R v Mynott

[2020] ACTSC 3

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Mynott

Citation:

[2020] ACTSC 3

Hearing Dates:

1 November 2019; 28 January 2020

DecisionDate:

28 January 2020

Before:

Elkaim J

Decision:

See [25]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – obtain financial advantage by deception – unlawful possession of stolen property – credit card transactions

Legislation Cited:

Crimes (Sentence Administration) Act 2005 (ACT) s 42
Criminal Code 2002 (ACT) ss 324(1), 332

Parties:

The Queen (Crown)

Kristian Mynott (Offender)

Representation:

Counsel

L Sutton (Crown)

B Morrisroe (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Offender)

File Numbers:

SCC 21 of 2019; SCC 22 of 2019

ELKAIM J:

1. On 5 February 2019 the offender was committed to the Supreme Court of the ACT for sentencing on seven charges. Six of those charges relate to the offence of obtaining a financial advantage by deception, contrary to s 332 of the Criminal Code 2002 (ACT), which carries a maximum penalty of 10 years’ imprisonment, a fine of $150,000 or both.

1. The seventh charge is one of unlawful possession of stolen property, contrary to s 324(1) of the Criminal Code. This offence carries a maximum penalty of 6 months’ imprisonment, a fine of $7,500 or both.

1. The offences are somewhat dated, having occurred in June, August and November 2017. The offender entered an early plea of guilty to the unlawful possession of stolen property charge in December 2017. After initially pleading not guilty to the obtaining financial advantage by deception charges, the offender eventually entered a plea of guilty to all remaining charges on 5 February 2019. The charges have been ‘rolled up’ to reflect a series of purchases using different credit cards.

1. In June 2017 the offender was working at Canberra Firewood Supplies. He had access to customer credit card details. The following are some of the details of the purchases on customer credit cards: The first was to book an airfare to Sydney for $338.00. He then booked a limousine for $132.00. Later that day the credit card was used for another flight, back to Canberra, costing $309.00. On the same day $13.25 was charged to the card for a service provided by the ‘Grindr’ smart phone application.

1. The next day an airfare costing $1,291.70 for a flight from Canberra to Adelaide was charged to the card. The total amount charged to the same card was $2,083.95.

1. On 7 June 2017 the offender, using a different credit card, booked an airfare for $418.50.

1. The next day the offender purchased another airfare for $301.88 with a different credit card. Later the same day another flight was booked on the same credit card, costing $589.62. The offender then gave the credit card details to another person who bought a fur rug for $125.00 using the card.

1. On 9 June 2017 the other person again used the card, spending $590.00, $198.00, $199.00, $578.00 and $399.23 on separate purchases.

1. The offender also kept using the same credit card details on 9 June 2017. He purchased an airfare for $535.90 and booked a hotel room in Canberra for 3 nights at a cost of $1,038.00. On that day, more airfares were purchased for $200.60 and $242.11. Later that day, one of these flights was changed, incurring a fee of $99.00 on the card. The total on this credit card was $5,096.34.

1. The same pattern continued with the offender using credit card details he obtained through his employment. Ultimately, he spent a total of $11,448.09 on unauthorised transactions.

1. The unlawful possession of stolen property charge, transferred from the Magistrates Court, relates to a necklace, valued at $119.00, found at the offender’s home.

1. The offender was born in 1978. Although his parents separated when he was 16 years of age, he had a generally supportive upbringing. The offender completed Year 12 and then did tertiary studies in hospitality, film and television production.

1. The offender has a significant criminal record stretching through New South Wales, Victoria and the ACT.

1. The offender has a number of mental health issues. He has been admitted into a mental health unit and is currently under the care of his general practitioner with some counselling from CatholicCare. The offender is HIV positive.

1. He has been using drugs, seemingly fluctuating between periods of significant use and abstinence. He was able to remain clear of drugs from December 2017 until April 2019.

1. The offender has shown a capacity to reach positions of responsible employment. Unfortunately his life took a dramatic, and catastrophic, turn in 2004 when he was involved with an incident with a police officer who was ultimately charged with raping him, but was acquitted.

1. It is clear from the report of Dr Richard Furst that this incident has had, and continues to have, a significant effect on the offender’s mental health. The doctor’s diagnosis is of a post-traumatic stress disorder which requires treatment and the treatment is likely to continue over some years.

1. When the matter first came before me on 1 November 2019, the Crown opposed a referral for an Intensive Correction Order (ICO) and required Dr Furst for cross‑examination. It must be said to the Crown’s credit that following the cross‑examination, the Crown withdrew its objection to the referral, which I then made.

1. The ICO assessment, dated 24 January 2020, is that the offender is suitable for an ICO.

1. In written submissions the Crown has pointed out a number of factors to be taken into account in the offender’s favour. They include the relatively early pleas of guilty, the offender’s poor mental health and the consequential effect of this not being an appropriate vehicle for general deterrence. Quite properly the Crown has also pointed out a number of factors which mitigate against leniency, such as the offender’s substantial criminal record and the effect on the victims who were unsuspecting customers of the offender’s employer. Ultimately, as observed by the Crown:

[i]t will be a matter for the court whether, the circumstances of this case including the offender’s reduced moral culpability, that the appropriate level of punishment can be met by dealing with the offender by way of an ICO.

1. At the opening of the law term this morning the Chief Justice observed that lengthy sentences of imprisonment are not necessarily always effective. Significantly, the drug and alcohol court was also officially opened today, highlighting the need for a sympathetic approach to be taken to drug addicts.

1. I note the offender has a place in a Salvation Army rehabilitation program commencing tomorrow.

1. I have decided that on balance, but only narrowly, I should give the offender the chance to commence the rehabilitation program and be subject to an ICO. I note that he is still facing a charge in the Magistrates Court, in respect of which he has been remanded in custody. He has a bail application set down for tomorrow morning. If bail is not granted consideration might need to be given to the implementation of the ICO.

1. The offender has spent 14 days in custody in respect of these offences, which will be taken into account. I also take into account, by reduction of approximately 20%, the pleas of guilty. The deductions have been factored into the sentences set out below. The length of the sentences reflect the amounts involved (Count 1: $2,083.95; Count 2: $418.50; Count 3: $5,096.35; Count 4: $561.40; Count 5: $1,525.72; Count 6: $1,762.18).   

1. I make the following orders:

(a)For the first offence of obtaining a financial advantage by deception (CC2017/12639), the offender is sentenced to 6 months imprisonment commencing 14 January 2020 and ending 13 July 2020.

(b)For the second offence of obtaining a financial advantage by deception (CC2018/2469), the offender is sentenced to 3 months imprisonment commencing 14 June 2020 and ending 13 September 2020.

(c)For the third offence of obtaining a financial advantage by deception (CC2018/2473), the offender is sentenced to 9 months imprisonment commencing 14 August 2020 and ending 13 May 2021.

(d)For the fourth offence of obtaining a financial advantage by deception (CC2018/2482), the offender is sentenced to 3 months imprisonment commencing 14 April 2021 and ending 13 July 2021.

(e)For the fifth offence of obtaining a financial advantage by deception (CC2018/2484), the offender is sentenced to 6 months imprisonment commencing 14 June 2021 and ending 13 December 2021.

(f)For the sixth offence of obtaining a financial advantage by deception (CC2018/10395), the offender is sentenced to 6 months imprisonment commencing 14 November 2021 and ending 13 May 2022.

(g)For the offence of unlawful possession of stolen property (CC2017/13242), the offender is sentenced to 2 months imprisonment commencing 14 April 2022 and ending 13 June 2022.

(h)The total period of imprisonment is 2 years and 5 months which is to be served by way of an Intensive Correction Order. The offender is to accept the supervision of ACT Corrective Services and comply with the core conditions specified in s 42 of the Crimes (Sentence Administration) Act 2005 (ACT).

I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.

Associate:

Date: 28 January 2020