R v McGowan
[2015] ACTSC 320
•22 October 2015
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 Evidence Act 2011 (ACT), s 57 |
Cases Cited: | Mill v The Queen (1988) 166 CLR 59 Muldrock v The Queen (2011) 244 CLR 120 |
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. The mathematical calculation of the money involved in the crimes came to $129,432.31. The net loss was slightly smaller. The dishonest conduct in question was committed over about a three year period. That conduct concerned a breach of trust by an employee against her employer. False documents were brought into existence both to perpetrate and cover up the crimes. There was a degree of planning once the “system” was learned. I set this out further below.
The offender pleaded guilty to four “rolled up” charges. These were to the effect:
(a)Between 1 April 2008 and 28 February 2011 the offender by deception dishonestly obtained a financial advantage to the value of $59,517.13 from Bacardi Lion. (Contrary to s 332 of the Criminal Code with 10 years maximum penalty).
(b)Between 1 April 2008 and 28 February 2011 the offender by deception dishonestly obtained property, namely things in action to the value of $54,915.18 belonging to Bacardi Lion. (Contrary to s 326 of the Criminal Code with 10 years maximum penalty).
(c)Between 1 April 2008 and 28 February 2011 the offender made false documents with the intention of using the documents to dishonestly induce someone else to accept the documents as genuine. (Contrary to s 346 of the Criminal Code with 10 years maximum penalty).
(d)On 1 December 2010 the offender attempted by deception dishonestly to obtain property, namely, a thing in action to the value of $15,000 belonging to Bacardi Lion. (Contrary to s 44 and s 332 of Criminal Code with 10 years maximum penalty).
As a result of these transactions, Bacardi Lion has suffered a loss of $114,432.31. I interpolate here to record that Bacardi Lion would also have suffered loss in and about the audit and investigation process once it was clear that an employee had been dishonest over a number of years.
Detection
By early January 2011 Bacardi Lion started to query some expenses and “lost” receipts.
On 28 January 2011 Bacardi Lion suspended the operation of the offender’s corporate credit card in circumstances to which I will refer to below.
On 1 February 2011 the offender offered her resignation verbally.
On 18 February 2011 the offender was “stood down” pending the outcome of an investigation.
After several communications between Bacardi Lion and the offender relating to personal transactions and forgeries on the corporate credit card, the offender admitted on 19 February 2011 that she had taken $59,517. At that time, Bacardi Lion was unaware of the offender’s other means of dishonesty.
On 25 February 2011 the offender’s services were terminated by Bacardi Lion.
Later, police executed a search warrant on 17 July 2013 at the offender’s home. The offender was not forthright with the police on that occasion in relation to their questions about items in the home. She continued to minimise her criminal conduct.
The offender did not voluntarily cease her offending before she was caught. Such an act would have had substantial significance. (Regina v Lopez [1999] NSWCCA 245 at [18].
Custody and Plea of Guilty
The offender was summoned to Court on 8 November 2013. On 26 February 2015 the offender was committed to the Supreme Court following a negotiation in relation to 216 charges to which she pleaded not guilty. On 4 June 2015 the offender pleaded guilty upon arraignment to the current charges. The four counts in the indictment represent, in a “rolled up” way, the 216 transactions.
I take into account the utilitarian value of the belated pleas, albeit in the face of a strong Crown case. I am not sure that there was genuine remorse shown by the offender in that plea. I am sure that the offender was and is undergoing turmoil concerning her situation. I will allow a discount of 10% for the utilitarian value of the plea against a very strong Crown case.
Modus Operandi
It is not necessary to say much about the system put in place by a Bacardi Lion to keep track of employees’ expenses incurred by use of the corporate credit cards. That system did not work well against a dishonest employee. The offender was able to learn the system in place and circumvent it. Supervisors would generally only be able to view the amount of expenditure, date and the reason given by the employee for that expense. Copies of receipts were rarely checked and it was also possible to circumvent these checks by further dishonesty. No doubt, over time, the offender obtained a real insight into the practical operation of the system in place. The offender simply exploited weaknesses as she perceived them. The system was vulnerable to dishonest employees. For the purposes of sentence, I find that the modus operandi of the offender was not sophisticated but relied on her learned knowledge of the practical operation of the system.
The forgeries were committed when necessary to cover up dishonesty or obtain property outside what the offender believed might be queried. These forgeries were also used by the offender to cause Bacardi Lion to make direct payments to an “alleged” customer of Bacardi Lion but with the benefit of that payment accruing to the offender.
Repayment of Stolen Money
On the first day of the sentencing hearing I received into evidence a letter dated 20 August 2015 on the letterhead of “Paladin Law” and signed by Lisa Stone, solicitor for the offender, addressed to the Director of Public Prosecutions. That letter made reference to a restraining order under s 31 of the Confiscation of Criminal Assets Act2003 made by the Court on 23 September 2014 and amended on 24 April 2015 in proceedings SC 17 of 2015. The letter, in substance, offers to assist the facilitation of the sale of joint property to raise the amount of $114,432, that amount being sought by way of reparation. The letter also makes clear that the offender’s husband is joining in that repayment.
An order under s 31 of the Confiscation of Criminal Assets Act 2003 has the effect similar to an interlocutory injunction prohibiting dealing with property until further order.
The Crown directed my attention to s 34(2) of the Crimes (Sentencing) Act. That section is as follows-
In deciding how an offender should be sentenced for an offence, a court must not reduce the severity of a sentence it would otherwise have imposed because of an automatic forfeiture of property, a forfeiture order, or a penalty order, under the Confiscation of Criminal Assets Act 2003
It should be remembered that under s 7(1) and s 7(1)(g) of the Crimes (Sentencing) Act a sentence is imposed for, amongst other reasons, to make the offender accountable for his or her actions and to recognise the harm done to the victim of the crime and the community. Under that same Act per s 33(1)(h), the Court must consider any action the offender may have taken to make reparation for any injury, loss or damage resulting from the offence.
I admitted into evidence, firstly on the voir dire, and then pursuant to s 57 of the Evidence Act, testimony and documents relating to the sale of the Banks property.
It is necessary that I make clear findings on this issue for the Crown submitted very strenuously that I fell into error in even taking evidence for the purpose of s 33(1)(h). It was the Crown’s submission that s 34(2) precluded taking this evidence for that purpose.
My finding are-
(a)There is at present an order under s 31 restraining the offender from dealing with the Banks property
(b)The Banks property is jointly owned by the offender and her husband
(c)The Banks property is mortgaged. The Mortgagee is in the process of exercising a power of sale.
(d)The net proceeds are likely to raise $114,432.31 after payment of the debt and costs of sale.
(e)The Banks property is not “proceeds of crime” nor is it “tainted” property.
(f)The offender’s husband has assigned/mandated his beneficial interest in the proceeds of sale to the ACT Public Trustee.
(g)If the proceeds are insufficient to recoup $114,432.31 there are fall back arrangements in place to raise the balance.
(h)The offender’s husband, as “Interested Party One”, is a party to proceedings SC 17 of 2015.
(i)Ex 15 evidences an agreement last signed on 12 October 2015 between the ACT DDP and Mr and Mrs McGowan for the disposition of the net proceeds of sale of the Banks property and its payment to ACT Public Trustee.
(j)I am satisfied that the Attorney General will pay out the sum of $114,432.31 to Bacardi Lion. I find this on the basis that the property is not tainted property nor proceeds of crime and the content of the emails in Ex 14.
(k)The precondition of s 34(2) is not satisfied, at least at the date of taking this evidence. There has been no automatic forfeiture of property, a forfeiture order, or a penalty order, under the Confiscation of Criminal Assets Act 2003.
I appreciate that the offender is acting to an extent under two strands of coercion in making reparation. Inevitably, a final order will be made if the offender does not take the initiative. Secondly, because of the extant sentencing hearing, the offender sees it in her interests to cause the money to be repaid.
I also appreciate that it falls to the offender’s husband and family to bear a burden in the process as distinct from the offender.
I propose to take into account the offender’s co-operation and participation in the process.
Subjective Circumstances of Offender
On the sentencing proceedings I received into evidence number of documents. These were:
(a)a presentence report dated 17 August 2015
(b)a report of Dr Antoinette Harmer dated 8 August 2015
(c)a character reference under the hand of Murray Fuller dated 14 June 2015
(d)a further reference under the hand of Maureen Babler, the Parish Secretary of Corpus Christie Parish dated 11 August 2015
(e)a document entitled “Patient Health Summary” printed on 6 July 2015
(f)two further reports concerning suitability for periodic detention
(g)clinical notes evidencing Professor Jones’ consultation
(h)report of Dr Baker
The offender was aged 33 when she commenced her dishonest conduct. She is now 40 years of age. She gave evidence at the sentencing hearing. She has recently been diagnosed with Major Depressive Disorder since the discovery of the criminality.
