R v NQ

[2017] ACTSC 317

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v NQ

Citation:

[2017] ACTSC 317

Hearing Date:

27 October 2017

DecisionDate:

27 October 2017

Before:

Elkaim J

Decision:

See paragraph [48]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – obtain property by deception – theft.

Legislation Cited:

Criminal Code 2002 (ACT) ss 308 and 326

Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 20 and 33(1)(za)

Cases Cited:

Bugmy v R [2013] HCA 37; 249 CLR 571

R v Evans [2017] ACTSC 218
R v Leighton [2016] ACTSC 354
Mitchell v R [2006] NSWCCA 72

Siwek v R [2017] NSWCCA 178

Parties:

The Queen (Crown)

NQ (Offender)

Representation:

Counsel

Mr J Hiscox (Crown)

Mr A Doig (Offender)

Solicitors

Office of the ACT Director of Public Prosecutions (Crown)

Capital Lawyers (Offender)

File Number:

SCC 7 of 2017

ELKAIM J:

Introduction

1. On 16 January 2017, the offender pleaded guilty to four counts of obtaining property by deception and one count of theft in the ACT Magistrates Court. She was committed to the ACT Supreme Court for sentence.

1. The offences of obtain property by deception are contrary to s 326 of the Criminal Code 2002 (ACT). The offence of theft is contrary to s 308.

1. The maximum penalty for both offences is a fine of $150,000 and/or 10 years imprisonment.

1. All of the offences involve the misappropriation of money. Some of the sums are substantial:

(a)Count 1: $272,434.36

(b)Count 2: $72,547.94

(c)Count 3: $49,892.65

(d)Count 4: $3,400.85

(e)Count 5: $8,600.00

1. The total amount involved is $406,875.80. The offences occurred over a period of nearly three years, while the offender was engaged by the Canberra Police Community Youth Club (CPCYC) as an assistant to the Chief Executive Officer (CEO) and, later, as the Chief Financial Officer (CFO).

1. The misappropriated money belonged to the CPCYC.

The offender’s background

1. The offender was born in Victoria in 1970. She has a criminal record but it dates back to 1988 and 1996. I do not see her record as impacting upon the current sentencing process.

1. The offender is an only child who has had a somewhat unstable relationship with her mother. There is, however, some limited continuing contact between them. She has had no contact with her father for about 10 years.

1. The offender is married. There are two children from this union.

1. The offender is diabetic. She requires medication for this condition and also for anxiety.

1. The matter was originally listed for sentence on 3 May 2017. The date was changed to 1 August 2017 to allow the offender to seek medical advice. The matter was then adjourned again to allow for further medical investigation. I was reluctant to grant the adjournment having regard, as conceded by the offender, to the inevitability of a prison sentence. However, the adjournment was not opposed by the Crown, with the observation that it would assist the sentencing process by notifying the Court of any serious medical condition suffered by…