R v Reid
[2016] ACTSC 24
•4 February 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Reid |
Citation: | [2016] ACTSC 24 |
Hearing Date | 18 December 2015 |
DecisionDate: | 4 February 2016 |
Before: | Penfold J |
Decision: | See [87] – [93] below. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – dishonesty offences – obtain property by deception – pleas of guilty – breach of employer’s trust – sustained course of conduct – significance of amount taken – victim impact statements – prior good character – some money used for gambling – suggestion of gambling addiction not supported by evidence – whether Crown obliged to disprove gambling addiction – whether gambling addiction a mitigating factor – comparable cases. |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) Crimes (Sentencing) Act 2005 (ACT), ss 7, 19, 33(1) Evidence Act 2011 (ACT), s 4(2) |
Cases Cited: | Craft v Diebert [2004] ACTCA 15 R v Berry [2012] ACTSC, Burns J, 2 October 2012 R v Wsol [2015] ACTSC 112 |
Parties: | The Queen (Crown) David Reid (Offender) |
Representation: | Counsel Ms K Mackenzie (Crown) Mr H Ford (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Hugh Russell Ford (Offender) | |
File Number: | SCC 196 of 2015 |
The offences
David Reid has pleaded guilty to seven offences of dishonestly obtaining property by deception. The offence is created by s 326 of the Criminal Code 2002 (ACT) and carries a maximum penalty including imprisonment for 10 years.
Circumstances of offences
The offences were committed over a period of 12 months between July 2013 and July 2014.
Mr Reid was, in May 2013, appointed as the manager of the Tuggeranong branch of Beyond Bank Australia, a mutual bank whose customers are its members (although I shall refer to them in these remarks as the bank’s customers). In that position he used a variety of methods to remove money from accounts held at the branch and to apply that money to his own benefit.
As the branch manager, Mr Reid was responsible for the cash holdings of the branch, including cash in the safe and the cash in the floats issued to the various tellers. He was trained in using the bank’s computer systems to move money in and out of individual accounts. Access to the system depended on the use of password protected user names, and such access is logged by reference to user names, times and dates. Transactions conducted on the individual accounts of bank customers required instructions from the customer concerned, who had to sign a copy of the receipt then generated for the transaction.
Within a short time after his appointment. Mr Reid built up a level of trust with his staff. and began directing staff not to lock their computer terminals or cash drawers when they left the relevant part of the premises.
A number of the unauthorised transactions on customers’ accounts were effected by Mr Reid using the computers, user names, or cash drawers of other staff members. This was contrary to bank policy. Many others were effected by Mr Reid in his own user name. Transactions included early withdrawals of term deposits, internal and external transfers, bill payments using BPAY, and cash and cheque withdrawals.
Mr Reid also opened and closed various accounts without the authority of the customers concerned, and changed mailing address records so that customers did not receive their statements.
There were four victims, or perhaps direct victims, of these offences.
Mr Reid accessed Rosalyn Carroll’s account repeatedly between July 2013 and July 2014. He drew cheques for $3,200 which was used to pay childcare fees for his eldest child, and $11,000 which was used to buy a car. He removed over $8,000 from Ms Carroll’s account as cash withdrawals, and paid some of it into a bank account operated by himself and his wife. As well, he obtained money from Ms Carroll’s accounts, via BPAY transactions and transfers from those accounts, to a total of just over $190,000. These included an amount of $3,480 transferred to the account of another victim, David Burns, in an attempt to conceal the removal of money from Mr Burns’ account. The first three charges arose from these transactions.
The second victim was Helena Curtin. Over six days in July 2014, Mr Reid removed just over $40,000 from her accounts via BPAY transactions and account transfers. $13,500 of that money was transferred to the account of another of the victims in an attempt to conceal losses that had been noticed by that victim. At the end of that six days, Mr Reid transferred $55,000 to Ms Curtin’s account from the account of another bank customer. For reasons that are not specified in the statement of facts, that other bank customer suffered no loss, so no charge arises from that particular transaction.
The third victim was David Burns. Using BPAY and account transfers, Mr Reid removed $4,686 from Mr Burns’ accounts in early March 2014.
The last two charges relate to Mr Reid’s actions in relation to the accounts of Margaret Walsh. In late June and early July 2014, Mr Reid transferred a total of $4,500 out of Ms Walsh’s account. On 4 July he made a $9,000 cash withdrawal from her account.
