R v McLeod
[2018] ACTSC 228
•26 March 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v McLeod |
Citation: | [2018] ACTSC 228 |
Hearing Dates: | 15 March 2018, 26 March 2018 |
DecisionDate: | 26 March 2018 |
Before: | Burns J |
Decision: | See [42] - [46] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Theft – fraud against the Public Trustee of the ACT over a five year period – rolled up counts – pleas of guilty – no previous criminal convictions – alcohol abuse – gambling addiction – considerable value of property obtained – vulnerable nature of victims – breach of trust – knowledge of financial systems of Public Trustee allowed offences to occur – co-offenders – whether culpability is greater than co-offenders – whether sentences should incorporate a degree of concurrency |
Legislation Cited: | Criminal Code 2002 (ACT) s 308 |
Parties: | The Queen (Crown) Timothy McLeod (Offender) |
Representation: | Counsel Mr A Williamson (Crown) Mr J Pappas (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Ben Aulich and Associates (Offender) | |
File Number: | SCC 60 of 2018 |
BURNS J
Timothy McLeod, you appear before me today for sentence with respect to four counts of theft, contrary to s 308 of the Criminal Code 2002 (ACT). The maximum penalty for each such offence is ten years’ imprisonment, a fine of $150,000.00 or both. The four counts are what are referred to as rolled up counts, in that each count represents a collection of charges, rolled up into a single charge. The procedure can only occur with the consent of an accused person. Otherwise, the Crown must proceed with each individual charge. The practice simplifies the sentencing process but also operates to the advantage of an accused person pleading guilty. The use of rolled up charges reduces the theoretical maximum aggregate penalty which may be imposed for the overall offending.
A comprehensive Statement of Facts was tendered. The present offences arise from a fraud against the Public Trustee of the ACT. You were employed by that institution and you used your position as a Trust Officer to utilise four methods of stealing money from the Public Trustee. The Public Trustee is a financial institution responsible for managing the financial affairs of people suffering from legal incapacity. It holds funds in trust for those who cannot manage their own money. As a Trust Officer, you were responsible for managing the funds of a number of clients of the Public Trustee. The clients for whose financial affairs were responsible were infirm, mentally ill or mentally impaired.
Client funds were held in the Public Trustee “cash in common” fund. These funds would be drawn down or dispersed on behalf of the clients upon the issue of a request called a “cheque requisition” by an authorised Trust Officer. Each client held a ledger against the “cash in common” fund and client expenses would be accounted for on those ledgers.
The total period of your offending was between 10 September 2008 and 12 November 2013. The total amount of the thefts was $1,087,227.55. I will not set out the Statement of Facts in full but I will refer a little more fully to the four different methods you utilised to commit these offences.
Count One refers to offences committed utilising what has been referred to as “Method One”. In total, there were 156 transactions utilising this method, amounting to $104,131.65. This method involved you generating false cheque requisition forms, requesting that funds on behalf of a number of your clients be transferred from the Public Trustee cash in common fund to the everyday bank accounts of two of your clients. One of the clients in question, who I will refer to as TT, was a paranoid schizophrenic homeless man and the other, who I will refer to as XT, lived in a nursing home. You obtained the EFTPOS cards and PIN numbers for the everyday bank accounts of those two clients.
Sometimes, funds belonging to TT or XT would be simply withdrawn from their accounts. The instances where you caused a transfer to be made from another Public Trustee client’s ledger into the personal bank account of either TT or XT, this was based on a false cheque requisition which either nominated a false payee and featured the bank account details of TT or XT and nominated a false purpose which appeared, on its face, to warrant a legitimate transfer of funds. When the funds were transferred into the account of TT or XT, you would utilise the relevant EFTPOS card and PIN number to withdraw the funds.
Count Two refers to offences utilising “Method Two”. In total, there were 26 transactions utilising this method, amounting to $41,025.95. In this method, false cheque requisition forms were created by you, requesting funds for clients to purchase products such as electronic items from retailers. Based on the cheque requisition, the Public Trustee would issue a bank cheque or make an EFT transfer. Where a cheque was issued, you would take possession of the cheque and directly purchase products for your own use. Where the payment was made by EFT, you would arrange to either collect the goods or have them delivered to an address you nominated. The products obtained would not necessarily match those described on the cheque requisition.
Count Three refers to offences utilising “Method Three”. In total, there were 70 transactions, amounting to $141,516.80. In this method, false cheque requisition forms were generated by you requesting funds on behalf on a client for legitimate sounding purposes but nominating the bank account details of Stephen Evans, a close friend of yours and a Public Trustee contractor as the destination for the transaction. The purpose for each of the transactions was nominated as “for the purpose of holiday expenses.” The payee details on the cheque requisition were recorded as Centacare but the payee account number was the account of Stephen Evans. Also, false cheque requisition forms were generated by you, requesting funds on behalf of a client for legitimate sounding purposes but nominating the bank account details of Stephen Evans.