The offender had a particularly difficult childhood. She suffered both physical and mental abuse and grew up in financial stringency. The consequence of this, it seems, is that the offender was strongly motivated to behave in different ways. Dr Harmer, psychologist, described this in the report-
It appears as though she felt a need to not repeat the mother’s behaviour of financially restricting the father and children. This appears to have led to an urge to behave in ways that distance herself from her mother in every way, and hence she did not manage their finances and spending within the limits of the family income. By using the work credit card to make purchases of a personal nature, she created a lifestyle and relationships with her family that enabled her to feel that she was different to her mother, and are therefore loving and supportive of her husband children.
Dr Harmer also gave evidence and in cross-examination she explained that the above was an explanation for the offender’s conduct did but it did not make the offender do anything. It was an explanation for the psychological position that the offender was in when she herself made the decisions to offend.
The offender completed year 12 in 1992 and thereafter attended UTS and graduated after three years in 1995 with a Bachelor of Business Management. During that time at university and up to the time when she had her first child at the age of 22, the offender worked in the liquor industry. The position that she acquired with Bacardi Lion had a commencing salary of about $58,000 which was subsequently increased by CPI increments to about $65,000 at the time of her departure. She was also entitled to bonuses. At the same time her husband was earning about $50,000 in his position. The offending added about $38,000 to the household per year. Of course, no tax was paid on this later figure.
The offender agreed in evidence that she had many opportunities to discontinue the criminal conduct. She did not take them up.
The offender now lives in Ulladulla with her husband and two teenage children. She is currently unable to work due to poor physical health and chronic pain.
The offender has been diagnosed with Major Depressive Disorder and has attempted suicide twice since the discovery of her crimes. She receives ongoing psychiatric treatment for this condition and is taking significant medication.
In respect of her physical health, the offender gave evidence that in February 2012 Professor Jones had had to remove 13 inches of her bowel. She was forced to wear a colostomy bag and suffered infections and minor operations. After a year this operation was reversed in February 2013. Unfortunately, this further treatment has not been successful and in September 2015 Professor Jones has proposed that the large bowel be removed entirely. That will have a very significant and permanent impact upon the offender. Besides recovery from the operation, the offender will have the equivalent of a colostomy bag (an ileostomy bag from the small intestine) for the rest of her life. Her diet will be restricted to eating “mushed foods and things like that”. The recovery from the operation is itself not strait forward because the surgeon requires access to the entire abdomen to do the removal and to create the exit point. After that the patient needs to adjust and accept their new position. On the evidence before me that may prove difficult in cases. Dr Levy gave evidence that a given patient may require access to different persons in what he described as a team of clinicians “to help the client manage this now lifelong issue”
Undoubtedly, a custodial sentence will be a significantly greater burden on this offender than other offenders who enter without chronic pain, depression and the physical difficulties detailed above. (Muldrock v The Queen (2011) 244 CLR 120 at [19]).
There is evidence that some medication which the offender currently takes may become unavailable to her in a prison setting. Dr Levy, the Clinical Director of Justice Health Service, was called to give evidence on this subject and also on the conditions pertaining to periodic detention as it would be for someone in the offender’s physical and mental health position. This latter aspect I deal with below.
Dr Levy gave reasons why drugs, which could be the subject of commodity trading, were sought to be restricted as far as possible in the prison system. He gave evidence of a preferred practice of not continuing such drugs if at all possible. A fair conclusion, however, is that if the prisoner had a clinical need for any such drug it could and would be administered. Every case was considered on its clinical merits.
The evidence overall persuades me that the offender is now truly ashamed of her behaviour and her situation in life and that she has an understanding of the seriousness of it. Two suicide attempts by the offender by prescription drug overdoses are related to this shame.
The offender retains the confidence and support of her husband.
I assess the risk of reoffending as low. That is also the opinion of the author of the Pre-Sentence Report. I accept also that the offender has some insight into her behaviour. That is the view of both Dr Harmer and the author of the Pre-Sentence Report.
Suitability for Periodic Detention
I referred the offender to ACT Corrective Services for an assessment of her suitability for periodic detention. She was assessed as not suitable on medical grounds. In a supplementary report dated 20 October 2015 this was elaborated upon as follows-
Ms McGowan experiences chronic pain as a result of previous bowel surgeries. She is also receiving ongoing psychiatric care because of her poor mental health. She is dependent on a combination of antidepressant and antipsychotic medications as well as both opioid and non-opioid based pain medications. She is also currently awaiting further surgery.
Section 78(6)(b) of the Crimes (Sentencing) Act requires me to record reasons why I have decided to impose periodic detention where the Pre-Sentence Report recommends against such a course.
I had the benefit of Dr Levy giving evidence on the conditions which would pertain to a person in the offender’s position in respect of periodic detention. The offender’s physical and mental status was put to the doctor in some detail. Dr Levy outlined the precise processes which would be followed and the medical facilities available and then related these to the offender’s physical and mental status.
The Court Duty Officer was also called. He had properly prepared his report in accordance with Table 79 to the Crimes (Sentencing) Act. He concluded that the sum total of the “indications” under the Table made the offender an unsuitable candidate. Dr Levy’s evidence convinced me that, in the particular circumstances, I should depart from his recommendation.
Prior Criminal Record
The offender has no prior criminal record. It also appears that the offender has been engaged positively in charitable works for the benefit of the community.
Totality
The offender stands for sentence for four offences. In accordance with Mill v The Queen (1988) 166 CLR 59, 63, I have had regard to the totality of the overall sentence.
I have had regard to the principle in Pearce v The Queen (1998) 194 CLR 610 and have avoided punishing the offender twice for what could be thought to be, in substance but not form, some common features of the offences. The making of the false instruments enabled the obtaining of the money and also assisted concealment of the dishonest manner in which the money was obtained.
I will order that the sentences are to be served partly concurrently and partly cumulatively.
Disposition
The Crown submitted that only a sentence of full time custody could be proportionate to the offending in all the circumstances. I do not accept that submission.
I do accept that a sentence of imprisonment must be ordered to mark out the seriousness of the offences. The aims of adequate punishment and deterring others demand this. That is not to say that the other aims in s 7(1) of the Crimes (Sentencing) Act are not engaged by this case.
I do not accept that there must be an element of full time custody.
Order
(a)For the offence that between 1 April 2008 and 28 February 2011 the offender by deception dishonestly obtained a financial advantage to the value of $59,517.13 from Bacardi Lion, you are convicted and sentenced to 18 months imprisonment. That sentence is to commence today. The offender is to serve that sentence by way of periodic detention for a period of 6 months, with the balance of the sentence to be suspended at the expiration of that period upon her entering a Good Behaviour Order for 3 years, with that order to include a condition that she complete 200 hours of community service work.
(b)For the offence that between 1 April 2008 and 28 February 2011 the offender by deception dishonestly obtained property, namely things in action to the value of $54,915.18 belonging to Bacardi Lion, you are convicted and sentenced to 18 months imprisonment. That sentence is to commence from 22 October 2016. That sentence of imprisonment is suspended upon the offender entering into the Good Behaviour Order imposed in relation to the first count.
(c)For the offence that between 1 April 2008 and 28 February 2011 the offender made false documents with the intention of using the documents to dishonestly induce someone else to accept the documents as genuine, you are convicted and sentenced to 12 months imprisonment. That sentence is to commence from 22 April 2017. That sentence of imprisonment is suspended upon the offender entering into the Good Behaviour Order imposed in relation to the first count.
(d)For the offence that on 1 December 2010 the offender attempted by deception dishonestly to obtain property, namely, a thing in action to the value of $15,000 belonging to Bacardi Lion, you are convicted and sentenced to 6 months imprisonment. That sentence is to commence from 22 April 2017. That sentence of imprisonment is suspended upon the offender entering into the Good Behaviour Order imposed in relation to the first count.
I have reduced each of the above four sentences otherwise applicable by a factor of approximately 10% to reflect the utilitarian nature of the plea of guilty shown.
Since writing the above, I have had the benefit of reading the decision by Justice Burns in R v Raeleen Griffiths (Unrept) delivered on 19 October 2015. I am fortified in my decision above that it is not mandatory that an offender, in the position of the current offender, must serve a sentence which includes full time custody.
| I certify that the preceding fifty-four [54] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Robinson. Associate: D.Hoitink Date: 22 October 2015 |
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