R v QU
[2019] ACTSC 155
•14 June 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title:
R v QU
Citation:
[2019] ACTSC 155
Hearing Dates:
1 February; 24 May 2019
Decision Date:
14 June 2019
Before:
Loukas-Karlsson J
Decision:
See [90].
Catchwords:
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – obtaining property and financial advantage by deception – delay – intensive corrections order
Legislation Cited:
Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 11, 33
Criminal Code 2002 (ACT) ss 326, 332
Cases Cited:
Bugmy v The Queen [2013] HCA 37; 249 CLR 571
Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428
Giourtalis v R [2013] NSWCCA 216
Hili v the Queen [2010] HCA 45; 242 CLR 520
Johnston v R [2017] NSWCCA 53
Markarian v The Queen [2005] HCA 25; 228 CLR 357
McLeod v Queen [2018] ACTCA 59
Mill v The Queen (1988) 166 CLR 59
R v Griffiths [2015] ACTSC 341
R v Henry [1999] NSWCCA 111; 46 NSWLR 346
R v Hill [2016] ACTSC 310
R v Houghton [2000] NSWCCA 62
R v Hopkins [2004] NSWCCA 105
R v Howard [2018] VCC 967
R v Martin [2007] VSCA 291; 20 VR 14
R v McGowan [2015] ACTSC 320
R v McLeod [2018] ACTSC 228
R v Meyboom [2012] ACTCA 48
R v Mooney [2017] ACTSC 358
R v Mooney [2018] ACTCA 24
R v Morris [2017] ACTSC 400
R v NQ [2017] ACTSC 317
R v Pham [2015] HCA 39; 256 CLR 550
R v Pont [2000] NSWCCA 419; 121 A Crim R 302
R v Reid [2016] ACTSC 24
R v Samani [2016] ACTSC 257
R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103
R v Verdins [2007] VSCA 102; 16 VR 269
R v Woodman [2001] NSWCCA 310
Samani v The Queen [2017] ACTCA 23
Scook v The Queen [2008] WASCA 114; 185 A Crim R 164
Zdravkovic v The Queen [2016] ACTCA 53
Parties:
The Queen (Crown)
QU (Offender)
Representation:
Counsel
M Howe (Crown)
S McLaughlin (Offender)
Solicitors
ACT Director of Public Prosecutions (Crown)
Legal Aid ACT (Offender)
File Number:
SCC 254 of 2018
LOUKAS-KARLSSON J
Introduction
On 27 September 2018, QU (the offender) pleaded guilty to three counts of obtaining property by deception contrary to s 326 of the Criminal Code 2002 (ACT) (Criminal Code) ((CC2018/788 (Count 1), CC2018/795 (Count 2), CC2018/796 (Count 3)) and one count of obtaining a financial advantage by deception contrary to s 332 of the Criminal Code (CC2018/814 (Count 4).
The maximum penalty for both offences is a fine of $150,000, 10 years of imprisonment, or both.
Agreed Facts
The agreed facts are set out in the Statement of Facts, which forms part of the Crown Tender Bundle. Those facts include details of each of the transactions constituting the offending. These are briefly summarised below.
The offending occurred over the period of 11 December 2011 to 13 November 2013, when the offender held the position of finance officer of Summernats Pty Ltd (Summernats). The total amount obtained by the offender was $160,430.39, including superannuation payments.
Count 1 is constituted by 225 transactions of a similar method. Between 11 December 2011 and 13 November 2013, the offender obtained $127,934.93 by using Summernats’ banking system to create payments to her personal bank account, using a false or equivocal description, or no description, for the payment.
Counts 2 and 4 are constituted by 28 transactions of a similar method. Between 11 December 2011 and 28 June 2013, the offender obtained $25,081.10 by accessing the Summernats payroll database and creating wage payments for herself for which she was not entitled. As a result of these payments the offender accrued $2,119.36 in superannuation payments. These superannuation payments constitute the s 332 offence.
Count 3 is constituted by 11 transactions of a similar method. Between 14 August 2013 and 25 October 2013, the offender obtained $5,295 by cashing cheques that she had filled out using Summernats’ chequebook.
