R v Murphy

[2009] NSWDC 58

CITATION:	R v MURPHY [2009] NSWDC 58
HEARING DATE(S):	18 December 2008 19 December 2008 6 March 2009
JUDGMENT DATE:	6 March 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	In each matter sentenced to concurrent periods of imprisonment consisting of head sentence of 2 years and a non parole period of 12 months. Ordered to be served by way of periodic detention.
CATCHWORDS:	Criminal law - Sentence - Obtain financial advantage by deception - Breach of trust - Previous convictions for similar matters.
LEGISLATION CITED:	Crimes Act 1900
PARTIES:	The Crown Katrina Murphy
FILE NUMBER(S):	DC 2004/11/0506
COUNSEL:	A Seeto (The Crown) G Brady (Offender)
SOLICITORS:	NSWDPP Nyman Gibson Stewart

SENTENCE

1 HIS HONOUR: Katrina Murphy appears for sentence today, having pleaded guilty at an earlier time to three offences of obtaining financial advantage by deception. These offences were committed some time ago, in 2001. The reason for the delay in dealing with the matter is quite simple, Ms Murphy did not appear at her trial when required to do so in 2004. A warrant was issued for her arrest and it was only recently executed.

2 Ms Murphy’s offences were committed in a remarkably simple way. She was connected with the payroll of Ord Minnett Cash Management Trust. It was her job, along with others, to ensure that the employees were paid. To do that she had to engage in some electronic banking, transmitting to Westpac details of who was to be paid and how much. On each occasion she simply altered the electronic banking records so that payments were made to her bank account, for employees who no longer worked at Ord Minnett. By that remarkably simple means she obtained, as far as count one is concerned, $7,255.79 cents; as far as count two is concerned $5,238.16 cents; and as far as count three is concerned $6,679.50 cents.

3 That money was repaid some time ago, shortly before Ms Murphy absconded. It is not a matter of mitigation however, that the company bears no loss. It would have been a matter of aggravation if the money continued to remain unpaid when the offences were committed so long ago.

4 This is not Ms Murphy’s first breach of the criminal law in this manner. In 1996 she was dealt with for a number of offences of dishonestly obtaining financial advantage by deception and on each she was put on a good behaviour bond under what was then s 556A of the Crimes Act for two years.

5 It is to be noted that the way in which she committed her earlier offences in 1996 bore some striking similarities to the way she committed her offences for which she is to be sentenced today. That is, she was a payroll officer who simply altered the payroll records so that her bank accounts were credited with money that should have been paid to others.

6 I received a number of references concerning Ms Murphy. One can only assume that they were prepared without the knowledge of Ms Murphy’s earlier offences or at least that that knowledge was belatedly given to the authors of the references. Many of the references make reference to these offences being completely out of character for Ms Murphy. Wanda Brown, her niece said that there has never been any suggestion that Ms Murphy was anything other than an “exemplary employee”. Sadly that is not the case.

7 What certainly is the case is that Ms Murphy has had some stresses in her life over various years. She has been significantly depressed at times, one of those episodes of depression occurring at about the same time as the breakdown of her marriage. It seems that at that time she was responsible for the care of four young children. She had a lot to do to look after them and also found it difficult apparently to conduct full-time work. It is said that these circumstances explain the commission of the current offences. I accept that those who are depressed are less able to reason about the wrongfulness and rightfulness of their actions than those who are not depressed, but it is a significant step, and one I am not prepared to take, to suggest that depression explains the commission of crimes. There are many people in the world suffer loss and do not steal from their employers. There are many people in the world who are significantly depressed and his law abiding lives. It is simply taking matters too far to say that her depression explains her conduct.

8 For many years Ms Murphy was living separately from her husband, he being in Queensland and she being in New South Wales. Recently the evidence suggests that they have reunited and she has been living on the Gold Coast for some time. The circumstance led to a number of adjournments of this matter for reasons I will shortly explain.

9 Offences such as these are serious because they represent a significant breach of the trust that has been placed by an employer in Ms Murphy. Modern relationships, including relationships of employer/employee depend upon a significant level of trust. Those who are given the opportunity to work in areas where they have close contact with money must understand that if they breach the trust placed in them then significant, and even harsh, penalties must necessarily follow. The more so is that the case when, as here, the offender has earlier convictions for similar matters.

10 General deterrence is of significant importance when sentencing for offences of this kind. There is a limit to what businesses can do to prevent dishonest misappropriation of money. Trust is essential, and where trust is broken the courts must do what they can to prevent others acting in a similar way. The earlier offences also suggest that there is a greater than usual need for personal deterrence to play a part in the sentence to be imposed.

11 In order to reflect the gravity of the offences and particularly because the offender is not appearing before the courts for the first time I am satisfied that a custodial sentence is required. This leads me to return to the matter I adverted to earlier. Periodic detention is not available in Queensland, nor is it possible for home detention orders to be made which can be supervised by Queensland Probation and Parole authorities. I drew this to the attention of Mr Brady when the matter was first before me. He was hanging his hat on a s 12 bond. I formed the view that a custodial sentence was required because a suspended sentence would not have sufficiently met the requirements of general and personal deterrence. I have decided how long that sentence should be, taking into account both 25% discount for Ms Murphy’s plea of guilty and also the short period of time she spent in custody after the warrant for her arrest was executed. I then needed to determine how the sentence would be served in order to be armed with the knowledge as to what options were available. I suggested to Mr Brady that his client might wish to seek the opportunity of a pre-sentence report, in particular as to whether she was suitable for periodic detention. Of course the fact that she is living in Queensland would be a significant impediment to such a sentence being imposed. Ms Murphy, up until the eleventh hour, refused to make any arrangements such that she would become suitable for periodic detention. Given the decisions I had already made this could only have led to her serving a sentence of full time custody. Fortunately she has had a change of heart. She is now prepared to make arrangements to move down to Sydney and stay with her brother for the period of any sentence I impose upon her. She is now suitable for periodic detention and has signed appropriate undertakings.

12 Given the length of the sentence I have determined it is appropriate that I further indicate why I have rejected the submission put to me by Mr Brady that a suspended sentence would be appropriate. In my view that would not sufficiently deter Ms Murphy from further misconduct. No doubt at sometime in the future she will face stresses in her life, she will feel under pressure and she may well feel depressed. Temptation will come her way again. Having received a bond the first time she committed an offence of this kind, and then having got another bond (if I acceded to Mr Brady’s submission) for these more serious offences, in my view Ms Murphy would get the completely wrong idea about whether or not she should give in to that temptation. She needs to be punished in a concrete way, not in a nebulous way with the Sword of Damocles hanging over her head, but in a way she will feel and others will understand.

13 The sentence I impose is this, I am going to impose concurrent sentences on each matter. On each matter the offender is sentenced to imprisonment. I find special circumstances due to this being her first time in custody. I set a head sentence of two years with a non-parole period of twelve months. I order that that sentence be served by way of periodic detention. Accordingly Ms Murphy is to attend the Tomago Periodic Detention Centre at 8.30 am on Saturday 21 March 2009.

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