Some of the funds removed from various victims were used directly to pay expenses incurred by Mr Reid or his wife, such as childcare fees, strata management fees, property levies and rates for a property owned by the couple, repayments on a personal loan, phone bills, and car servicing and repairs. Most of the remaining funds were transferred into one or other of the bank accounts operated by Mr Reid and his wife. Much of that money was then used for utilities bills and other general living expenses, although it seems there was also a holiday in Bali around September 2013. Some of the funds found their way, either directly or via one of Mr Reid’s accounts, into an online gambling account he held with Bookmaker.com.au.
I have already mentioned several transfers of money between customers’ accounts intended to conceal losses, and there were other aspects of some transactions that were clearly intended to obstruct or at least delay detection of Mr Reid’s activities.
The offences came to light as a result of the observations of Ms Walsh. Several days after the second two transfers totalling $4,500 out of Ms Walsh’s accounts, she phoned the bank and spoke to Mr Reid about “strange unauthorised transactions” on her accounts. He gave her an explanation and then, within the next two hours, transferred to Ms Walsh’s accounts the $13,500 from Ms Curtin’s account that I have already mentioned. He then spoke to Ms Walsh again and told her that the problem had been resolved, saying words to the effect of “Please don’t mention anything to the staff about this. I would hate them to think the manager makes errors.” A week later, Ms Walsh contacted police and reported the unauthorised transactions and her suspicions about Mr Reid.
Within the next couple of weeks search warrants were executed and Mr Reid was dismissed by the bank. He had before that made various admissions to senior managers of the bank, saying that he had used the money for gambling and for building a car. Mr Reid claimed that “things had snowballed”, and that he had not done this before. In an interview with police, he said that his wife knew nothing about his thefts or fraudulent activities in the bank.
Mr Reid told police that he gambled “here and there”, but seemed at that point to be minimising the significance of his gambling. In particular, he claimed not to know his user name for his Bookmaker account, claiming not to have used it for “a very long time”; however an investigation of the Bookmaker account showed that after several months in which the account was not used, the account was re-activated in early March 2014, with bets, on horse, harness and greyhound racing, of around $100 each and up to $250 each race. Gradually the level of betting increased, and on 12 July 2014, shortly after Ms Walsh had queried the transactions on her account and just before she spoke to the police, Mr Reid placed over $58,000 worth of bets, including individual bets of $1,000 and up to $4,000 per race.
Overall, between 6 March 2012 and 7 November 2014 (a period of 32 months including the period of the current offences), Mr Reid placed 10,972 bets with a total of nearly $1.516 million and a total return of $1.3 million.
Pleas of guilty
Mr Reid pleaded guilty to the charges in the Magistrates Court on the fifth mention of this matter, and was committed to this Court for sentence. He has spent no time in custody in respect of these charges.
Reparation order
The Crown seeks a reparation order in favour of the bank’s insurance company, and in favour of the bank in respect of the excess it had to pay under its insurance policy. The total loss suffered as a result of Mr Reid’s offending is identified as $338,103.70, consisting of the $272,167.72 in customer losses and $73,907.70 being the cost of the bank’s investigations.
Evidence
As well as the statement of facts, the following material is in evidence before me:
(a)a table detailing each of the offences;
(b)victim impact statements from three of the victims (being Rosalyn Carroll, Helena Curtin and Margaret Walsh);
(c)a pre-sentence report dated 25 September 2015; and
(d)a letter from lawyers for Beyond Bank and Zurich Australian Insurance Limited, the bank’s insurers;
all of which were tendered by the Crown. As well, the defence tendered references from a friend of Mr Reid’s and from the parents of Mr Reid’s wife.
The prosecutor also handed up an extract from the ACT sentencing database and a table of cases that she said were comparable.
Mr Reid did not give evidence. This is a convenient point to record that the prosecution reminded me of the comments of Smart AJ in R v Qutami (2001) 127 A Crim R 369 at [58] and [59], with which Spigelman CJ agreed at [79], to the effect that limited weight should be given in a sentencing hearing to “self-serving untested statements made to experts” and tendered at the hearing on behalf of an offender who does not give evidence.
Objective seriousness
In considering the objective seriousness of these offences, I have had regard to the following matters.
First, the maximum penalty of 10 years imprisonment for these offences indicates that the offences are regarded as generally serious.
There are also a number of aggravating factors in this case.
First, Mr Reid was in a significant position of trust in relation to the victims, and seriously abused that trust. He was also in a position of authority in relation to his staff, and abused that authority by inducing staff members to breach operating requirements imposed by the bank, and by himself using the user names of other staff; whether or not this was intended, it could have had the effect of implicating affected staff members in his actions.
Mr Reid’s dealings with his staff indicate a degree of planning and premeditation. The fact that the offences took place over an extended period, and included offences committed in an attempt to cover up earlier offences, also suggested that Mr Reid’s behaviour was not impulsive. This was to some extent conceded by his counsel.
The Crown relied on R v Hawkins (1989) 45 A Crim R 430 which was a case involving ongoing fraudulent conduct by a solicitor, for the proposition that continued fraudulent offending is more serious than what the Court in that case referred to, at 435, as “a temporary ‘dipping into the till’”.
The case of R v Chaloner (1990) 49 A Crim R 370 (Chaloner) involved a bank manager who created a fictitious bank account through which he removed bank funds to a total of just over $122,000. The prosecutor compared that case with Stewart [1987] NSWCCA (2 September 1987), referred to in Chaloner, in which a bank officer took advantage of an actual bank customer, presumably by removing money from his account. Kirby P said in Chaloner at 375 that deceiving a real customer might aggravate an offence by comparison with an offence involving a fictitious customer. Where, as in this case, victim impact statements are available to the court, that aggravation is presumably largely accounted for by whatever weight is given to the impact on those real victims.
In this case, the victim impact statements reveal the impact of Mr Reid’s offences on several of his victims. It is notable that all those who made victim impact statements described impacts that were not mitigated by the fact that eventually they were reimbursed for the money taken by Mr Reid. The victims described a loss of trust in other people generally, and in financial institutions in particular; one victim described an ongoing concern about the safety of her retirement funds leading her to check her accounts online continually. The victims found it time-consuming and stressful to have to take part in the complex process of working with investigators to check their accounts and determine what money had been taken – one victim described feeling during this process as if she was the guilty one. One, apparently elderly, victim said that the money taken from her account had been set aside to pay for a holiday for her and her husband, but that the holiday, which had been delayed by the wait to be reimbursed for her loss, would not now happen because of the health problems of the victim and her husband.
Ms Carroll’s victim impact statement refers to herself and her family as “knowing and trusting” Mr Reid, but it is not clear to me whether this suggested a personal relationship as well as the professional relationship the family had with Mr Reid as the bank manager.
Counsel for Mr Reid said that, while Mr Reid accepted that some of the victims had suffered non-economic loss as a result of his offences, he regarded the claims of stress suffered by the victims as a result of the need to work through their bank transactions with investigators as far-fetched. Stress as a likely outcome of such a process strikes me as not far-fetched but almost inevitable. Furthermore, counsel did not seek to cross-examine the authors of any of the victim impact statements, saying that this was because he did not want to cause them further stress. However, it seems to me that if counsel’s aim was, in effect, to have those claims disregarded in the sentencing, he needed in the circumstances to go beyond a mere submission that they were far-fetched. The position might have been different if the relevant claims had on their face seemed far-fetched rather than almost inevitable. I accept that the claims of stress caused by the investigative processes have been established beyond reasonable doubt.
Counsel also noted that the money taken from Mr Reid’s victims has been repaid by the insurers, and said that this should be taken into account. Certainly, repayment would be a significant factor in sentencing if it had come at a cost to Mr Reid himself. However, at this stage there has been no attempt to repay any of the money, although counsel for Mr Reid said that his instructions were that, having regard to Mr Reid’s wife’s current salary and his $50,000 equity in a block of land that he is willing to sell, Mr Reid hopes to be able to repay the money over time. Counsel said that Mr Reid was willing “if necessary” to enter into a repayment schedule.
I cannot see, however, that Mr Reid should get the benefit of the fact that, so far, the community, through the bank’s insurance arrangements, has funded his offences rather than leaving the financial impact to be borne by the individual victims.
Counsel in submissions said that Mr Reid has accepted responsibility for his actions, regrets the whole incident and wishes it had never happened.
The pre-sentence report contained the following comments about Mr Reid’s attitude to the offences:
Mr Reid agreed with the Statement of Facts and accepted these as a true reflection of his actions. He described his behaviour as unethical and reprehensible and attributed his actions to a serious error in judgement. Despite this, the offender justified his offending citing problematic gambling as the primary motivator.