In total the offending conduct totalled over 260 transactions during a period of 23 months.
Objective Seriousness
In assessing the objective seriousness of these offences, the prosecution submitted that the Court should have regard to the following factors: the amount of money involved (R v Reid [2016] ACTSC 24 (Reid) at [40]), the length of time over which the offending occurred, the motive for the offending, the degree of planning and any breach of trust (the prosecution submitted this to be a ‘key’ feature of aggravation: R v Pont [2000] NSWCCA 419; 121 A Crim R 302 at [44]).
10. The prosecution submitted that generally, as there are a number of acts that have been rolled up into each offence, the criminality in the charges is high, particularly in respect of Count 1. In respect of the considerations outlined above it was submitted that:
(a) the amount taken was significant, being $160,430.39;
(b) the length of time, almost two years, demonstrates a degree of planning and a lack of impulsiveness;
(c) the motive was to fund drug and gambling habits and that the latter should not mitigate an offender’s sentence (Reid at [66]). The “rare case” referred to in Johnston v R [2017] NSWCCA 53 (Johnston)) where a reduction may apply is not applicable;
(d) the number of transactions and the length of time indicate a “marked degree of planning” even if aspects of the offending were unsophisticated; and
(e) given the offender’s role as finance officer and the specific responsibilities that such a role entails, where she was “to a large extent, in control of the system to which she was exploiting”, there was a breach of trust by the offender towards her employers. The prosecution noted that the offender was one of only two people who had access to the onsite safe and banking system.
11. Counsel for the offender submitted that there was no “usual sentencing pattern” for these offences but that considerations should include the amount of money, the number of transactions, the length of offending, degree of sophistication, any attempt to cover the offending up and, to a lesser degree, the use of the proceeds.
12. Counsel for the offender submitted that generally there was “a very significant lack of sophistication” in the offending in that the conduct was easily traceable on discovery. In that respect it was submitted that there was no attempt, or minimal attempt, to conceal the conduct. It was also submitted that the marked increase in offending which occurred in 2013 was the result of a technical “glitch” which allowed the transfer of funds to the offender’s personal account to occur more easily, being a “perfect recipe for disaster” in light of the offender’s gambling and drug addictions.
13. I find the offences to be above mid-range. The first count is clearly the most serious. Nevertheless, it must be stated that references to low range, middle range and high range objective seriousness are unlikely to be helpful. As has previously been expressed in this jurisdiction, “it is preferable for a sentencing judge to confine themselves to identifying the particular features of the case that inform the objective seriousness of that case” (R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [24]). The relevant matters are set out above. The features identified by the prosecution inform my view of the objective seriousness. I accept the submissions made by the prosecution as they accord with my view of the identifying features of the case and the objective seriousness.
Subjective Circumstances
14. In evidence before me is the Pre-Sentence Report (PSR) prepared for the offender.
15. The offender is a 48 year old woman, who was born in Albury, NSW, and is one of three siblings to her parents union. The offender described her childhood in mostly positive terms, but noted three events of significance: her parent’s divorce when she was aged 14 years old, her brother’s diagnosis of cancer and being the victim of repeated sexual assault by a relative.
16. The offender has four children, aged 13, 22, 24 and 26, as well as one step-daughter aged 33, from two previous relationships. The offender described both relationships in negative terms and reported that she struggled with gambling and drug addictions during her last relationship, which ended two years ago. The offender has a good relationship with her children and her five grandchildren. The offender currently lives with her two youngest children in an ACT Housing property.
17. The offender left formal education after completing Year 10 and undertook secretarial studies before obtaining employment in the public service. She reported a consistent employment history in administration roles in the private and public sectors. She is currently employed as a bookkeeper on a casual basis, and has no outstanding debts. The offender also currently volunteers on a weekly basis at St Benedict’s preparing lunch for the disadvantaged.
