R v Russell aka Hugill
[2015] ACTSC 360
•30 October 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Russell aka Hugill |
Citation: | [2015] ACTSC 360 |
Hearing Date(s): | 28 July, 12 October 2015 |
DecisionDate: | 30 October 2015 |
Before: | Burns J |
Decision: | See [51]-[61] |
Catchwords: | CRIMINAL LAW – JURISIDCTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – misuse of a Commonwealth credit card – dishonestly obtaining a gain – dishonestly causing a loss – obtaining a financial advantage by deception – knowingly using a false document to dishonestly obtain a gain. |
Legislation Cited: | Crimes Act 1914 (Cth) s 4K Crimes (Sentencing) Act 2005 (ACT) |
Parties: | The Queen (Crown) Michelle Victoria Russell aka Hugill (Offender) |
Representation: | Counsel Ms N Case (Crown) Ms Hayunga (Offender) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) Legal Aid ACT(Offender) | |
File Number(s): | SCC 137 of 2015 |
BURNS J:
Background
Michelle Russell, you appear before me today to be sentenced with respect to a number of both Commonwealth and Territory offences, and for a breach of a Good Behaviour Order. There are three offences with respect to the misuse of a Commonwealth Credit card, contrary to s 60 (1) of the Financial Management and Accountability Act 1997 (Cth) (CC2014/41018; CC2014/41019; CC2014/41020). The offence dates for those offences range from 21 May 2012 to 25 July 2012. The maximum penalty for each such offence is imprisonment for seven years or a fine of $46,200.00.
You also appear before me for sentence, with respect to four offences of dishonestly obtaining a gain, contrary to s 135.1 (1) of the Criminal Code 1995 (Cth) (CC2014/41905; CC2014/41917; CC2015/40068; CC2015/40069). The offences range from 5 May 2012 to 3 August 2012. The maximum penalty for each of those offences is imprisonment for five years or a fine of $33,000.00.
You also appear before me for sentence with respect to one offence of dishonestly causing a loss, contrary to s 135.1 (3) of the Criminal Code 1995 (Cth) (CC14/41906). That offence occurred between 5 May 2012 and 11 August 2012. The maximum penalty for that offence is also imprisonment for five years or a fine of $33,000.00 or both.
You also appear for sentence with respect to one offence of obtaining a financial advantage, contrary to s 135.2 (1) of the Criminal Code 1995 (Cth) (CC2014/41946). That offence occurred between 15 February 2011 and 10 September 2012. The maximum penalty for that offence is imprisonment for 12 months or a fine of $6,600.00.
You also appear before me with respect to a Territory offence of dishonestly obtaining a financial advantage, contrary to s 332 of the Criminal Code 2002 (ACT) (CC2013/6928). That offence was committed on 31 October 2012. The maximum penalty for that offence is 10 years’ imprisonment.
The second Territory offence is a charge of knowingly using a false document to dishonestly obtain a gain, contrary to s 347 of the Criminal Code 2002 (ACT) (CC2013/6929). That offence was committed on 31 October 2012. The maximum penalty for that offence is also imprisonment for 10 years.
In addition, you have breached a Good Behaviour Order imposed upon suspension of a period of three months’ imprisonment from 14 October 2011 for the offence of making a false document (CC2011/41120), which was imposed in the Magistrates Court. The breach is by way of further offending by the commission of the offence of obtaining financial advantage by deception (CC2013/6928).
The Territory offences were first before the ACT Magistrates Court on 5 November 2013. You originally entered pleas of not guilty in relation to the Territory offences on 25 November that year. The Territory offences were set down for hearing on 18 July 2014, however, you changed your plea on the day of the hearing. Following the addition of the Commonwealth offences from 22 January 2015, all matters subsequently travelled together and were committed to this Court for sentence on 5 June this year, after pleas of guilty were entered to the Commonwealth offences.
I note with respect to sentencing for the Commonwealth offences s 4K (4) of the Crimes Act 1914 (Cth), which permits me to impose one penalty in respect of charges against the same provision of the law of the Commonwealth founded on the same facts, or form, or are part of a series of offences of the same or similar character. The penalty is not to exceed the sum of the maximum penalties that could be imposed if a separate penalty were imposed in respect of each offence.
I adopt and apply, as appropriate, the sentencing principles found in the Crimes Act 1914 (Cth) with respect to the Commonwealth offences, and the Crimes (Sentencing) Act 2005 (ACT) with respect to the Territory offences.
Categorisation of offences
Five separate circumstances of offending appear in the charges before the Court. The first is constituted by the Commonwealth offences committed while you were employed by the Department of Human Services from March 2012 to July 2012 (CC2014/41905; CC2014/41906; CC2014/41018; CC2014/41019; CC2014/41020).
The second is a Commonwealth offence committed by you to obtain Centrelink benefits to which you were not entitled from July 2011 to September 2012 (CC2014/41946).
The third category of offence is constituted by the Commonwealth offences committed while you were employed by the Department of Families, Housing Community Services and Indigenous Affairs, otherwise referred to as FaHCSIA, from July 2012 to October 2012 (CC2015/40068; CC2014/40069).
The fourth category of offences is constituted by the Territory offences committed in relation to the lodgement of a false bond form on 31 October 2012 (CC2013/6928; CC2013/6929).
I have already referred to the fifth category, which is the breach of the Good Behaviour Order.
The misuse of a Commonwealth credit card
The offences which you committed whilst you were employed by the Department of Human Services (DHS) involved you committing offences while you were employed on a contractual basis as an executive assistant with the department for a period of four months from 13 March 2012 to 27 July 2012.
You were issued with a Commonwealth credit card during the course of your employment. As part of your employment, you were entrusted with financial delegations and a work credit card. You were trained in your responsibilities and duties. In addition to those responsibilities, you were given access to your supervisor’s email and calendar.
Within the four months of your employment, you engaged in highly deceitful conduct which exploited the trust of your employer. This conduct was calculated and took full advantage of the opportunity offered by the trust placed in you by your employer, such as misusing your corporate credit card for unauthorised personal transactions, totalling $6,573.22. The personal transactions included luxury goods, theatre tickets, restaurants and holiday activities. You also deceived your employer to pay for travel expenses, flights and accommodation for a trip to the Gold Coast while on personal leave, because you falsely claimed to have suffered a still birth. The total cost of these expenses was $5,596.59.
In the course of that trip, you made a telephone call to your supervisor to inform him that you had delivered the stillborn baby and required further leave in Sydney to recover. Later that day you used your corporate credit card to pay for a skydiving activity and also attended a restaurant at Broadbeach that evening.
You also hired, at your employer’s expense, a vehicle to travel from Melbourne to Canberra which was approved for three days. You then illegitimately retained the use of that vehicle for a further four months. The value of that use was $5,385.76, which was charged to the Department. You also provided a false medical certificate to claim leave to the value of $1,389.48.
I accept the Crown’s submission that the objective of this conduct was personal greed. I also accept their submission that you acted in a manner to exploit the trust of your employer which had been placed in you in order to achieve your own personal gain.
The offences were deliberate and planned and showed a significant level of deception. The resulting cost of the fraud committed during your employment with the Department was $19,460.55.
The overpayment of Centrelink benefits
You committed this offence by declaring to the DHS, commonly referred to by the agency name of Centrelink, that you were not receiving income whilst in receipt of parenting payments. That declaration was false. On 21 June 2011, you contacted Centrelink and informed them that your employment had ceased. The result of this false declaration was that you received the full parenting payment benefit each fortnight. However, at the time, you were in receipt of income from employment from General Practice Education and Training Limited and you were in receipt of $2,790.38 income for that fortnight. You continued to earn fortnightly income of approximately $1,500.00 to $2,500.00 per fortnight from that employer and others for another 15 months.
During that period you were overpaid approximately $650.00 in fortnightly benefits you were not entitled to, generating an income of at times more than $3,000.00 a fortnight. During the period of this offence you earned a total of $70,792.67. However, you declared no employment and no earnings. This resulted in a total over-payment of $17,984.32.
Offences at FaHCSIA
You were employed on a contractual basis as an executive assistant with FaHCSIA for a period of two months from 23 July 2012 to 11 October 2012. Within that short period of employment, you engaged in deceitful conduct which, akin to your former conduct whilst employed with DHS, exploited the trust your employer placed in you.
You fabricated circumstances to create opportunities to exploit your employer for personal gain on two separate occasions. When questioned about your conduct, after your first successful exploitation of your manager’s trust, you transferred to another part of the same department and engaged in an attempt to replicate the same fraud.
Your conduct showed a development in the sophistication of your pattern of fraudulent activity and I accept that these offences were planned and showed a degree of sophistication. I accept that your motivation for this offending was also personal greed.
False claim for the return of a bond
In 2012, you and your husband were tenants of a leased residential property. On 31 October 2012, you attended the ACT Office of Regulatory Services and lodged a refund of bond form seeking the return of your rental bond of $2,200.00.
The claim was processed and the $2,200.00 was paid to you. The refund of bond form purported to include the signatures of the landlords, however, the landlords had not authorised the return of the rental bond to you and their signatures were fraudulently placed on the document by yourself.
Breach of Good Behaviour Order
The original sentence imposed was one of three months’ imprisonment for an offence of falsification of medical certificates by you and in the employment context involving your husband. The commission of these further offences means that you are in breach of the suspended sentence with the Good Behaviour Order that was imposed at that time.
Consideration
I note that you have a criminal history. On 14 October 2011, you were convicted of an offence in the Magistrates Court of making a false document. You were sentenced to three months’ imprisonment which was suspended for a period of two years with a Good Behaviour Order. This is the sentence which you have breached by committing these offences. It is an aggravating circumstance, of course, with respect to the present offences that you were on conditional liberty for similar types of offending at the time that you committed the present offences.
On 8 November 2013, you were convicted again in the Magistrates Court of offences of theft and obtaining property by deception. I note that those offences occurred in 2011 and therefore occurred before the present offences. You were sentenced to an aggregate term of 10 months’ imprisonment from 10 December 2014 to 9 October 2015 which was to be served by way of periodic detention for the first five months and the balance was then suspended. I note that your periodic detention order was subsequently cancelled resulting in you serving five months’ imprisonment from 20 January this year to 19 June this year.
I will now turn to your subjective features. I take into account the contents of the pre-sentence reports that have been placed before me. You are currently 41 years old and until recent times you had a history of failing to comply with community-based orders, although your compliance with supervision has improved since you were released from custody in June this year. I note that you are an only child and, as such, you have no siblings.
You said that your mother had mental health problems which made your early life difficult. You told the author of the Pre Sentence Report that you have five children from two relationships. The three older children live with their father. The two youngest live with you and your partner.
Since June this year, after having been released from custody, the author of the Report has indicated that you have undertaken interventions to address financial, alcohol and drug issues and also mental health issues which have been identified by Corrective Services.
I note that at the present time you are living with your family in supported accommodation and this appears to be a stable arrangement. The author of the Report assessed you as being at medium risk of reoffending. I note that you were found suitable for community service and also periodic detention.
I have also had the benefit of a CADAS assessment dated 24 July this year. I note that in that report you told the author that you had been sexually abused as a child. This was not referred to in the earlier pre-sentence reports but I note that the history was not challenged by the Crown in the course of cross-examination of you, so I will proceed on the basis that what you said to the author of the CADAS report is accurate. There are reports of sexual abuse when you were a five year old, a sexual assault when you were 16 years of age and also a sexual assault that took place just prior to the Territory offences. I will come back to the last of those matters shortly.
The CADAS report notes that you have a history of problematic poly-drug use, primarily alcohol and prescription medication related to incidents of trauma, primarily sexual abuse, as I understand it. There was also a history of post-natal depression referred to in the CADAS report. The author noted that you had expressed remorse for your participation in these offences.
At the time the CADAS report was prepared, you had been assessed for an eight-week Arcadia House program, being a day program addressing drug and alcohol problems. It was the opinion of the author of the assessment that you required support to maintain your progress in treatment.
I note that this matter initially came before me on 28 July this year, at which time I adjourned the matter and granted you bail until 12 October to allow you to complete the Arcadia House program. A condition of your bail was that you were to surrender yourself to this Court if you left the program before 28 September this year.
I have a further report from ACT Corrections, dated 7 October this year, which refers to you claiming to Corrective Services during the period of your supervision after 28 July that you were participating in the Arcadia House program. The report notes that on 23 September 2015 you also claimed that you would be graduating from the program as scheduled on 25 September. In fact, Arcadia House staff reported to Corrective Services that your attendance had been unsatisfactory throughout the program and that you had failed to participate to an acceptable level. On 9 September, this year, you restarted the Arcadia House day program but your attendance and participation continued to be poor.
On 29 September, after consultation with Arcadia House and also Corrective Services, you entered the Arcadia House Transitions Residential Program but you discharged yourself against advice the following day.
I also note that I have two reports from a psychiatrist, Dr Anthony Baker. The first report is dated 3 September 2013 and the second is dated 2 December 2014. In the first report, Dr Baker diagnoses you as suffering from agoraphobia, generalised anxiety disorder and substance use disorder. He recommended therapy, such as cognitive behavioural therapy and drug and alcohol counselling.
