on parole, it is an unfortunate but necessary consequence of the subsequent sentence that that period must be eaten into. What happens is that often the new non parole period is too low to reflect the criminality of an offender’s conduct and the period of eligibility for parole is too short in view of the need for an offender to be supervised upon release from custody. But that, as I have said, is an unfortunate but necessary consequence of the way the law says that sentences must be imposed accumulatively on existing sentences.

12 The offender is now thirty-one years old. She had a troubled schooling and began to use drugs at a relatively young age. A police officer once told me when I enquired whether he had much experience in drug related crime that he thought that almost all crime was drug related. So it appears to be in the present case. The offender tried heroin at eighteen and has been using intravenously on a daily basis from when she was twenty-three years of age. There were some episodes when she was drug free, but on each occasions she has relapsed. Her drug use led, I gather, to her drug supply activities. Her drug use, which she recommenced upon release on bail, also led to these present offences. Heroin is a not a cheap commodity and so the offender was unable to supply her drug habit and that of her boyfriend from legitimately obtained moneys. But she had a choice. She could either do something about her drug addiction, recognising that she could not afford to use drugs at the level she wanted to, or she could, and she did, obtain money illegally and spend it on drugs.

13 It is not the case that those who use drugs are incapable of making choices as to whether they will commit illegal activity. It may be harder for them, due to the physical and psychological effects of drugs than it would be for a person who was not a drug user, but it is certainly not the case that it can be said that Ms Burrow’s moral culpability is low. She took the decision to steal and abuse a position of trust in order to fund her drug habit.

14 Despite Ms Burrows troubled schooling and despite her drug addiction she has been able to demonstrate that she can be a productive member of society. One of the jobs she had whilst she was on bail was with the Trading Post. She performed exceedingly well in that position. It is even suggested that while working for the employer from whom she stole she also, somewhat paradoxically, reorganised their accounts to the benefit of the company. This is a case where Ms Burrows has a lot to offer society and will be able to do so if she is prepared to deal with her drug habit. She has made efforts to do that whilst in custody, but she tells me, and I accept it immediately because it is consistent with what I know about life in women’s prisons, that it is difficult to obtain access to counselling, it is difficult to obtain access to psychologists and it is difficult, therefore, to deal with the underlying issues that have led to someone taking drugs in the first place.

15 Ms Burrows does report that she does have underlying issues which have contributed to her drug use. She has memories of, what I will call inaccurately “distressing events”. I am not entirely clear whether those memories are accurate or not, but one thing is undeniable and that is that she has those memories. This is one of the reasons an extended period of supervision whilst on parole would be to Ms Burrows’ benefit. It would, of course, also be to the community’s benefit, because anything that can be done to assist Ms Burrows to overcome her drug addiction and become a productive member of society not only helps Ms Burrows but helps the community as well.

16 Ms Burrows pleaded guilty at the earliest opportunity, although an indictment was presented in this matter and she pleaded guilty today before me. She had earlier entered pleas to all matters at the Local Court. I will discount the sentence I would otherwise have imposed, therefore, by 25 per cent to reflect that circumstances.

17 These offences were serious and ongoing. The fact that there are matters on the form 1 to be taken into account in relation to the fourth matter on the indictment demonstrate a need for a greater weight to be given to retribution and personal deterrence that would otherwise be the case.

18 Ms Burrows’ offences were regular and ongoing. They started soon after she began working for her employer and only stopped when she left that employment. I do recognise this is not a case where the offences only stopped when the offender was detected, that is a significant matter in the offender’s favour. Also in her favour is that she must have recognised that she would be detected as soon as a person whose bill had not been paid questioned her employer. Despite that circumstance she did not run away, but remained living at her address and so was easily found by police when they came to arrest her on these matters.

19 The offender is remorseful. I accept that she is sorry for what she has done. I accept that she recognises the significant impact that her dishonesty has had on a small business and more importantly the people who expend a great deal of hard work, I am sure, in running that business. I accept that the offender has good prospects of rehabilitation, but they will depend significantly on the offender’s attitude towards drugs upon her release from custody. It is within her power to overcome her drug habit. It is something that she needs to choose to do upon release from custody.

20 This is a matter where compensation is sought. It is appropriate that I make an order for compensation in favour of Candana Designs Pty Limited. Despite the fact that the offender is in custody and will continue to be there for sometime I expect that she will eventually be in a position to commence repaying her employer for the money she has taken from them. She gave evidence in court today of a willingness and preparedness to do so. I will accept what she says in that regard and so I will make the compensation order sought by the crown.

21 The sentences I impose are as follows: On counts 1, 2, 3 and 5 on the indictment Ms Burrows is sentenced to imprisonment for a fixed term of twelve months, to commence on 8 September 2007. Those sentences are fixed terms because of the sentence I will now announce on count 4. I set a non parole period on that count to commence on 8 September 2007, it will expire on 7 September 2008 on which date the offender is eligible to be released to parole. I set a head sentence for that matter of two years. I also make an order for compensation in the sum of $90,059.17 that sum to be paid to Candana Designs Pty Limited.

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