18. The offender denied past or present issues with alcohol, but reported using amphetamines occasionally since the age of 18. In 2013, she began using methamphetamine on a weekly basis, before increasing to a daily basis for approximately three years. During this period, the offender reported using 0.1g of methamphetamine per day. However, she has denied using any illicit substances for over two years. The offender currently is engaged with Toora Women Inc. for counselling with a focus on her continued abstinence from methamphetamine use and gambling.
19. In the years leading up to the commission of the offences, the offender reported spending thousands of dollars per week on poker machines, but has denied gambling for the past two years.
20. The PSR concludes with an opinion as follows:
[The offender has] a limited criminal history. She presented with pro-social factors in her life, such as stable accommodation, employment and ongoing support from her family. In addition, she has expressed insight into her offending behaviour.
[The offender] has been assessed as low risk of reoffending and would benefit from continued engagement with the Toora Women Inc. and interventions with a particular focus on her mental health and decision making.
21. In oral submissions, counsel for the offender submitted that following her departure from her ex-partner, whom it was submitted was a “poor influence” on the offender, the offender ceased her use of illicit substances and her reliance on gambling.
22. I take the subjective matters into account on sentence.
Psychological Report
23. In evidence before me is a Psychological Assessment Report under the hand of Dr Clout dated 11 January 2019.
24. The report notes the offender has experienced recurrent episodes of Major Depressive Disorder throughout her life and acknowledged behaviours consistent with Stimulant Use Disorder and Gambling Disorder between 2011 and 2016. The report refers to the sexual abuse experienced by the offender in her childhood and the abuse suffered in a violent relationship.
25. Dr Clout stated the following:
Research into interpersonal trauma suggests a strong association between sexual abuse and subsequent mood and substance use disorders, so it’s likely her past trauma had a causal role in her later Major Depressive Disorder and Stimulant Use Disorder. In addition, child sexual abuse has been linked with the development of problem gambling, and her past trauma may have also contributed to her Gambling Disorder.
26. Dr Clout concludes that the Gambling Disorder, associated with impaired cognitive processes, combined with increased impulsivity and disinhibition from drug use, likely contributed to the offending.
27. Dr Clout considered the offender would benefit from continued treatment and noted:
As [QU] is not currently suffering from any mental impairment or condition she is not likely to find incarceration more onerous than someone of normal mental health. However she does remain more vulnerable to relapses of Major Depressive Disorder than individuals who have not experienced prior episodes.
28. The prosecution drew the Court’s attention to the link drawn by Dr Clout in respect of the sexual abuse and that the gambling disorder, being made in a general sense compared to the link between the depressive disorder and the sexual abuse. Counsel for the prosecution submitted (T 7.30-45)
[I]t's likely her past trauma had a causal role in her later major depressive disorder and stimulant use disorder. In that sense, I accept that there could be a positive link between the trauma and certainly her depressive disorder.
…
However, in relation to the gambling, it's put in a much more general sense by Dr Clout where it says:
In addition, child sexual abuse has been linked with the development of problem gambling.
In my submission, that's a general comment.
29. The prosecution further submitted that these matters gain importance to the extent that they reduce moral culpability for the offending. However, where, as here, the offending is over a long period of time, a reduction in moral culpability is not warranted. This offence was contrasted to matters of impulsive conduct (Bugmy v The Queen [2013] HCA 37; 249 CLR 571).
30. Counsel for the offender noted the recognition by Dr Clout of the effect of the offender’s brother’s cancer diagnosis, her prior abusive relationship and the fact that, as a child, the offender was repeatedly sexually abused by her grandfather, who also abused her younger sister and female cousin. It was noted that Dr Clout reported that the offender scored in the “severe to extremely severe category” of experience of sexual abuse. I note counsel for the offender did not make submissions based on the principles enunciated in R v Verdins [2007] VSCA 102; 16 VR 269.
31. Counsel for the offender also noted the assessment by Dr Clout that the offender was “in a very low risk range” in terms of reoffending.
32. I take the psychological report into account on sentence in the manner outlined by the prosecution and counsel for the offender.