In these circumstances, the purpose of the transaction was nominated as “Additional funds requested by client for holiday expenses.” The payee details on the cheque requisition were recorded as the Public Trustee client or Centacare, but the payee account number was the account of Stephen Evans.
Count Four refers to offences utilising “Method Four”. In total, there were 146 transactions, amounting to $800,553.15. In this method, false cheque requisition forms were created by you requesting funds be paid out on behalf of a client for the purpose of maintenance or capital works on their property. The cheque requisition form would be based either on a false invoice prepared by a complicit contractor, either Stephen Evans or Joshua Leighton, or the creation of a requisition by you without a supporting invoice. The cheque requisition would authorise payment to the bank account of the contractor for work that had not been performed. Payment would subsequently be made from the Public Trustee’s client’s account into the contractor’s bank account for the works that were not performed.
Payments made to Joshua Leighton were withdrawn in cash immediately upon the monies being deposited and 60 per cent of the money from each deposit was given by him to you pursuant to an agreement between you. Payments made to Stephen Evans were drawn in cash shortly after the monies were deposited and 50 per cent of the money from each deposit was given by him to you pursuant to an agreement between you.
These offences were only discovered after another Trust Officer managed your client’s ledgers while you were on holidays in America for six weeks from 1 December 2013. The office of the Public Trustee conducted a full examination of your client’s ledgers and found hundreds of suspicious transactions over a period of over five years relating to a number of clients. The investigation discovered that the affected clients were predominantly managed by you and a related offender, Donald Savanhu. You and Mr Savanhu were friendly at work and would socialise together outside work. On 21 January 2014, Mr Savanhu was suspended from work and on 23 January 2014, you were also suspended.
On 29 May 2014, police executed a search warrant at your then home in Pearce. You participated in a recorded interview with police during the course of the execution of that warrant. You told police that you had worked at the Public Trustee for about 10 years as a Trust Officer and that you would request payments for bills that would be authorised by someone else. You said that there were no policies or processes in place and no procedures book. You told police that the information entered on cheque requisitions would come from the client, either verbally or in document. You said that half the cheque requisitions could be prepared by someone else and “they just throw it on my desk and you just sign these things without looking.” You further said that clients’ bank account documents were posted to the Public Trustee and that you would send the client their EFTPOS card and PIN.
In relation to client properties, you told police that you would arrange maintenance upon request by clients. You said that you would do hundreds of these a year. With regard to retail purchases, you told police that your clients would generally get a quote from the store which they would pass on to you. You stated that the client would pick up a cheque or sometimes the Public Trustee would pay the store directly. You said that, on occasion, you had attended a store in person to supply details, pay for an item or supply the cheque so that the item could be delivered to the client. You told police that holiday funds could be requested by a client, relative of a client, a carer or an external agency.
You admitted to police that you knew Stephen Evans as you played gridiron football with him and saw him once a month. You also said that you could have gone to school with him and you may have been friends at one time. In fact, photographs seized from your wife’s mother’s house showed that Stephen Evans was a guest at your wedding. You denied having any knowledge of Stephen Evans’ bank account details or their presence in the Public Trustee’s records. While executing the warrant, police located a business card in the name of Joshua Leighton. You told police that you knew Joshua Leighton as a service provider for the Public Trustee and that you had met him on a couple of occasions in that capacity. Police also located an EFTPOS card in the name of TT. You told police that you knew nothing about that card and that you could not recall that name.
Lawful telecommunications intercepts, after you were stood down from the Public Trustee’s office, showed you trying to prime your mother as to what she should say if she was questioned by the police about these events. Between January and September 2014, police conducted enquiries with various licenced clubs in the ACT which showed that you had gambled significant sums of money on poker machines in 2013 and 2014. During the execution of the search warrant, police asked you about an estimated $73,000.00 that you had reportedly lost playing poker machines in 2013 and you claimed that that could not possibly be a correct figure.
You were originally charged with a large number of offences relating to these events in the Magistrates Court on 10 November 2015. On that date, pleas of not guilty were entered to all charges and on 5 April 2016, you were committed for trial to this Court. On 8 July 2016, the Crown filed a joint indictment for you and your co-offender Stephen Evans. On 17 July 2016, Joshua Leighton made a statement to the police admitting his involvement in a number of these offences and implicating you. On 4 November 2016, Joshua Leighton was sentenced by myself after pleading guilty in the Magistrates Court to 23 rolled up counts of theft. As part of that process, he indicated a willingness to give evidence on behalf of the Crown at your upcoming trial. On 7 November 2016, your charges were allocated a trial date of 22 May 2017.
On 15 May 2017, Stephen Evans made a statement to police admitting his part in these offences and implicating you. After negotiations between the parties, you indicated pleas of guilty on 15 May 2017. The Crown filed a new, separate indictment for you on 22 May 2017 and on 29 May 2017, you entered pleas of guilty to all charges in this Court. I note that Stephen Evans was subsequently sentenced by Elkaim J on 10 August 2017.
For present purposes, you have no previous criminal convictions. A Pre-Sentence Report dated 8 March 2018 was tendered at your sentence hearing. You are 36 years old and reportedly had a stable and supportive childhood. Your parents separated when you were fifteen and you found that period difficult. However, you continued to have regular contact with your mother and sister while you lived your father. You continue to maintain supportive relationships with both parents and your sister. You told the author of the report that you are married and that you have two children, one aged 10 years and one aged four. You were educated to and completed year 10 and subsequently had a strong employment record. You reported having been continuously employed in the hospitality industry since the end of 2016.
You first consumed alcohol at the age of 18 and described it to the author of the report as your demon. You reported regular consumption of approximately 20 standard alcoholic drinks per day up to the present day. You stated that you first smoked cannabis at the age of 18, escalating to the use of approximately three grams of cannabis each week during the period of your offending. You claimed that you have not used that substance since New Year’s Eve 2017. You have previously used ecstasy recreationally but ceased this in 2014. You reported problematic gambling, mainly involving poker machines, during the period of your offending. You advised that you ceased gambling in 2013, without any assistance, after these offences were discovered. You reportedly have no gambling relapse prevention strategies in place.
You mostly agreed with the Statement of Facts when speaking the author of the Pre‑Sentence Report, although there was a disagreement as to precisely how the funds of these offences were split with your co-offenders. To my mind, this is not of particular significance. You told the author of the report that at the time of your offending you experienced short term gratification from gambling, drinking alcohol, smoking cannabis and helping your friends. You appeared to accept responsibility for your actions and demonstrated a level of insight into your offending. You acknowledged the adverse impact of your offending behaviours on your victim and on your own family. You appeared to recognise that your offending involved a significant breach of trust.
A report from Dr Andrew Ellis, a forensic psychiatrist, dated 25 February 2018, was also tendered on your behalf. Dr Ellis said you told him you find it hard to describe your emotions and how you feel. He said that you complained of feeling sad, which had persisted for the past four or five years. You have increasingly anxious since you were charged with these offences. You complained of feeling angry in your mood over the past five years, although at other times you said that you would feel fantastic and wonderful for short periods of time. Your sleep has become unpredictable and your appetite is variable. You complained of having lost 20 kilograms in weight over the past twelve months. You stated that you have occasional thoughts of self-harm but no intention to engage in this conduct owing to the effect that would have on your children.
Dr Ellis noted that for the past six months you have been seeing a clinical psychologist once a month. You did not believe that you derived any benefit from these sessions. Dr Ellis also noted your significant abuse of alcohol and your use of cannabis and some other drugs. You also described to him gaining a thrill from gambling on poker machines. Dr Ellis noted that you had been diagnosed with diabetes at the age of 30 and that you are currently insulin dependent. In September 2017, you required admission to hospital for diabetic ketoacidosis and alcoholic gastritis after a heavy alcohol binge.
You told Dr Ellis that you came up with the scheme to commit these offences with your friend although it is not clear from the report whether this is a reference to Stephen Evans or Joshua Leighton. You said that, at the time, it made your family happy and that you were able to provide them with material goods. You said that it made you feel better as a result of seeing your family and your friends happy. You said that you lost most of the money gambling. Your mother told Dr Ellis that over the past five years your behaviour had become more erratic. She reported that she would often see you with an angry or bad temper and changeable mood. Dr Ellis expressed the opinion that you would meet the criteria for an alcohol use disorder. Your alcohol use disorder is severe and has required hospitalisation. In addition, you would likely meet the criteria for a cannabis use disorder and also the criteria for a gambling disorder.
Dr Ellis gave some consideration as to whether your reported mood swings could be indicative of a psychiatric condition such as a bipolar disorder but concluded that the most likely explanation is a substance induced mood disorder relating to your consumption of alcohol. It was Dr Ellis’s opinion that the level of alcohol and cannabis use which you describe at the time of these offences could lead to transient impairment of judgement. However, not for sustained or complex activity. He notes that you may have suffered from an intermittent depressed and hypomanic mood over this period. This may have temporarily clouded your judgement by elevating your mood, reducing impulse control and rendering you more prone to unfeasible planning. Dr Ellis stated, however, that this type of mood state is temporary and transient and would not explain the entire pattern of behaviour which you exhibited but may assist in understanding aspects of it.
