R v Malarone
[2017] ACTSC 58
•1 February 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Malarone |
Citation: | [2017] ACTSC 58 |
Hearing Date: | 1 February 2017 |
DecisionDate: | 1 February 2017 |
Before: | Burns J |
Decision: | See [14]-[15] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – obtaining financial advantage by deception – plea of guilty – very good prospects for rehabilitation – terms of imprisonment – suspended – Good Behaviour Order – Reparation Order. |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) Criminal Code 2002 (ACT) s 326 |
Cases Cited: | R v Tucker (Unreported, ACT Supreme Court, Refshauge J, 30 August 2010). |
Parties: | The Queen (Crown) Achoe Malarone (Offender) |
Representation: | Counsel Ms V Conliffe (Crown) Mr A Webb (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Rachel Bird & Co Solicitors | |
File Number: | SCC 238 of 2016 |
BURNS J:
Achoe Malarone, you have pleaded guilty to an offence of obtaining financial advantage by deception contrary to s 326 of the Criminal Code 2002 (ACT). The maximum penalty for that offence is 10 years imprisonment, a fine of $150,000, or both.
A full Statement of Facts has been tendered. I will not now recite the facts. It is sufficient to note that between 19 October 2014 and 3 May 2015 you processed a total of 15 fraudulent transactions at JB Hi-Fi stores located in Phillip and Belconnen in the Australian Capital Territory (ACT). The total value of the fraudulent transactions was $22,501.50. During the period that you were committing these offences you were employed by JB Hi-Fi as a store manager.
Offences of this nature are considered particularly serious by the law. Offences of this nature involve a significant breach of trust. You were able to use your knowledge of your employer's accounting system to commit these offences.
You do not have a prior criminal history, and ordinarily that would entitle you to some significant mitigation or leniency with respect to this matter, particularly as you are 41 years of age. However, matters of this type do not attract as much leniency based upon prior good history as other types of offences, and that is because you would not have been put in a position to be able to commit this offence if it were not for the fact that you were a person of previous good character. So in other words you were able to trade upon the fact that you had no prior convictions to place yourself in a position of trust with your employer which then enabled you to commit these offences.
It is also significant, of course, that these offences occurred over a period of some six and a half months and involved the misappropriation of a substantial sum of just over $22,500.00. It is also correct, as the Crown points out, that you only ceased committing these offences because you were discovered by the loss prevention officer within the store. I accept that there was a degree of planning and premeditation involved in the commission of this offence. However, the mechanism used to commit the offence was not particularly sophisticated.
I take into account the contents of the Pre‑Sentence Report. You are in a stable relationship and you have two children. At the time of these offences you were suffering financial difficulties as well as various stresses. You were under pressure at home because of the fact that your wife suffers from an autoimmune disease, one of your daughters is autistic and requires special arrangements and your other daughter also has food allergies.
I accept that those matters, together with your financial pressures, which were caused, in part, by you losing your employment in Melbourne when your position there was made redundant and also losses occasioned when you sold your home in Melbourne and moved to the ACT, placed significant pressure upon you. At that time, you were also abusing alcohol, although there is no evidence to suggest that your abuse of alcohol at that time had any particular connection with these offences.
You have expressed remorse for your offending and I am satisfied that that is genuine. You entered a plea of guilty to this charge in the Magistrates Court at an early opportunity which supports the finding that I have made that you are remorseful with respect to your offence. I also accept that that had a significant utilitarian value.
I note that the author of the Pre‑Sentence Report assessed you as being at low risk of reoffending. You are currently employed, you have stable relationships and you have stable housing, and I accept the assessment that was made by the author of the Pre‑Sentence Report.
In my opinion, you have very good prospects for rehabilitation. I also take into account your evidence that you are willing to make reparation, although reparation at this time has not been sought. As I indicated in discussion with the Crown, I propose to make a reparation order based upon a sum which was misappropriated, being just over $22,500.00, less a sum of approximately $4,500.00, which you say was retained by your employer from entitlements owing to you at the time that your employment was terminated. So that I will make a reparation order ultimately in the sum of $18,000.00, but that should not be seen as in any way precluding your employer from pursuing whatever civil remedies it may have.
I will reduce by approximately 25 per cent the sentence that I would otherwise have imposed in order to reflect your plea of guilty with respect to this matter.
I am grateful to the Crown for providing me with a list of sentences that have been imposed in prior matters. The Crown, in particular, took me to a sentence imposed by Refshauge J on 30 August 2010 in R v Tucker (Unreported, ACT Supreme Court, Refshauge J, 30 August 2010). In that case, the amount which was misappropriated was just over $58,000, so significantly greater than the sum involved in this case. The course of conduct involved in that case extended over a period of two years and four months which, of course, was also significantly greater than the course of conduct in the present matter. The offender in that case was 38 years of age but had previous convictions from 18 years before, although apparently they were not considered particularly relevant by Refshauge J at the time of sentencing. His Honour allowed a 25 per cent discount for an early plea of guilty. A sentence of 18 months imprisonment was imposed and, as I understand it, six months of that was to be served by way of full‑time imprisonment, with the remainder suspended with a Good Behaviour Order.
Your counsel has conceded, and I think quite correctly, that the nature of this offence calls for a term of imprisonment. In my opinion, nothing other than a term of imprisonment would be appropriate in order to satisfy the requirements of sentencing and, in particular, the need to deter others from committing this type of offending. The Crown also submitted that a term of imprisonment was inevitable with respect to this offence, but said that how that term of imprisonment was to be served was a matter for the Court. Having considered all of the circumstances, I propose to proceed by way of a suspended sentence.
Sentence
I record a conviction and you will be sentenced to 15 months imprisonment, commencing today, 1 February 2017 and expiring on 1 May 2018. That sentence will be suspended forthwith. There will be a Good Behaviour Order for a period of two years from today with the following conditions:
(a)accept the supervision of the Director‑General or that person's delegate for that period of two years or such lesser period as may be deemed appropriate by your supervising officer;
(b)report to ACT Adult Corrections within 48 hours; and
(c)complete 150 hours of community service as directed by an authorised officer within a period of 12 months.
In addition, I will make a Reparation Order under the Crimes (Sentencing) Act 2005 (ACT) requiring you to pay the sum of $18,000.00 to JB Hi-Fi Group trading as JB Hi-Fi by instalments of $1,000.00 per month, with the first payment due on or before 28 February 2017 and instalments due monthly thereafter.
| I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 24 March 2017 |
0
0
2