In terms of the impact of his offences, Mr Reid admitted his behaviour has impacted greatly on his life, and the lives of others, stating this included the betrayal of trust of his former employer and the loss of long term friendships. Mr Reid displayed a level of victim empathy, acknowledging that the victims of his offence[s] were numerous. According to Mr Reid during conversations with his legal representative he has made a number of offers to recompense the victims. However this information has not been substantiated.
While Mr Reid did make negative comments about his offending in that material I have just quoted, it is difficult to find anything in his description that can clearly be identified as evidence of remorse.
Counsel’s submissions about Mr Reid’s reasons for offending, which will be mentioned shortly, also raise questions in my mind about the sincerity of such remorse as has been expressed.
Finally in relation to the objective seriousness of this offence, counsel for Mr Reid put to me, in effect, that “size doesn’t matter” (his words were “size basically is irrelevant”). That is, he said, the amount of money taken was not an element of the offence (which is correct), and if the legislature thought the amount of money involved was relevant, it would have included an appropriate reference in the sentencing legislation (which suggests that counsel has overlooked s 33(1) of the Crimes (Sentencing) Act 2005 (ACT)). That provision is to the effect that, in deciding how an offender should be sentenced, the court must consider a range of matters to the extent that they are relevant and known to the court, including the nature and circumstances of the offence and any injury, loss or damage resulting from the offence. I have no doubt that those provisions permit, indeed require, me to take account of the amounts of money involved in these offences.
These offences are in my view of mid-range seriousness, with some variation arising from the amounts to which each offence relates.
Subjective circumstances
I have also had regard in this sentencing to Mr Reid’s subjective circumstances.
Mr Reid is now 30 years old. He has no criminal record.
I received character references from a friend of Mr Reid’s, and from his wife’s parents.
Mr Reid’s friend referred to Mr Reid having expressed remorse and shame for what he has done, and suggested that he now seems depressed. I place no reliance, however, on the friend’s comments either that the offences were the result of a gambling problem or that Mr Reid is getting help for that problem. I shall discuss the claim that these offences reflect a gambling problem shortly.
Mr Reid’s parents-in-law said that they felt that his offending was out of character, and that he recognises the damage he has done to others, to his family and to himself.
Mr Reid’s prior good character must be noted, but the significance of good character is of course reduced where, as here, it is an offender’s good character that has conferred on him the opportunity to commit the offences.
The Crown relied on the case of Phelan (1993) 66 A Crim R 446 at 448 for the proposition that prior good character is of less weight in relation to ongoing offending than where there is an isolated offence.
The pre-sentence report, which was prepared in September last year, provided the following background information about Mr Reid that was current when it was prepared:
Mr Reid reported being raised in a loving and stable family home with no significant events that impacted on his formative years. He described remaining in close, regular contact with both parents and his siblings.
Mr Reid informed he currently resides with his wife and their two young children in stable accommodation. He reported a secure relationship, however, stated that his wife had been unaware of his offending behaviour prior to his contact with police.
Mr Reid stated his wife is now fully aware of the extent of his offences and remains supportive. These sentiments were corroborated by Mr Reid’s wife.
Mr Reid has enjoyed fulltime employment since leaving school. He has been employed in the banking industry for 10 years. He is currently working in the car sales industry and has been for the past 12 months.
Mr Reid advised he commenced gambling in November 2012. He reported this quickly became problematic for him, stating his issues with gambling and its financial impact to be a contributing factor in his offending. Mr Reid reported his financial situation is currently stable however, this could be attributed to his partner closely managing their finances.
Mr Reid reported to have no problematic issues with either alcohol or illicit drugs. These statements were corroborated by his wife.
Mr Reid advised of a mental health diagnosis by his general practitioner in 2015. Although anti-depressant medication was prescribed, Mr Reid did not comply with the medication regime
And I interpolate that counsel did not claim during the sentencing hearing that the depression contributed to the offending behaviour.
Mr Reid stated he commenced counselling sessions with a clinical psychologist to assist him to manage stressors relating to his gambling and current legal matters. Whilst it is verified Mr Reid attended appointments on 17 April 2015 and 16 July 2015, he stated he is unable to continue due to his current financial situation. Mr Reid advised of his intention to pursue further counselling in relation to these matters.
In a couple of significant ways, Mr Reid’s circumstances have changed since the pre-sentence report was prepared. He is currently unemployed and has moved, with the rest of his family, to Darwin. Mr Reid’s wife is earning $100,000 per annum but she is pregnant again, with a child due in the middle of this year.
