R v Raftery

[2022] ACTSC 77

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Raftery

Citation:

[2022] ACTSC 77

Hearing Date:

19 April 2022

DecisionDate:

19 April 2022

Before:

Elkaim J

Decision:

See [24]–[25]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – theft – serious health condition

Legislation Cited:

Criminal Code 2002 (ACT) s 308

Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 33

Cases Cited:

R v Cook [2018] ACTSC 302

R v Leighton [2016] ACTSC 354
R v NQ [2017] ACTSC 317

Parties:

The Queen ( Crown)

James Laurence Michael Raftery ( Accused)

Representation:

Counsel

R Christensen SC ( Crown)

J De Bruin ( Accused)

Solicitors

ACT Director of Public Prosecutions ( Crown)

ACT Legal Aid ( Accused)

File Number:

SCC 160 of 2021

ELKAIM J:

1. On 4 March 2022 the offender pleaded guilty to theft contrary to s 308 of the Criminal Code 2002 (ACT). The maximum penalty is 10 years’ imprisonment, and/or a fine of $160,000.

1. Although there is only one count the offender stole $292,240.70 in 18 separate transactions over a period of about six months. Details of the offences are set out in the Agreed Statement of Facts.

1. The offender stole the money from an elderly lady, Ms Sterns. Unlike another thief who stole over $300,000 from the same victim, this offender has not paid any of the money back (but see [25] below).

1. The offender was born in 1988. He has a long criminal record which includes offences of deception. The offender sought to make a distinction between his actions and the actions of a person who steals by deception. It was submitted that there was no evidence of actual deception. I disagree. I do not think that there is a distinction in this case. There must have been a deception in order for the funds to be transferred to the offender’s account.

1. Previous Intensive Corrections Orders have not corrected him. Unsurprisingly the pre-sentence report says he is not suitable for another ICO and he has a medium to high risk of reoffending.

1. The offender grew up in Canberra. His parents separated when he was very young and he stayed with his mother until she was sent to prison when he was nine years of age. After a period with his paternal grandparents he went to live with his father. The household was replete with illicit drugs.

1. The offender’s mother gave evidence in which she expressed her sorrow and guilt at letting the offender down as a carer and a mother. Her evidence forms part of the overall tragedy that has consumed the offender’s upbringing.

1. The offender completed Year 12 and then obtained qualifications in plumbing and hospitality. He worked as a plumber for some years. He has an unfortunate history of alcohol and drug use. He started young and used a wide range of drugs. He says that he stopped drinking alcohol and using illicit drugs. This seems to have followed a diagnosis of a heart condition in 2021. Unfortunately he has relapsed into drug use more recently. He seems to have taken an attitude of drug use as acceptable notwithstanding the risk of an early death.

1. The heart condition is non-ischaemic cardiomyopathy with an LV ejection fraction of 30 to 35 per cent. This I understand equates to a heart function of only 25 per cent.

1. The offender has some mental health problems. He has attempted self-harm and has been admitted to a psychiatric ward with suicidal ideation.

1. The offender does have an unfortunate and difficult personal history. I am entitled to, and do, take this history into account in sentencing. But stealing from an elderly person, nearing 90 years of age and suffering the beginnings of dementia, is reprehensible.

1. There is an affidavit from Ms Hannah Mitchell, a legal practitioner working under the DPP. The affidavit was affirmed on 14 April 2022. Ms Mitchell relates some information about the impact of the offending upon Ms Stern. A victim impact statement prepared by her cousin talks about the victim’s shock and bewilderment at being cheated and having her funds depleted.

1. I have been directed to some cases where there has been similar offending. As usual the cases are not precisely the same as the present matter, but they do provide some guidance. The cases include two of my own, namely R v NQ [2017] ACTSC 317 and R v Cook [2018] ACTSC 302. The offender also referred me to R v Leighton [2016] ACTSC 354.

1. I have taken into account ss 6, 7 and 33 of the Crimes (Sentencing) Act 2005 (ACT). Section 10 says prison is a last resort. The time for this resort has arrived.

1. The offender is relatively young so still has a prospect of rehabilitation.

1. I note the authors of the pre-sentence report said that the offender appreciated the wrongfulness of his conduct.

1. The plea of guilty entitles the offender to a discount on his sentence. The plea was however very late. I assess the discount at 15 per cent. I think there is remorse. I derive this from the plea and from the offender’s letter included in Exhibit 1.

1. As to the balance of the letter I think it is essentially a request to attempt rehabilitation before being sent to prison. The offender is understandably concerned that going to prison will not stop his use of drugs. In turn his heart condition may be fatal.

1. Ultimately I do not think I can delay the prison sentence. I intend to make it as short as possible within the bounds of sentencing principles including personal and general deterrence and, especially, the theft of money in circumstances such as exist here.

1. I am also satisfied that the AMC has appropriate medical facilities, either internally or through the Canberra Hospital, to address the offender’s heart condition.

1. I also observe that the medical facilities will be in a position to monitor the offender’s health on a continuing basis.

1. The offender has spent one day in custody to date.

1. The appropriate term of imprisonment is 15 months which comes down to 12 months and 3 weeks after reduction for the discount.

1. I make the following orders:

(i)The offender is sentenced to 12 months and 21 days’ imprisonment to commence on 18 April 2022 and end on 8 May 2023;

(ii)The above sentence of imprisonment is suspended after four months on condition that he enter a Good Behaviour Order for a period of two years on core conditions;

(iii)I request that the offender’s heart condition be brought to the attention of Corrective Services immediately upon his admission.

1. At the completion of my sentencing remarks, the Crown very properly brought to my attention that the Offender does assert that he has returned $20,000 of the money taken from Ms Stern. To the extent that I understand what I was told, it seems that money taken from Ms Stern actually exceeded the $292,000-odd but the proof of theft was confined to that amount. The fact that $20,000 has been returned whether it be from the $292,000 or some other amount does not affect my observations in respect of sentencing.

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: