R v Riordan - [2015] ACTSC 26

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Kennedy
Citation:	[2021] ACTSC 80
Hearing Date:	28 April 2021
Decision Date:	28 April 2021
Before:	Mossop J
Decision:	See [41]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – theft – money dishonestly appropriated from employer – rolled up count – offending conduct took place over protracted period – prior
offence of a similar kind – breach of employer’s trust – general and specific deterrence – custodial sentence imposed –
reparation order made
Legislation Cited:	Criminal Code 2002 (ACT), s 308 Crimes (Sentence Administration) Act 2005 (ACT) Crimes (Sentencing) Act 2005 (ACT), ss 19, 53(3)
Cases Cited:	Johnston v R [2017] NSWCCA 53 R v Jones [2004] VSCA 68 R v QU [2019] ACTSC 155 R v Riordan [2015] ACTSC 26
Parties:	The Queen (Crown) Scott Kennedy (Offender)
Representation:	Counsel
M Dyason (Crown) E Chen (Offender)
Solicitors
ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Number:	SCC 1 of 2021
MOSSOP J:
Introduction

1. The offender, Scott Kennedy, has pleaded guilty to theft contrary to s 308 of the Criminal
Code 2002 (ACT). The maximum penalty for the offence is 10 years’ imprisonment, a
fine of $150,000 or both. The charge involves a rolled up count involving 217 fraudulent transactions resulting in a total of $57,766.34 being dishonestly appropriated from the
offender’s employer. The nature and effect of rolled up counts is discussed in R v Jones
[2004] VSCA 68 at [13]; Johnston v R [2017] NSWCCA 53 at [68]-[70].

Facts
2.	The facts are agreed and are, in summary, as follows.
3.	The offender was an employee of CEX Pty Ltd (CEX). He commenced working at CEX on 11 March 2017. CEX operates an international chain of stores selling second-hand electronics. The offender was the store manager of the Gungahlin branch.
4.	The CEX Gungahlin branch operated an EFTPOS machine. For a refund to be processed by a CEX employee, two personal identification numbers (PINs) had to be entered into the machine. Only the store manager had access to the first PIN. The second was entered by the refund recipient.
5.	The offender was at the time the sole account holder of a Commonwealth Bank account which he held in his own name.
6.	From 3 March 2018 to 18 July 2018, the offender used the EFTPOS machine to process refund transactions to his Commonwealth Bank account on 217 occasions. The total value of the refund transactions was $57,766.34.
7.	Each individual refund transaction ranged in value from $50 to $600. Multiple refund transactions were sometimes made on a single day.
8.	The refund transactions came to attention of CEX management on 17 July 2018 when the director of CEX Australia was notified by the accounts department that the
settlements were “off” and that a huge discrepancy had been identified between the
money that was declared at the Gungahlin CEX store and the money that was banked.
9.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Riordan

Details

AGLC: R v Riordan [2015] ACTSC 26
Case: [2015] ACTSC 26
Decision Date: 28 April 2021

CaseChat Overview and Summary

The case of R v Riordan involved the respondent, Riordan, who was convicted of theft. The dispute centred around money that Riordan dishonestly appropriated from his employer over a protracted period. The matter was heard in the relevant criminal court. The central legal issues were whether the acts of theft should be considered as a single continuous offence or as multiple discrete offences, and how this would affect the appropriate sentence. The court also had to consider the applicability of prior similar offences to the sentencing process.

The court examined the nature of the thefts, noting that they occurred over a significant period, which suggested a pattern of dishonest conduct. The court found that the acts should be considered as part of a single continuous offence, despite the temporal separation of individual instances. This conclusion was based on the fact that the offending conduct was part of a single dishonest scheme aimed at appropriating funds from the employer. The court also considered the principle of rolled-up counts in sentencing, which allows for the cumulative consideration of multiple offences to ensure a just outcome. The prior similar offences were relevant in assessing the respondent's culpability and the need for deterrence.

In its reasoning, the court applied established principles of criminal law to determine the appropriate sentence. The court held that the offences should be treated as a single continuous offence for sentencing purposes. The cumulative effect of the thefts, along with the respondent's prior offending, warranted a sentence that reflected both the gravity of the offences and the need for general and specific deterrence. The final orders of the court included the imposition of a sentence that took into account the total amount dishonestly appropriated, the duration of the offending conduct, and the respondent's criminal history.

Orders

Orders of the court

See [41]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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