Counsel for Mr Reid pointed out that a prison term would impose hardship on his family, especially since as a result of his wife’s pregnancy he will need to be the breadwinner for some time after the birth of the baby. In Craft v Diebert [2004] ACTCA 15, Crispin P and Connolly J noted at [10] that:
All too often the need to adequately punish the offender and to deter other like-minded people from committing similar offences leaves little, if any, scope for leniency based upon the adverse effect of the sentence upon the offender’s children and/or other dependants. In that sense it might, perhaps, be said that this factor will have a significant impact upon sentencing for very serious offences only in exceptional cases. However, such an observation should not be misconstrued as a legal principle ...
In submissions, counsel for Mr Reid offered the following explanation for Mr Reid’s offences:
At the time of the alleged offence[s] the defendant was working for the bank. He was building a house. His wife was pregnant at the time and he was under some considerable financial pressure.
The defendant became scared in that he feared that he was unable to support his family. Now, because of that he defrauded the bank of the money. He freely admits that he defrauded the bank of money, ..., he is very remorseful about that. But he defrauded the bank of the money. He went to the horse races and he bet the money on the horses, and the reason he did that was in the hope of in effect doubling his money so that he could repay the money back to the bank, and then have money to support his family.
... as I understand most of it was out at the races and as I understand it, it’s the defendant’s intention, if he was successful at the races, to repay the money to the bank and cover up what he did and use the other money to support his family.
In later submissions, counsel noted that Mr Reid’s financial stress was caused by over-extending himself in terms of financial commitments, and that he had started gambling in November 2012 in the hope of overcoming the financial stresses. When the gambling was not successful, counsel said, Mr Reid starting taking money from bank customers, and stepped up his gambling in hope of addressing his increasing losses and the defalcations. Counsel suggested that over time Mr Reid had also become addicted to the gambling.
Counsel said that the offending was “essentially forced on” Mr Reid, who “really had no option in his mind but to go down this path”.
When pressed, counsel conceded that the financial circumstances that had forced Mr Reid into the gambling and offending were the house construction and his wife’s pregnancy, but he agreed that he was not suggesting that anyone who over-extends themselves financially is forced to steal money from other people.
The use of the word “forced” (which counsel conceded was his word rather than Mr Reid’s) did not however seem to me consistent with any particular remorse on Mr Reid’s part.
The most difficult aspect of this sentencing has been trying to make sense of the material before me in terms of establishing why these offences were committed, and in particular the significance of Mr Reid’s gambling.
In his dealings with the pre-sentence report author, Mr Reid appears to have cited problem gambling as the primary motivator of his actions. In contrast, as already noted, he seemed to be minimising the significance of gambling when he initially spoke to police and bank officials; counsel’s submissions also seemed to suggest that the gambling was a considered response to financial pressures, rather than an irrational response to some kind of compulsion or psychological need.
I have already noted the pre-sentence report author’s verification that Mr Reid attended two appointments with a psychologist in the months before his guilty plea. Counsel for Mr Reid made an unverified (and probably by definition unverifiable) claim that Mr Reid has been contacting Gamblers Anonymous for phone support, although he did not say when that started.
Apart from that, there is nothing before me that gives any support to the proposition that some kind of gambling addiction created a financial problem that Mr Reid addressed by removing money from customer’s bank accounts, as distinct from the possibility that his removal of money from customers’ accounts was initially to fund a lifestyle not supportable by the legitimate earnings of Mr Reid and his wife, that this in turn ultimately lead him into heavy gambling in the hope of repaying the money he had taken, with the gambling possibly becoming addictive at some point (the latter appears to be the theme of counsel’s submissions).
In particular, I note the indication in the agreed statement of facts that Mr Reid’s gambling account was barely used during the period between December 2013 and March 2014, during which period he took roughly $30,000 from customers’ accounts. Of course, it is possible that Mr Reid had other gambling accounts not identified to police, but if so, evidence of these would presumably have been tendered on his behalf in support of the gambling addiction claim, if indeed, that really is the claim.
Counsel for Mr Reid made the curious submission that there was no evidence to support the Crown’s submission that Mr Reid didn’t have a gambling problem, and that if Mr Reid’s claims to that effect were not accepted, the pre-sentence report author should have challenged them, or the Crown should have brought evidence in support of its submission.