Letters and References
33. In evidence before me was:
(a) a letter from the offender’s counsellor at Toora Women Inc. dated 8 January 2019 and a certificate dated 6 December 2018 for a healing trauma course run through Toora. The letter included the following:
[The offender] has consistently displayed a positive attitude to counselling and has an excellent record of attendance. In addition to counselling, [the offender] has also completed our 6-week Healing from Trauma Group program. I believe [the offender] has recognised the usefulness of many tools introduced to her through this groupwork and she has utilised them to improve her wellbeing.
I believe [the offender] has made significant progress with strengthening her ability to continue maintaining a lifestyle free of drugs and gambling and she has increased her self-awareness and I believe she can continue to make progress into the future.
(b) a letter from Child and Youth Protection Services dated 15 January 2019 regarding the closure of the offender’s case, including the following:
Child and Youth Protection Services involvement with your family is no longer required.
(c) a letter of reference from the offender’s current employer (undated), including the following:
In July 2018 I found myself in need of a bookkeeper again and gave [the offender] a call to see if she was interested or available. She advised me that she was interested but needed to discuss her current situation with me first. [The offender] met with me in person [and] advised me that she had been working for a large business in Canberra and that whilst there she had started gambling and using drugs and that this had led her start taking money from the companies account. She advised me that she had left her partner and had stopped gambling and taking drugs. She advised me that [she] was to appear in court for the charges against her.
We spoke at length about her situation and I could see the deep remorse she felt for her actions and her desire to recapture her former self. She asked me if I still wanted to employ her knowing this information. To be honest It took me by surprise. In the years I had known [the offender] I had never seen this trait in her. I had never seen her take drugs of any kind nor even drink. I had seen her being a great parent. I’d seen her being a reliable, efficient and honest employee. I had never seen any evidence of a party lifestyle … no hangovers, or hazy days at work. It was a complete surprise to me and simply seemed completely out of character to the woman I had known earlier.
Based on my previous employment experience with [the offender], her courage and candour and her obvious desire to get her life back on track I was happy for her to start work with me again. She started work immediately and I began to see the profound impact that this had had on her. It seemed to me that she had worked hard to rediscover herself and even though she was nervous and conscious of her predicament she dove into the work. [The offender’s] unstoppable confidence began to return and once again quickly became an invaluable asset to my business. She has quickly become part of our community and is loved and trusted by our Directors, Shareholders, staff and patrons. It would be a devastating loss to our business and community if [the offender] were unable to continue to work with us.
(d) two letters of reference from the co-coordinator of St Benedict’s Community Centre dated 29 January 2019 and 3 May 2019 respectively, regarding the offender’s volunteering work for that organisation, the latter included the following:
[The offender] has volunteered at St Benedict’s Community Centre, helping to prepare free hot meals for vulnerable people starting on Christmas Day 2018.
She has come at least once a week since then, and has proven to be a reliable and hard worker. She has worked well within a small team, getting on well with people with a range of abilities and disabilities.
(e) a letter of reference from the treasurer of Capital Spirit DrillDance dated 20 January 2019 regarding the offender’s volunteering work for that organisation.
34. I take these letters and references into account on sentence.
Intensive Corrections Order Report
35. When this matter originally came before me on 1 February 2019 I determined that I should give serious consideration to the sentence being served by way of Intensive Corrections Order (ICO). To that end I referred the offender for assessment.
36. The ICO Report dated 12 April 2019 was carried out with the assistance of:
(a) six interviews with the offender;
(b) discussions with the offender’s employer, the offender’s sister, the offender’s son and Child and Youth Protection Services;
(c) perusal of documents of the Court and ACT Health; and
(d) tests including Alcohol Use Disorder Identification Test, Drug Abuse Screening Tool, Correction Victoria Treatment Readiness Questionnaire and a Revised Level of Service Inventory.
37. The report confirms much of the material contained in the PSR and notes that her compliance with the report process was satisfactory, that she continues to receive support from family and that she continues her casual employment.
38. The report concludes with the following:
[QU] has engaged health professional and is taking appropriate medication to assist in managing anxiety and depression issues. She continues to receive professional support from Toora Women’s Inc. and has previously engaged in receiving support from Directions Health Services.
