R v Morris

[2017] ACTSC 400

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Morris

Citation:

[2017] ACTSC 400

Hearing Date:

2 November 2017

DecisionDate:

1 December 2017

Before:

Burns J

Decision:

See [12]-[16]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – Obtaining property by deception – significant offence – no prior convictions – financial pressure – good prospects of rehabilitation – low likelihood of re-offending – full-time imprisonment – reparation order – prisoner at risk

Legislation Cited:

Criminal Code 2002 (ACT) s 326

Parties:

The Queen (Crown)

Jennifer Doone Morris (Offender)

Representation:

Counsel

Ms S Naidu (Crown)

Mr R Davies (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

ACT Legal Aid (Offender)

File Number:

SCC 197 of 2017

Burns J:

1. Jennifer Morris, you appear before me today, having pleaded guilty to eight charges of obtaining property by deception. Those eight charges cover periods from February 2016 to September 2016. Varying amounts of money were involved in those offences, ranging from $4,065.60 in March 2016 through to $41,785.90 in August 2016. Some of these charges are rolled up charges, in the sense that they cover more than one transaction.

1. The agreed Statement of Facts which was put before me records that on 19 occasions between February 2016 and September 2016 inclusive, you dishonestly facilitated the transfer of money from your employer’s bank account into your own bank account by falsifying supplier invoices. Over this eight-month period, the total amount transferred was $191,141.40. The maximum penalty for each of these charges of obtaining property by deception, contrary to s 326 of the Criminal Code 2002 (ACT), is 10 years imprisonment, a fine of $150,000.00, or both. I note that you entered pleas with respect to these charges at an early time in the Magistrates Court and you were subsequently committed for sentence to this Court.

1. The Statement of Facts is, as one might expect, quite detailed in relation to these transactions and I do not propose to now recite the facts in relation to each of the charges. With regard to the objective seriousness of these offences, it is clear that a large amount of money was involved in these transactions, as I have said, just over $191,000.00 in total, in addition to which a substantial loss was occasioned to your employer, just in excess of $161,000.00, against which your employer was able to claim $100,000.00 under an insurance policy. These offences, according to the victim impact statement which was put before me, had a significant impact on the financial position of your employer. It also affected the morale of your fellow employees and your employers and affected trust between those in the workplace.

1. It is clear that this offending was a very significant breach of trust on your part. The means that you used to commit these offences was not particularly sophisticated and, indeed, I am satisfied that it was bound to be ultimately discovered, but these offences were premeditated and involved a degree of planning. They continued, as I have said, over a period of some eight months and involved use of your knowledge of your employer’s financial systems and arrangements. They only ceased when the offences were discovered by the employer. No reparation has been made and I am satisfied, based upon your financial position, that it is unlikely that you will be able to make any significant reparation in the near future.

1. I take into account that your motive for committing these offences was, in accordance with the evidence that you gave, to meet demands for money and goods made by your children. I accept that these demands placed you under great personal stress. I would place these offences as being on the border of the low to mid-range of offences of this nature.

1. A Pre-Sentence Report was prepared for the sentence hearing. You are 50 years old and you have no prior convictions. You enjoyed a loving upbringing and a financially secure family home and you continue to have family support. You were first married at age 18, a marriage which produced two children now aged 31 and 28. That marriage ended after four years when your husband took his own life. You were married for a second time at age 25. That marriage dissolved after two years due to your husband’s issues with alcohol and gambling. During that marriage, you were subject to emotional and physical abuse. A son now aged 25 was born of that marriage. Another child, now aged 17, was born following a three-year relationship with your former partner. Your current relationship commenced in 2016 and is reported to be supportive and caring.

1. You currently reside in private rental accommodation. I note that you completed high school to the end of year 10 and subsequently completed some further qualifications. You have been mainly employed in clerical and administrative positions since that time. When your current offences were discovered, your employment with your former employer was, of course, terminated but you are currently employed as a receptionist. You report having no alcohol or drug issues. You have been in the past diagnosed with postnatal depression some 25 years ago and I note that you continue to take antidepressants.  You have been stable on that medication. You reported a suicide attempt in 2014 by overdose of prescription medication reportedly due to unrelenting financial pressure from your youngest daughter. No suggestion that any mental or physical health condition was connected with these offences has been put before me.

1. I note that you expressed remorse to the author of the Pre-Sentence Report and also shame for your conduct. I also take into account that you expressed remorse and shame in the evidence which you gave before me at the sentence hearing. The author of the Pre-Sentence Report assessed you at being of low risk of reoffending, an assessment with which I agree. I note that you have no prior criminal history, a fact that would ordinarily carry great weight but less so with regard to this type of offending. It was only because you were a person of previous good character that you were in a position to be able to commit these offences.

1. I am satisfied that you have good prospects for rehabilitation and there is little likelihood of you reoffending in a similar way in the future. I take into account your early pleas of guilty with respect to these charges and I will reduce the otherwise appropriate penalties by approximately 25 per cent in order to reflect your pleas of guilty.

1. General deterrence is the most significant sentencing consideration with respect to this type of offending. It is important that the courts make it clear that those who significantly breach trust with their employers in order to misappropriate the funds of their employers can expect real punishment. I have had the benefit of a table of prior sentences imposed for similar offences and, indeed, a number of cases which were referred to me by both the Crown and also your counsel. I gleaned from those prior decisions that a sentence of imprisonment is frequently imposed for this type of offence although such a sentence may sometimes be wholly suspended where the value of the property involved is relatively small or there may be other significant reasons for finding a reduction in the moral culpability of the offender. In my opinion, those circumstances do not apply in the present case.

1. The value of the property which was misappropriated was quite significant and your moral culpability, even taking into account the pressure which was placed upon you by your family, was quite significant. I have considered all sentencing options available. However, nothing less in my opinion than some full-time imprisonment will be adequate to achieve the objectives of sentencing due to the seriousness of these offences.

Sentence

1. There are eight offences and I will refer to the charges from the Magistrates Court when passing sentence. I will start with the most serious offence which is charge 7927 of 2017. On that matter, you will be convicted and sentenced to 13 months imprisonment commencing today, 1 December 2017, and expiring on 31 December 2018.

1. With respect to charges 7922, 7923, 7924, 7926 and 1402 of 2017, you will be convicted and sentenced to 10 months imprisonment on each of those charges, commencing on 1 September 2018 and expiring on 30 June 2019. With respect to charges 1385 and 7925 of 2017, you will be convicted and sentenced on each matter to eight months imprisonment commencing on 1 September 2018 and expiring on 30 April 2019.

1. That makes a total of 20 months imprisonment of which a period of five months commencing today, 1 December 2017, and expiring on 30 April 2018, will be served by way of full-time imprisonment. The balance of that sentence will be suspended with a Good Behaviour Order for a period of two years from 1 May 2018. The Good Behaviour Order will have the conditions firstly, that you are to accept supervision of ACT Corrective Services or any delegate of that organisation for that period of two years, or such lesser period as deemed appropriate by your supervising officer. Secondly, you are to obey all reasonable directions of ACT Corrective Services or any delegate of that organisation.

Reparation

1. I will make the reparation order which has been sought but only in terms of making reparation to the employer. There will be an order that the offender make reparation to Project Lighting Pty Ltd in the sum of $161,576.70.

Prisoner at Risk

1. I will direct that the warrant accompanying the offender to custody be marked that she is to be treated as a prisoner at risk in custody.

I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns

Associate: Karina Curry-Hyde

Date: 13 February 2018