Counsel’s submissions seem to be based on a misunderstanding of the significance of s 4(2) of the Evidence Act 2011 (ACT), which provides in general terms that in a sentencing proceeding, the Evidence Act only applies to the extent directed by the court. This means that, generally, the strict rules of evidence as to admissibility and forms of proof are not applied in sentencing proceedings. However, this does not as I understand it exclude the basic proposition relating to the burden of proof in sentencing proceedings that was affirmed in R v Olbrich (1999) 199 CLR 270 at 281; [27] that a sentencing judge:
may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities. (citation omitted)
In this case, it was for Mr Reid to establish the gambling addiction on the balance of probabilities if he wanted me to take it into account – there is no general requirement on the Crown to show that a person who has taken money to which he is not entitled has not done it under the influence of a gambling addiction.
In summary, there is little evidence to support the claim that before his offending came to light, Mr Reid had developed a gambling addiction; the dramatic ramping up of his gambling in the last few months before he was discovered might support such a claim in respect of those last few months, or might just have indicated increasing desperation as Mr Reid continued to take money from his customers with ever fewer prospects of being able to repay it before his offending was discovered. There is no evidence that it was a gambling addiction that started Mr Reid on the path of removing money from his customers’ accounts.
I note also, however, that the Crown says (relying on R v Huang (2007) 174 A Crim R 370 at [42]; R v West [2015] ACTSC 134 (West) at [62]-[63]) that a gambling addiction, even if it were accepted as the cause of Mr Reid’s offences, is not a mitigating factor except in rare cases. There has been no suggestion that this is an unusual case in any sense that would render Mr Reid’s gambling a mitigating factor.
Rehabilitation
As to Mr Reid’s rehabilitation prospects, I have already mentioned that he told the pre‑sentence report author that he cannot afford further psychological help due to his current financial situation. However, the counselling sessions he has attended are described as aimed at helping him “to manage stressors relating to his gambling and current legal matters”, rather than to treat any gambling addiction as such, and as I read the pre-sentence report, this is the kind of counselling that he intends to pursue, subject to finances. The description of the counselling might only reflect the pre‑sentence report author’s failure to realise that addressing the consequences of his gambling is different from addressing the cause of it, but as things stand there is no evidence before me that Mr Reid has any particular plans to overcome any gambling addiction as such.
Other sentencing considerations
I turn to other more general sentencing considerations.
I have already addressed a number of what seem to me to be ill-advised submissions by counsel for Mr Reid, but I note here that counsel also made an argument:
(a)that the purpose of sentencing was to protect the community;
(b)that the pre-sentence report author said that Mr Reid was at low risk of re-offending; and
(c)that therefore there was no need and no justification for imposing a custodial sentence.
Counsel seems to have overlooked the other sentencing purposes set out in s 7 of the Crimes (Sentencing) Act. That section does refer to community protection, but it also includes in the purposes of sentencing adequate punishment; general and specific deterrence; promoting the offender’s rehabilitation; holding the offender to account; denouncing the offender’s conduct; and recognising the harm done to the victim and the community.
For offences like these that involve planning and calculated actions rather than any brief lapse of control or judgment, general deterrence is always a significant feature. I am willing to accept that Mr Reid may not require any substantial personal deterrence, even having regard to the fact that he only stopped offending as a result of the offences coming to light, and that as I have already noted his expressions of remorse appear limited.
Mr Reid’s pleas of guilty came relatively early and, importantly, before the matter was committed to this court. The prosecutor has conceded that Mr Reid’s guilty pleas have utilitarian value, as also did his admissions about aspects of the offending.
Counsel for Mr Reid said that his instructions were that the Crown case was not overwhelming, but the grounds on which Mr Reid gave such instructions are not clear (apart from anything else, the strength of the Crown case might seem to be a matter on which legal advice might be useful to a person unfamiliar with the criminal justice system and the laws of evidence). My assessment is that the Crown case is strong, but I accept that it would have made for a difficult and time-consuming trial. Both the pleas of guilty and the admissions will be recognised with a total sentencing discount in the order of 25%.
Comparable cases
The prosecutor submits that, in relation to offences of this kind, a custodial sentence is normally required, relying on the case of Chaloner that I have already mentioned. In fact Chaloner was a case in which the court concluded that such a sentence was not required in the circumstances of that case. It is worth mentioning that the factors mentioned in reaching this conclusion included that Mr Chaloner’s family had been facing a variety of health problems, both physical and psychological, that he was himself suffering stress and burnout, and that his financial difficulties included the fact that he was trying to pay off a loan from a bank other than his employer, a loan of which his employer would have disapproved. Mr Chaloner had acted on impulse, felt ashamed of what he had done, co-operated fully with police, had already, by the time he was sentenced, repaid a substantial part of the money from his superannuation and long service leave entitlements, and said that he intended to repay the whole amount.
