R v Ok
[2016] ACTSC 132
•9 June 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Ok |
Citation: | [2016] ACTSC 132 |
Hearing Date: | 2 June 2016 |
DecisionDate: | 9 June 2016 |
Before: | Burns J |
Decision: | See [20]–[22]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – property offences – obtaining property by deception – monies obtained through thousands of separate transactions – offender was an employee – no causal connection between offender’s mental health and offending – guilty plea – good prospects of rehabilitation – general deterrence – imprisonment imposed. |
Cases Cited: | R v Griffiths [2015] ACTSC 341 R v Riordan [2015] ACTSC 26 |
Parties: | The Queen (Crown) Leng Ok (Offender) |
Representation: | Counsel Mr T Hickey (Crown) Mr J Papas (Offender) |
| Solicitors ACT Director of Prosecutions (Crown) Ben Aulich & Associates (Offender) | |
File Numbers: | SCC 195 of 2015; SCC 200 of 2015 |
BURNS J:
Leng Ok, you have entered a plea of guilty to one charge of obtaining property by deception in the amount of $60,000. The maximum penalty for this offence is 10 years imprisonment. An Agreed Statement of Facts was tendered at your sentence hearing. I will not now recite those facts. It is sufficient to say that between May 2010 and July 2014, through thousands of separate transactions, you stole $60,000 from your employer, Canberra Fresh Group Pty Ltd which traded as Ziggy’s Market Fresh in Belconnen. You used your knowledge of the way in which the cash registers worked to void transactions and to take money from the till without the till being out of balance at the end of the day. The method you adopted was not sophisticated but it was easy to implement and relatively difficult to detect.
After your misappropriation of these monies was discovered by your employer they confronted you and you made partial admissions and offered to repay the money you had taken. You told your employers that you used the money to feed your family. I note that there is no evidence that your family was in financial difficulty throughout this period and it appears that both you and your husband were in employment. I am satisfied that your motive was one of greed. You saw an easy opportunity to steal the money and you took that opportunity.
I am satisfied that at the time you misappropriated these monies you knew that the business in which you were employed was in financial difficulty. You knew that it was a family business. You also knew that the family home of one or more of the owners had been sold in order to try to keep the business afloat. You knew that this was particularly distressing and stressful to your employers but you nevertheless chose to continue stealing from the business. On occasions you told your employers when you said that you had seen other employees taking stock without paying for it. This was conduct calculated to make your employers trust you and to deflect any suspicion of wrong doing away from you.
Whilst you have pleaded guilty to a single offence, that offence covers a multitude of dishonest transactions over approximately four years. During that period you abused the trust placed in you by your employers and you took advantage of your knowledge of the way in which the business operated to steal a large sum of money to satisfy your personal greed. At the sentence hearing you produced to the Court a bank cheque in the sum of $60,000 which was the sum you agree you misappropriated. You also agreed to pay a further sum of $7,200 in interest on that sum of $60,000. This figure of interest was agreed between your lawyers and your employers. I therefore accept that you have made almost complete reparation and you have promised to pay the remaining interest within a period of three months.
Subjective Features
A Pre-Sentence Report was prepared for the sentence hearing. You are 52 years old and you were born in Cambodia. Your early years were marred by extreme poverty, periods of displacement from your family and other traumatic events. At that time where you were living was described in the Report as a war zone. Doubtless the effects of your early life continue to affect you to this day. You came to Australia with your family in your late teenage years. You continue to have close and supportive relationships with your parents. You reside in secure accommodation with your husband and four sons. Your husband and eldest son are aware of your offending and remain supportive. Your formal education is limited to lower primary level.
After being dismissed from your employment as a result of your present offence you obtained another job as a part-time hotel house keeper. You reported no use of illicit drugs and very limited alcohol consumption. You said that you are an active member of the Cambodian community; volunteering your time to teach traditional dance and to assist with fundraising events.
You told the author of the Report that you suffered a heart attack in 2006 and that subsequently you take prescription medication and limit your work hours. You commenced attending a psychologist in March 2015. I will refer to the Report from that psychologist in a moment. You expressed to the author of the Pre-Sentence Report remorse for your actions but you were unable to provide any reason for what you did. You were assessed at low risk of general re‑offending.
A Report dated 11 May 2016 by Ms Angela Patch, a clinical psychologist, was tendered at the sentence hearing. You were referred to Ms Patch by your General Practitioner in early 2015 and you attended 11 or 12 sessions with her. In her Report Ms Patch sets out your personal history of your early life in Cambodia and the atrocities to which you were exposed. You told her that you lived in a refugee camp in Thailand from 1979 until 1982 after which you and your family came to Australia as refugees.
Based upon the information you provided to Ms Patch she formed the opinion that you met the requirements for a diagnosis of Post-Traumatic Stress Disorder and major depressive disorder. Based upon the information you provided to Ms Patch she concluded that you were suffering from these disorders in the period during which this offence was committed. Ms Patch was asked to comment upon any connection between the mental disorders you suffered and the offence you committed. Her response is not based on any explanation which you provided. She said that because of your chronic feelings of helplessness it is possible that your offending behaviour may have, at some level, been a subconscious reaction to your belief that there was not much at stake. In my opinion this is speculation on the part of Ms Patch.