To her credit, [QU] removed herself from an abusive and dysfunctional relationship and her family members and friends have commented on the positive changes she has made to her life since then.
39. The ICO Report recommends the offender as suitable for an ICO.
Remorse
40. The PSR notes that the offender was aware her actions were wrong and, while reporting she committed the offences to fund drug and gambling habits, did not attempt to justify her actions.
41. Dr Clout’s report also notes the offender expressed guilt, shame and remorse for the offending and that the offender reported that:
[S]he feels “terrible” that she betrayed the community and people’s trust, and may have impacted on the Summernats’ Directors personal financial situation.…
…
She expressed a positive view of personal change and said she is currently volunteering…to try and “make-up” for some of the bad things she has done.
42. The prosecution accepted there was evidence the offender was remorseful (T 9.25). I take the offender’s remorse into account on sentence.
Criminal History
43. The offender has a minor criminal history which the prosecution did not press as being of any particular significance in this context.
44. The prosecution submitted that this factor is of lesser significance when sentencing for this type of offence, as offenders are in a position to commit offences of this nature because they are people of apparent good character: R v McLeod [2018] ACTSC 228 at [36]. In this respect, the prosecution also referred to the decision of R v Houghton [2000] NSWCCA 62 at [18] for the proposition that prior good character is to be given less weight in circumstances where a breach of trust occurs over a lengthy period of time. I accept this submission.
Plea of Guilty
45. The offender entered pleas of guilty in the Magistrates Court prior to the brief of evidence being served. The prosecution conceded that the pleas of guilty were at an early stage and had a significant utilitarian value (Written Submissions, pg 3; T 4.33).
46. Counsel for the offender noted that the matter originally came before the Court in the form of numerous charges and it proceeded on the basis that guilty pleas would be entered to rolled up charges. Submitting that the pleas can therefore be considered early, counsel for the offender suggested that a discount “in the vicinity of 25%” would be appropriate.
47. The prosecution did not submit against the discount suggested by counsel for the offender.
48. I will therefore allow a discount of approximately 25% for the pleas of guilty.
Time in Custody
49. The offender has spent no time in custody referable to this offence.
Cases
50. Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). There are a number of decisions of this court relating to offenders who committed similar offences. The following cases from this jurisdiction provide a “yardstick” as referred to by the High Court in relation to this sentencing exercise: Hili at [53]-[54]. Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4] that:
“considerations to which a sentencing judge is obliged … to have regard cannot be applied mechanically … given that the factors that must be taken into account are incommensurable, and … in many respects, inconsistent”
51. Both parties referred me to the decision of R v Mooney [2017] ACTSC 358. In that case the offender pleaded guilty to three offences of obtaining property by deception, one offence of obtaining financial advantage by deception and one offence of using a false document. The offending involved over 600 transactions amounting to a total benefit of over $157,609, carried out in the offender’s position as finance officer of a non-profit organisation. The offender took actions to cover up the offending. Applying a discount of approximately 15%, the offender was sentenced to 3 years’ imprisonment with a non-parole period of 18 months. An appeal that the sentence was manifestly excessive in R v Mooney [2018] ACTCA 24 was unsuccessful. In relation to the current sentencing practice, the Crown also drew the Court’s attention to the summary of comparable cases in that decision at [43]-[47].
52. The prosecution also referred me to the following comparable cases.
53. In R v Samani [2016] ACTSC 257, the offender pleaded guilty to a number of offences relating to a staged motor vehicle accident. The offender had no criminal record, had expressed remorse and was found to have good prospects of rehabilitation. Applying discounts of approximately 20%, the offender received a total head sentence of 2 years and 4 months imprisonment, suspended after 6 months with a good behaviour order. In respect of the particular offence of dishonestly obtaining a financial advantage the sentence imposed was 7 months, reduced to 5 months. The appeal on the basis of manifest excess and a failure to consider an ICO in Samani v The Queen [2017] ACTCA 23 was dismissed.