The Crown also mentioned the ACT case of R v Tucker (2010) ACTSC, Refshauge J, 30 August 2010 (Tucker), in which Refshauge J noted that crimes involving fraudulent abuse of trust often produced long head sentences but relatively low non-parole periods, especially where there were a limited criminal history, good prospects of rehabilitation and a low risk of re-offending. All these factors are present to some degree in this case.
The prosecutor provided a table of sentences in what she saw as generally comparable cases, including Tucker, as well as the cases of West; R v Diamond [2015] ACTSC 60; R v Foley [2001] ACTSC 109 (Foley); R v Dibley [2009] ACTSC, Burns J, 16 September 2013 (Dibley); R v Berry [2012] ACTSC, Burns J, 2 October 2012 (Berry); R v Wheeler [2013] ACTSC, Higgins CJ, 22 February 2013 (Wheeler); R v Cousins [2012] ACTSC, Higgins CJ, 26 March 2012 (Cousins); and R v Close [2013] ACTSC, Higgins CJ, 12 August, 2013 (Close).
West, Diamond, Foley, Dibley, Berry and Tucker all involved smaller amounts than that taken by Mr Reid, and four of those offenders were required to serve periods of full-time custody or periodic detention. Tucker, a 2009 case, involved a total amount of just over $58,000. Mr Tucker had had a difficult childhood and youth, and he used the money initially in the hope of repairing his troubled marriage. He had abused amphetamines at certain points, and was diagnosed with anxiety and a major depressive disorder which was said to have possibly affected his judgment. He had shown some remorse. Mr Tucker was sentenced to a total of 18 months imprisonment, with six months to be served in full-time custody.
The last three of the cases mentioned by the Crown, being Wheeler, Cousins and Close, involved amounts considerably larger than the amount in this case, the lowest of those amounts, in Wheeler, being nearly $520,000. All of those offenders were required to serve at least 12 months of their sentences in full-time custody. Mr Wheeler, whom the Chief Justice accepted as having a gambling addiction was sentenced to five years imprisonment, of which 12 months was served full-time and another six months as periodic detention.
Defence counsel submitted that suspended sentences and good behaviour orders, with or without a community service order, would be an appropriate sentence. In support of his submission he drew my attention to the ACT cases of R v Riordan [2015] ACTSC 26 (Riordan); R v Gibbs [2013] ACTSC 293 (Gibbs); R v CK [2014] ACTSC 188 (CK), where a deferred sentence was imposed; and R v Wsol [2015] ACTSC 112 at [27]; [28] (Wsol).
Riordan involved two charges arising from the dishonest taking of money from the offender’s employer. The offences involved a total of nearly $53,000, which was taken in several transactions over a period of about eight months. The offender had a troubled childhood involving physical and sexual abuse and then entered an abusive adult relationship. She had several children, including one who seemed to be an illicit drug user who was often in trouble with police and also had financial problems.
Ms Riordan had had contact with mental health services over a number of years, although there was no diagnosable mental health condition present at the time of sentencing. The money taken had been used to help her son with his debts and to try to improve the quality of life of her family. The sentencing Judge said that there was nothing indicating that she had made any luxury purchases or otherwise pursued personal enrichment. She was sentenced to imprisonment for 21 months, which was fully suspended subject to a good behaviour order and 300 hours community service.
The cases of Gibbs, CK and Wsol concerned offences constituted by the use of stolen credit cards, and involved amounts respectively of $1,400, $1,200 and $3,200. All three offenders had compelling personal circumstances involving such things as dysfunctional family backgrounds, childhood sexual abuse, substance abuse, and mental health problems over many years.
In my view, only Ms Riordan’s case is any way comparable to Mr Reid’s case, and it too is distinguishable to the extent that it involved a considerably smaller amount of money, a less offensive abuse of her position of trust, and an explanation for her offending arising from her personal circumstances that clearly engaged the sympathy of the sentencing Judge. None of the other three cases mentioned by counsel for Mr Reid involved any breach of a position of trust or authority, and all involved vastly smaller amounts of money; having regard also to the personal circumstances of the various offenders, I conclude that none of those three cases is properly comparable with the current matter.
