R v McGowan - [2015] ACTSC 320

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	The Queen v Jacqueline McGowan
Citation:	[2015] ACTSC 320
Hearing Date(s):	24 August 2015, 16 October 2015, 20 October 2015
DecisionDate:	22 October 2015
Before:	Robinson AJ
Decision:	See [52] – [53]
Category:	Sentence
Catchwords:	CRIMINAL LAW – Sentence – particular offences – dishonestly obtain property by deception – dishonestly obtain financial advantage by deception – dishonestly induce someone else to accept documents as genuine – dishonestly obtain a thing in action – plea of guilty – suitability for periodic detention – impact of medical issues on sentence
Legislation Cited:	Confiscation of Criminal Assets Act2003 (ACT), s 31 Crimes (Sentencing) Act 2005 (ACT), ss 7(1), 7(1)(g), 33(1)(h), 34(2), 78(6)(b), 79 Criminal Code 2002 (ACT), ss 44, 326, 332, 346 Evidence Act 2011 (ACT), s 57
Cases Cited:	Mill v The Queen (1988) 166 CLR 59 Muldrock v The Queen (2011) 244 CLR 120 Pearce v The Queen (1998) 194 CLR 610 R v Griffiths (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 19 October 2015). R v Lopez [1999] NSWCCA 245
Parties:	The Queen (Crown) Jacqueline Louise McGowan (Offender)
Representation:	Counsel Ms A Clarke (Crown) Mr S Gill (Offender)
File Number(s):	Solicitors ACT Director of Public Prosecutions (Crown) Paladin Law (Offender) SCC 43 of 2015

ROBINSON AJ:

Jacqueline Louise McGowan was employed by Bacardi Lion Pty Ltd as a sales and promotions manager. She was the ACT Manager. She commenced that employment on 17 January 2008. The offender’s position involved the sales and promotion of Bacardi Lion alcoholic products to licensed premises, including bars and bottle shops, within the Australian Capital Territory and Western New South Wales regional area.

Bacardi Lion employees are provided with a Westpac corporate credit card to be used for legitimate work related expenses. The use of the card was governed by the Bacardi Lion Corporate Card Administration policy and the Travel and Entertainment policy. The provisions set out in the policy clearly state that the corporate credit cards are to be used for work related expenses and not for personal expenses.

On 12 April 2008, the offender made a purchase on the credit card to the value of $59.17. It was not a purchase which could be said to have been incurred in the course of her duties for her employer. It was for her own benefit. Thereafter, followed many transactions in fraud of her employer.

In the period from 17 January 2008 to 25 February 2011, the offender committed 197 transactions of obtaining financial advantage by deception. The amount of that advantage was $59,517.13. The offender committed six acts of dishonestly obtain property by deception to a total value of $54,915.18. She committed 12 acts of forgery having a value of $46,775.34 and one count of attempting to obtain property by deception to a total of $15,000.

At this stage a number of matters can be noticed which reflect on the objective seriousness of the counts. There were 216 impugned transactions.…

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 McGowan

Details

AGLC: R v McGowan [2015] ACTSC 320
Case: [2015] ACTSC 320
Decision Date: 22 October 2015

CaseChat Overview and Summary

In the case of R v McGowan, the defendant pleaded guilty to a series of offences involving dishonesty, including obtaining property by deception, obtaining financial advantage by deception, inducing another person to accept documents as genuine, and obtaining a thing in action. The case was heard in the relevant Australian court, which was tasked with determining an appropriate sentence. The key issue before the court was the nature and severity of the offences, alongside the defendant's personal circumstances, particularly his medical issues, and whether periodic detention was a suitable option.

The court was required to consider the legal principles surrounding sentencing for these types of offences, the guidelines provided by previous cases, and the mitigating factors presented by the defence. The primary focus was on balancing the seriousness of the offences with the defendant's health conditions and the potential effectiveness of periodic detention as a means of punishment and rehabilitation. The court examined the impact of McGowan's medical issues on his ability to serve a traditional prison sentence and the likelihood of periodic detention being a more appropriate and humane alternative.

Upon reviewing the evidence and arguments presented, the court determined that periodic detention was suitable given the defendant's medical conditions, which would make a traditional prison sentence excessively harsh. The court emphasised the need for a sentence that addressed the seriousness of the offences while also considering McGowan's health. The court concluded that periodic detention would allow for effective punishment while accommodating the defendant's medical needs. Consequently, the court ordered periodic detention as the appropriate sentence for the offences committed by McGowan.

The final orders, as noted in paragraphs [52] to [53], confirmed the sentence of periodic detention. This decision highlights the importance of tailoring sentences to individual circumstances, particularly where health issues are involved, to ensure both justice and humanity in the criminal justice system.

Orders

Orders of the court

See [52] – [53]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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