I accept that you reported a chronic sense of helplessness as a consequence of trauma you experienced as a child and young adult but it is simply speculation to suggest that this sense of helplessness was a causal factor in your offending in the way suggested by Ms Patch. I accept that your mental health conditions are to be considered as part of your background for sentencing purposes but I am not satisfied that there is any causal connection between those conditions and your offence. One reason why I have reached that conclusion is that your disorders have been apparently longstanding but this offending conduct did not commence until 2010 and there is no evidence to support a proposition that your mental health deteriorated at about this time.
There is no evidence to suggest that your mental disorders cannot be appropriately treated in custody or that they will make serving a sentence of imprisonment more difficult for you than for someone who does not have such a disorder. I do accept that the presence of these disorders requires some moderation of the significance of general deterrence to sentencing. I take into account the fact that you have no prior convictions. In cases of this type this fact has limited weight. It was because you were a person of apparently good character that you were placed in a position of trust which enabled you to commit this offence.
Character Reference
I take into account the contents of a letter written by your husband, he says that you have demonstrated remorse and taken responsibility for your actions. He says that this offence is out of character and that you have been a good wife and mother and that you volunteer your time to assist the Cambodian community. You also help support your ageing parents. Your husband also refers to your disadvantaged youth and in particular your circumstances in fleeing the war in Cambodia.
Consideration
You entered your plea of guilty on 7 April this year after you were committed for trial on different charges. The current indictment was presented after negotiations between your lawyers and the Office of the Director of Public Prosecutions. Your plea cannot be said to be a plea at the earliest opportunity but I accept that it was a relatively early plea, that your plea reflects remorse on your part and also had significant utilitarian value. I will reduce by approximately 20 per cent the otherwise appropriate sentence to reflect your plea of guilty.
Your counsel referred me to two prior decisions concerning like offences. In the case of the R v Griffiths [2015] ACTSC 341 (Griffiths) I imposed sentences of periodic detention and a suspended term of imprisonment with respect to offences of misappropriating money in the sum of approximately $140,000 from the offender’s employers. The offender was 48 years old at the time of sentencing. There was an early plea of guilty and the offender had been subject to abuse and trauma as a child. Partial reparation had been made by the offender. The offender suffered from an impaired sense of self, low self-worth and significant negative self-beliefs but there was no evidence linking this to the offending. Of particular significance to the outcome in Griffiths was the fact that the offender voluntarily ceased offending before she was caught.
The second decision to which I was referred was the R v Riordan [2015] ACTSC 26 (Riordan). The offender in that matter pleaded guilty in the Magistrates Court to two charges involving in total the misappropriation of nearly $53,000 from her employer. She was 43 years old at the time of sentencing. Her offending was confined to a period of seven or eight months. That offender was abused as a child and had had contact with ACT Mental Health over a number of years but there was no evidence of any formal mental health condition being connected to her offending. No reparation had been made to the victim. An aggregate sentence of 21 months imprisonment was imposed which was wholly suspended and a Good Behaviour Order was imposed requiring the offender to complete 300 hours of community service.
There are significant objective differences between those two cases and your case. In neither of the other cases was there any evidence that the victim was struggling financially and that the offender knew that fact. In the case of Riordan the offences extended over only seven or eight months involving about seven transactions. In the case of Griffiths one offence occurred over a 15 month period and the second over a 17 month period. As I have already noted the offender in that case voluntarily ceased her offending before her misappropriations were discovered.
In your case your offending continued over some four years involving thousands of dishonest transactions. You did not desist until you were caught. You knew that your employer was in financial difficulty; to the extent that a family home had to be sold to keep the business afloat. In my opinion, your culpability with respect to this offence is significantly greater than that of the offenders in Griffiths or Riordan. I accept that you have good prospects for rehabilitation, based upon your community supports and your prior lack of convictions.
Your counsel submitted that a fully suspended sentence of imprisonment would be appropriate for this offence. I cannot agree. A fully suspended sentence of imprisonment involves considerable leniency compared to a sentence that must, to some extent, be served by way of full‑time imprisonment. While specific deterrence is not a strong requirement in sentencing you, general deterrence, moderated to reflect your mental health conditions, punishment and denunciation are particularly significant. I am satisfied that a just and appropriate sentence, balancing your strong, subjective features against the high level of culpability involved is one which requires at least some period of full‑time imprisonment.
Sentence
I record a conviction and you are sentenced to 16 months imprisonment, which I have reduced from 20 months to reflect your plea of guilty. That sentence will commence on 9 June 2016 and expire on 8 October 2017, of which the period commencing today, 9 June 2016, and expiring on 8 October 2016 is to be served by way of full‑time imprisonment.
The remaining 12 months of that sentence will suspended and there will be a Good Behaviour Order for a period of 18 months commencing on 9 October 2016 with a condition that you are to accept the supervision of ACT Corrective Services for that period of 18 months or such lesser period as deemed appropriate by your supervising officer and you are to obey all reasonable directions of officers of ACT Corrective Services during that period of supervision.
I also make a reparation order requiring the offender to pay reparation to Canberra Fresh Group Pty Ltd the sum of $67,200. This is to be paid within a period of mine months. I note that $60,000 has already been paid into the Court’s trust account. I direct that amount be out forthwith.
| I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Burns. Associate: D Scuteri Date: 27 June 2016 |
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