The ACT sentencing database statistics provided by the prosecutor indicated that of all the 260 examples of the relevant offence recorded on the database, involving apparently 260 different offenders, 9% of offenders received only a good behaviour order, 2% received fully suspended prison sentences, 43% received partly suspended prison terms, and 45% received prison terms, presumably with non-parole periods.
I have not found anything in Mr Reid’s case that would distinguish it from the nearly 90% of cases in which offenders convicted of these kinds of offences are expected to serve some of a term of imprisonment. There will be a requirement of custodial time, although I propose to suspend the sentence in due course rather than to set a non-parole period.
Transferability of sentence
I note in this context that counsel for Mr Reid, on instructions, asked that I order that any community service order could be served in the Northern Territory where Mr Reid is now living. There was no information put before me about whether supervision or a community service order could be transferred to the Northern Territory, and this is not a matter within my knowledge. As also discussed, it is not within my knowledge whether a prison sentence imposed in this Territory could be served under transfer in the Northern Territory.
Sentence
Mr Reid, please stand. I record convictions on seven charges of dishonestly obtaining property by deception.
Under s 19 of the Crimes (Sentencing) Act, I order:
(a)that you pay $50,000 to Beyond Bank; and
(b)that you pay $288,103.70 to Zurich Australian Insurance Limited.
Those orders total the amount of $338,103.70 explained earlier.
Your solicitor will explain to you that those payments are to be made into court, not directly to the named recipients.
I now sentence you to imprisonment as follows:
(a)on CC15/7555, involving an amount of $14,200 – to 12 months imprisonment, reduced from 16 months for your plea of guilty, and to start today, 4 February 2016;
(b)on CC15/7556, involving an amount of $8,240 – to 12 months imprisonment, with the same plea of guilty reduction and to be served concurrently with the first sentence;
(c)on CC15/7557, involving an amount of just over $190,000.00 – to 18 months imprisonment, reduced from 24 months, also to start to run today, 4 February;
so that those three offences involving Ms Carroll’s account provide a total of 18 months imprisonment;
(d)on CC15/7558, involving an amount of $40,929 – to 15 months imprisonment reduced from 20 months and accumulated so as to add 8 months to the total sentence, bringing that to 26 months imprisonment;
(e)on CC15/7559, involving an amount of $4,686 – to 12 months imprisonment, reduced from 16 months and accumulated so as to add a further 6 months to the total;
(f)on CC15/7560, involving an amount of $9,000 – to 12 months imprisonment reduced from 16 months, and to add a further 6 months to the total term of imprisonment; and
(g)on CC15/7561, involving $4,500, the second offence from the same account holder – to 12 months imprisonment reduced from 16 months, to run concurrently with the sentence on CC15/7560.
That gives a total sentence of 38 months (3 years 2 months) imprisonment which will run from 4 February 2016 until 3 April 2019.
I require you to serve eight months in full-time custody, after which the sentence will be suspended, and I order that when you are released, you sign an undertaking to comply with your good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for three years.
The good behaviour order is subject to the conditions:
(a)that you give security in the amount of $5,000 for your compliance with this good behaviour order (that doesn’t require a cash security, I should point out);
(b)that for such period not exceeding three years as Corrective Services considers necessary, you accept the supervision of ACT Corrective Services and obey all reasonable directions of the Director-General or delegate; and
(c)that you undertake such counselling, courses, programs or treatments as directed by your supervising officer.
You will in due course be given a written copy of the good behaviour order and it will be read to you by Corrections officials. In short, it means that for three years after you are released, you need to keep out of trouble, keep in such contact with Corrective Services as your supervisor requires, and comply with your supervisor’s directions. If you commit another offence during that time, or if you otherwise breach your undertaking, you may find yourself back before this Court to be re-sentenced for these offences, as well as possibly losing your $5,000 and, depending on exactly how you have breached the undertaking, you could well find yourself serving some or all of the remaining part of your sentence in further full-time custody.
As already indicated, I have no information about whether supervision under an ACT good behaviour order can be transferred to the Northern Territory; this is a matter you will need to take up with the Corrections authorities at an appropriate time.
If you have any particular questions about the orders I have just made, please ask the court officials or your lawyer.
You may sit down.
| I certify that the preceding ninety-seven [97] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: D Hoitink Date: 18 February 2016 |
8
10
4