54. In R v Morris [2017] ACTSC 400 (Morris), the offender pleaded guilty to eight counts of obtaining property by deception, relating to 19 acts resulting in a benefit of over $191,141 to the offender over an eight month period, on top of which the offender’s employer sustained further losses. The offender was found to have expressed remorse and have good prospects for rehabilitation, but the sentencing judge nevertheless considered the value of the property and the moral culpability of the offender as significant. Applying discounts of approximately 25%, the offender received a total sentence of 20 months imprisonment, 5 months of which to be served in full-time custody, suspended thereafter with a good behaviour order. A reparation order in the amount of $161,576.70 was also made.
55. Counsel for the accused referred me to a number of comparable cases, summarised below.
56. In R v Griffiths [2015] ACTSC 341, the offender pleaded guilty to two offences of obtaining property by deception, for obtaining approximately $140,000 from two business who employed the offender during a period of under three years. The offender had a minimal criminal history, was abused by a family member and was motivated to commit the offences due to financial hardship of her family. Following the discount of 25%, the offender was sentenced to 8 and a half months served in periodic detention and a further 13 months wholly suspended with a good behaviour order. The offender was also ordered to pay reparations.
57. In R v McGowan [2015] ACTSC 320, the offender pleaded guilty to a number of offences, including an offence of obtaining financial advantage and two offences of obtaining property by deception. The offences included rolled up charges and related to 216 transactions resulting in the offender obtaining over $129,000 over a three year period. The offender came from an abusive background and was diagnosed with significant physical and mental health conditions, although they participated in forgeries to cover up the offending. Following a 10% discount, the offender was sentenced to six months of periodic detention and, taking into account periods of accumulation, an additional period two years imprisonment, suspended with a good behaviour order.
58. In R v Howard [2018] VCC 967, the offender pleaded guilty to a number of offences for the appropriation of funds in her voluntary role as the bookkeeper of a community organisation. The amount in question was over $240,000 over a period of approximately 4 years. The offender had no criminal history, had a disadvantaged upbringing, was being treated for mental health conditions and ultimately paid the entire amount of money back. The offender was sentenced to a community corrections order for a period of 3 years.
59. In R v NQ [2017] ACTSC 317, the offender pleaded guilty to four offences of obtaining property by deception and one offence of theft. The offending was committed over a period of three years and amounted to a total benefit of over $406,875.80 to the offender while they were an assistant to the CEO of a community youth club. The offender suffered a disadvantaged and abusive upbringing and attributed the offending to a gambling habit but did not express insight into the offending and was found to have limited prospects of rehabilitation. After a discount of 25%, the offender was sentenced to a head sentence of three years, suspended after 15 months upon entry into a good behaviour undertaking.
60. In Reid, the offender pleaded guilty on the fifth mention of the matters to seven offences of dishonestly obtaining property by deception. The offender was a bank manager who used his position to take money from the bank accounts of four individuals. The total loss suffered was $338,103.70 consisting of $272,167.72 in customer losses and $73,907.70 in bank investigations. The offender was ordered to pay back the total amount and serve a total sentence of 3 years 2 months imprisonment, consisting of eight months in full-time custody, followed by a suspended sentence under a good behaviour order. Counsel for the offender submitted Reid was a “markedly different case”.
Delay
61. Counsel for the offender drew the Court’s attention to the fact that the offending was uncovered, and certain admissions were made by the offender, in November 2013. Following this, Summernats undertook a 14 month investigation into its accounts and provided the information to police in January 2015. The offender first appeared in the Magistrates Court for this offending in 2018. Counsel for the offender noted the remaining delay from then on is unexplained.
62. Counsel for the offender referred to Scook v The Queen [2008] WASCA 114; 185 A Crim R 164 (Scook) at [57] (see also Giourtalis v R [2013] NSWCCA 216) for the proposition that leeway be afforded for the investigation of fraud matters, but noted there was no obstruction to the investigation by the offender and that it was not in the category of cases which would take such a significant period of time to proceed. Counsel for the offender noted that, without explanation for the delay, it was open to the Court to make a reduction of penalty, of the kind discussed by Buss JA in Scook.
63. In respect of delay it was submitted by the prosecution:
The Crown accepts there has been a not insignificant delay between the offending and the current sentence proceedings (slightly over 5 years). The Court will need to consider any demonstrated rehabilitation as well as the state of uncertain suspense the offender has endured as a result.
The Crown does note that the nature of this kind of offending will invariably cause some delay given the investigative steps required for detection. The Crown does not [suggest] that this provides an explanation for all of the delay.
64. I take the delay into account along with the demonstrated rehabilitation, as outlined above, as the submissions of the prosecution and counsel for the offender are broadly consistent and accord with my view of the correct approach to the delay.
Statutory and Other Relevant Considerations
65. In sentencing the offender, the court is required to take into account those matters under s 33 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) that are known and relevant. I have referred to the relevant matters above.
66. The courts have consistently emphasised the prominence of general deterrence in sentencing for offending of this nature (Morris at [10]). It is important that the courts make it clear that those who breach the trust of their employers in order to misappropriate the funds of their employers can expect real punishment.
67. The court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7 of the Sentencing Act. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, rehabilitation, denunciation, and recognition of harm to the victim are important sentencing considerations.
68. In respect of specific considerations to be taken into account under s 33 of the Sentencing Act, the prosecution referred the Court in particular to the fact that a breach of trust was involved (s 33(1)(u)), in respect of drug addiction (s 33(1)(p)) that this should not mitigate in an offender’s favour for fraud related offences (Johnston at [41]) and in respect of the gambling motivation (s 33 (1)(v)) this should not mitigate sentence (Reid at [66]) particularly where it is prolonged offending. This is not a “rare case” where the offender can seek any mitigation based on their gambling addiction: Johnston. I take these matters into account.
69. In addition, the prosecution submitted that the fact that the offender had not repaid the money, while not a matter going to the objective seriousness of the offending itself, should nevertheless be considered in light of s 33(1)(e), regarding the loss resulting from the offence (McLeod v The Queen [2018] ACTCA 59). Counsel for the offender submitted that while the offender did not presently have the means to do, she has expressed both in the PSR and in the report of Dr Clout, a willingness to pay back the amount taken. The prosecution noted this was not a matter where a formal reparation order was sought from the victim. Additionally, I take these matters into account.
70. Due to the “enormous variation” in objective and subjective circumstances in fraud offences, the prosecution submitted that greater assistance is gained from general sentencing principles (R v Woodman [2001] NSWCCA 310). There is merit to this submission.
71. Counsel for the offender submitted that hardship to the offender’s family was a mitigating factor, noting the circumstances must be exceptional to be a mitigating factor. It was submitted particular regard should be had to the offender’s 13 year old daughter and 22 year old son. In relation to her son, it was submitted there is “a very significant suspicion that he is suffering from schizophrenia” and efforts are being made to have him diagnosed (T 26.15). The prosecution submitted that this was not a case of exceptional hardship as discussed by the relevant authorities.
72. In this case, in light of the authorities, I find that the circumstances are not exceptional and therefore deal with this aspect as part of the subjective matters: see s 33(1)(o) of the Sentencing Act.
73. As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.
74. Drug addiction is a relevant circumstance for the Court to consider but is not, of itself, a mitigating factor: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [193]-[203], [273] and [347]; R v Martin [2007] VSCA 291; 20 VR 14 at [19]-[30]. The same approach is relevant for gambling addiction (Johnston at [41]).
75. When sentencing for multiple offences, I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Zdravkovic v The Queen [2016] ACTCA 53 at [64] (Zdravkovic). The real question is whether the total sentence is “just and appropriate” to reflect the total criminality: Mill v The Queen (1988) 166 CLR 59 (Mill); R v Meyboom [2012] ACTCA 48 at [66]; Zdravkovic at [71].
76. The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison. The prosecution submitted that, given the objective seriousness of the offending and the need for general deterrence, an ICO would be inappropriate and that some portion of the sentence needs to be served by way of full-time custody. Counsel for the offender accepted a sentence of imprisonment was appropriate. In this case, it was submitted by counsel for the offender that a term of imprisonment could be served by way of ICO (T 28.3).