With regard to your motive for committing these offences, Dr Ellis stated that your reported motivation was to bolster your self-esteem by seeming to give favour to your co-offenders and receive their respect. You also wanted the respect of your partner by being able to provide her with material goods. Dr Ellis says that it is likely that this motivation was mixed with satisfaction from indulging addictive drives and possibly some satisfaction by deceiving supervisors and clients who you felt were difficult or unsupportive. Overall, he stated, there was likely to be an intersecting set of personal motivations, substance use and abnormal mood contributing to your behaviour. There was, however, no evidence to suggest that any condition or combination of conditions which might have deprived you of any ability to be able to be aware of the full wrongness of your acts.
Dr Ellis stated that a positive prognosis in your case relied upon your cessation of alcohol use. He considered that if you continued to drink alcohol at current levels, the risk to physical and mental health is high. He noted that you have a number of positive factors and the absence of a previous criminal history, stable accommodation, supportive family members, an ethic for certain kinds of work and likely intact cognitive ability. Dr Ellis said that, in general, the type of fraud crime in which you engaged is unlikely to be repeated and should you engage with treatment and abstain from substance abuse it would enhance your prospects for rehabilitation. Dr Ellis stated that you appeared to express genuine remorse to the extent that you were able because of your personality type and demonstrated a basic insight into your situation.
Cessation of alcohol use and engagement in a therapeutic relationship will likely assist with your rehabilitation. Dr Ellis noted that because of your diabetes, withdrawal from alcohol abuse would be difficult in custody. On that basis, I adjourned the proceedings from 15 March 2018 until today to enable you to undergo medically supervised alcohol withdrawal. I note that I have been provided with a report which establishes that that has taken place. I take into account the testimonials that were tendered on your behalf and I give particular weight to that which was prepared by your parents. These testimonials speak of your admirable qualities as a husband and father.
The authors of the testimonials all speak of being shocked to learn of your offending behaviour. Your parents note that since you were suspended from your position at the Public Trustee in 2014, you have worked in number of different positions to try to provide support for your family. During the last two and a half years, you have helped out at the family hotel in Wombat, New South Wales. They state that you have worked nearly every day during that period and have made an impact on the management of the hotel. The family plan is that your wife will continue to work at the hotel while you are in custody and you will then have work to return to when you are released.
Your wife gave evidence at the sentence hearing and she confirmed much of the information that was provided in the report by Dr Ellis and in the testimonials. She said that you are not a person accustomed to opening up and speaking about your emotions. She said that about six months ago you first approached her while you were heavily intoxicated and expressed remorse about what you had done. This has now occurred on three separate occasions. Your wife said that the property in which you lived in the ACT was seized after you were suspended from your employment at the Public Trustee and you and your family went to live in Wombat. Your wife borrowed money and acquired the licence to run the local hotel and you work with her in that business. The business does not make much more than enough to cover expenses.
In determining the objective seriousness of these offences, I take into account the fact that the value of the property obtained in each case was considerable. I accept that you did not receive all of the proceeds of the offences but you were involved in the appropriation of the whole amount. I also take into account the fact that these offences spanned a five year period, indicating a high level of premeditation. As you have acknowledged, these offences involve a very significant breach of trust because you were only in a position to commit these offences because you were trusted by your employer. You utilised your knowledge of the Public Trustee’s financial systems, which you obtained as an employee in order to commit these offences.
In large measure, you were able to continue these offences for such a long period because of the vulnerable nature of the clients of the Public Trustee, because of their infirmity or chronic illness it was unlikely that they would detect the thefts and bring them to the notice of the authorities. I also take into account the fact that you have not repaid any of the monies that you stole, although I acknowledge that you have not been in the position, realistically, to do so. It is, nevertheless, relevant to determining the objective seriousness of the offences that no repayment has been made.
The Crown submitted that I should find that you were the mastermind or ringleader with respect of these offences. Your counsel submitted that this was really a plot in which you and your two co-offenders were all involved. For present purposes, I think that it is sufficient to observe that these offences could not have been committed without your involvement. It was only your knowledge of the financial systems of the Public Trustee and your ability to manipulate those systems which allowed these offences to occur.
Taking all of these matters into account, I assess the objective seriousness of these offences as in the upper range of such offences. I am satisfied that your alcoholism, cannabis use and gambling habit were the major causes of this offending. To a much lesser degree, your mental state also contributed but, as Dr Ellis stated, any mood disorder from which you may suffer cannot adequately explain these offences. The fact that an offender commits an offence in order to satisfy an addiction or gambling habit is not normally a matter which calls for significant mitigation of sentence. Such matters are, however, relevant to determining the offender’s prospects for rehabilitation. I am satisfied that if you adequately address alcohol abuse, cannabis abuse and gambling addiction, your prospects for rehabilitation are good.
You have a number of protective factors including family support, stable accommodation and employment. I accept that you have demonstrated remorse for your offending and you have also demonstrated insight into your behaviour and a willingness to undergo treatment to address criminogenic factors. The Crown submitted that no significant reduction in penalty should be made because of your pleas of guilty on the basis that the case against you was overwhelmingly strong. I accept that the case against you was very strong but I would not go so far as to describe it as overwhelmingly strong, such that you should not receive any discount on sentence based upon your pleas of guilty. There was certainly a very significant utilitarian value in your pleas. Your pleas cannot be described as being early. I will reduce the otherwise appropriate sentences by 10 per cent in order to reflect your pleas.
The fact that you are a person with no prior criminal history is a matter that has limited effect upon sentencing with regard to this type of offending. You were only in a position to commit these offences because you were a person of apparently good character. That is not to say that good character is entirely irrelevant to sentencing, simply that it has limited effect upon sentencing with regard to the present offences. It is now over four years since your offending was detected and there is no suggestion that you have re‑offended in any way. Your counsel has frankly conceded that much of the delay in finalising these charges is your responsibility but nevertheless, as the Crown conceded, the delay in finalising these charges is a matter which I can take into account on sentence.
As a consequence of these offences, you have lost your employment in the public service and your family has lost its home in the ACT and has had to move to rural New South Wales. Undoubtedly, sentences of imprisonment imposed upon you will have a significant detrimental effect upon your family but that is a matter which you have brought upon them.
Your co-offender, Joshua Leighton, was sentenced to a total sentence of four years’ imprisonment with a non-parole period of one year and seven months. He received a 20 per cent discount for early pleas of guilty and a further 30 per cent discount for assistance to authorities in relation to your prosecution for these offences.
Your other co-offender, Stephen Evans, was sentenced to three years and nine months’ imprisonment with a non-parole period of 17 months. He received a 20 per cent discount, although it is unclear whether this was solely due to his plea of guilty or also encompassed his offer to assist in your prosecution.
Your culpability with respect of these offences is somewhat greater than that of your co‑offenders. As I have already observed, these offences could not have been committed without your knowledge of the financial systems of the Public Trustee and your ability to manipulate those systems. You also received more of the proceeds of the offences than your co-offenders. Your offending involved a breach of trust whereas that of your co‑offenders did not. Both of your co-offenders made offers to assist the authorities.
I am satisfied that the sentences which I impose should incorporate a significant degree of concurrency. This is necessary, firstly, because these offences should properly be considered as part of a course of conduct, although one which extended over a number of years. Secondly, concurrency is called for to ensure that the totality of the sentence imposed properly reflects the overall criminality involved in this course of conduct.
Sentence
On Count One, I record a conviction and you are sentenced to two years and 10 months’ imprisonment, commencing on 26 March 2018, today, and expiring on 25 January 2021.
On Count Two, I record a conviction and you are sentenced to two years and six months’ imprisonment, commencing on 26 January 2019 and expiring on 25 July 2021.
On Count Four, I record a conviction and you are sentenced to four years and six months’ imprisonment, commencing 26 March 2021 and expiring 25 September 2025.
On Count Three, I record a conviction and you are sentenced to three years and three months’ imprisonment, commencing 26 October 2022 and expiring 25 January 2026.
The aggregate sentence which I have imposed is, therefore, one of seven years and 10 months’ imprisonment, commencing 26 March 2018 and expiring 25 January 2026. I have set a non-parole period of four years, commencing 26 March 2018 and expiring 25 March 2022.
[Speaking directly to offender]
Mr McLeod, Mr Pappas will undoubtedly explain what I have said to you further but I have set a minimum period that you have to serve of four years. I would suggest to you that you have really now hit rock bottom. If you are now able to work your way up from this point by abstaining from alcohol and accepting treatment in relation to gambling addiction, I have no doubt that you can become a useful member of the community and a good father and husband. It is quite clear to me on the material that you have the capacity to be quite a useful member of the community and a very good member of your family. So, now it is up to you. Make the best of the time that you have to spend in custody.
| I certify that the preceding forty-seven [47] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 21 August 2018 |
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