Sentence
77. It must be recognised by the Court that the offences committed against the victims have had a serious and significant financial impact. I note here that no formal reparation order has been sought in this matter (T 7.7) although the offender has expressed a desire to repay the amount, as discussed above.
78. Both parties accepted that the offender must receive a sentence of imprisonment. The issue is the length of the sentence and whether it is essential that it be served by way of full-time imprisonment or whether it can be served by way of ICO.
79. Counsel for the offender submitted that given the efforts at rehabilitation made by the offender during the delay, her early pleas of guilty, her low risk of recidivism, her remorse, and in light of the reduced need for specific deterrence, an ICO would be appropriate.
80. The prosecution submitted that a period of full-time imprisonment is called for in the circumstances of this case.
81. The offender’s early pleas of guilty, her remorse, her suitability for an ICO, the delay and her demonstrated and very good prospects for rehabilitation point in my view in a direction other than a term of imprisonment served by way of full-time custody.
82. It is well to underline at this juncture that where two highly relevant considerations are incompatible, it is not necessarily the case that the end result must constitute some kind of averaging out between the two. There are circumstances in which one is entitled to be determinative: see for example R v Hopkins [2004] NSWCCA 105.
83. As stated by Murrell CJ in R v Hill [2016] ACTSC 310 (Hill) where a person has very good prospects of rehabilitation, the Court, by supporting those prospects in the sentence imposed, thereby also addresses likely future harm to the community and protection of the community. It was also emphasised in Hill that sentencing must always deliver individualised justice.
84. There will be exceptions to the necessity for full-time custody. In coming to a conclusion, by way of instinctive synthesis, I have taken into account all the matters discussed above including the objective seriousness of the offence, the subjective matters, the offender’s pleas of guilty, her remorse, the ICO report, the delay and her very good prospects for rehabilitation. I have had regard to the matters referred to in s 11(3) of the Sentencing Act, specifically, the level of harm to the victim and the community, whether the offender poses a risk to one or more people and the offender’s culpability for the offence having regard to all the circumstances.
85. The appropriate sentence for Count 1, obtaining property by deception, is 2 years and 8 months reduced to 2 years on account of the discount for the plea of guilty.
86. The appropriate sentence for Count 2, obtaining property by deception, is 1 year reduced to 9 months on account of the discount for the plea of guilty.
87. The appropriate sentence for Count 3, obtaining property by deception, is 9 months reduced to 7 months on account of the discount for the plea of guilty.
88. The appropriate sentence for Count 4, obtaining financial advantage by deception is 6 months and 15 days, reduced to 5 months, on account of the discount for the plea of guilty.
89. Overall there will be a sentence of 3 years, taking into account the appropriate periods of accumulation and concurrence.
Orders
90. I make the following orders:
(a) I record convictions in relation to the offences.
(b) In respect of the offence of obtaining property by deception (CC18/788), the offender is sentenced to a term of 2 years of imprisonment, commencing on 14 June 2019 and ending on 13 June 2021.
(c) In respect of the offence of obtaining property by deception (CC18/795), the offender is sentenced to a term of 9 months of imprisonment, commencing on 14 February 2021 and ending on 13 November 2021.
(d) In respect of the offence of obtaining property by deception (CC18/796), the offender is sentenced to a term of 7 months of imprisonment, commencing on 14 September 2021 and ending on 13 April 2022.
(e) In respect of the offence of obtaining financial advantage by deception (CC18/814), the offender is sentenced to a term of 5 months of imprisonment, commencing on 14 January 2022 and ending on 13 June 2022.
(f) The sentence is to be served by way of an Intensive Corrections Order pursuant to s 11 of the Crimes (Sentencing) Act 2005 (ACT). I impose the core conditions and the following additional conditions:
(i) That the offender undertake illicit substance relapse prevention, as directed by the Director-General; and
(ii) That the offender undertake ongoing mental health support, as directed by the Director-General.
I certify that the preceding ninety [90] numbered paragraphs are a true copy of the Reasons for Sentence her Honour Justice Loukas-Karlsson
Associate:
Date: 14.6.19
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