The second report was prepared for use with respect to the current Territory offences. He notes that you alleged sexual assault occurring days before the Territory offences. There is some support for your allegation that you had been sexually assaulted at that time from Canberra Hospital records. As such, I will proceed on the basis that you were sexually assaulted as you complained in your consultation with Dr Baker. His diagnosis at that time was a generalised anxiety disorder, post-traumatic stress disorder and substance use disorder. He recommended treatment in essentially the same manner that he had earlier recommended. He also expressed the opinion that your ability to think clearly at the time of those offences was impaired, as was your ability to exercise appropriate judgment.
I am satisfied that the offences which you committed whilst you were at DHS and also at FaHCSIA involved a significant breach of trust which was reposed in you by your employer. Those offences, and indeed all of the offences, reveal significant dishonesty over a considerable period of time. Many of the offences also involve a degree of sophistication.
The total loss to the Commonwealth with respect to the offences has been some $38,254.08. Of that only $849.70 has been recovered by way of withholdings from Centrelink payments. There is no real prospect, I am satisfied, of you being able to make any repayment of the balance at the present time.
I take into account in sentencing your pleas of guilty. I note that they were early pleas with respect to the Commonwealth matters and I will reduce by approximately 25 percent the sentences that I would otherwise have imposed in order to reflect your pleas of guilty to those offences. Your pleas with respect to the Territory matters were not as early but I will nevertheless reduce by 20 percent the sentences that I would otherwise have imposed. I accept that your pleas reveal a degree of contrition and also have a significant utilitarian value. They also demonstrate a willingness, on your part, to facilitate the course of justice.
Sentencing with respect to offences of this kind requires me to give very careful consideration to the requirements of deterrence. In my opinion, both specific and general deterrence are important considerations with respect to these sentences.
Your prospects for rehabilitation at the present time must be seen as guarded, particularly in light of your failure to fully cooperate with Corrections and to participate in programs regarding drug and alcohol abuse.
In my opinion, sentences of imprisonment are warranted with respect to these offences. The question is whether they should be served by way of full time imprisonment or whether something less than full time imprisonment will be sufficient. With a degree of reluctance and uncertainty I have determined that I will impose sentences to be served by way of periodic detention and also suspended sentences.
Sentence
With respect to the three offences of misuse of a Commonwealth credit card (CC2014/41018; CC2014/41019; CC2014/41020), I record convictions and I will impose a single penalty by virtue of s 4K of the Crimes Act, 1914 (Cth). You will be sentenced to 13 months’ imprisonment commencing on today, 30 October 2015, and expiring on 29 November 2016, of which the period commencing today and expiring on 29 January 2016 is to be served by way of periodic detention. The first detention period with respect to that sentence will commence next Friday, 6 November 2015. The balance of the sentence is suspended and there will be a recognisance self in the sum of $500.00 to be of good behaviour for a period of two years with conditions:
(a)first, that you are to accept the supervision of ACT Corrective Services for that period of two years or such lesser period as deemed appropriate by your supervising officer, and you are to obey all reasonable directions of officers of ACT Corrective Services; and
(b)secondly, you are to undertake such assessments, counselling or treatment for alcohol and drug abuse and also mental health issues.
With respect to the four offences of dishonestly obtaining a gain (CC2014/41905; CC2014/41917; CC2015/40068; CC2015/40069), on each matter you are convicted and, again, I will impose a single penalty by virtue of s 4K of the Crimes Act1914 (Cth). You are sentenced to eight months’ imprisonment, commencing on 30 January 2016 and expiring on 29 September 2016, of which the period commencing on 30 January 2016 and expiring on 29 April 2016 is to be served by way of periodic detention. The balance of the sentence will be suspended and you will be obliged to enter into recognisance self in the sum of $500.00, to be of good behaviour for a period of two years, commencing on 30 January 2016 with conditions of the same nature to those which I have imposed on the previous recognisance.
With respect to the one offence of dishonestly causing a loss (CC2014/41906), you are convicted and sentenced to eight months’ imprisonment commencing on 30 March 2016 and expiring on 29 November 2016, of which the period commencing on 30 March 2016 and expiring on 29 June 2016 is to be served by way of periodic detention with the balance of the sentence suspended. There will be a further recognisance self in the sum of $500.00 to be of good behaviour for 18 months from 30 March 2016 with the same conditions that I have imposed with respect to the earlier recognisances.
With respect to the one offence of obtaining a financial advantage (CC2014/41946), you are convicted and sentenced to seven months’ imprisonment commencing on 30 August 2016 and expiring on 29 March 2017. That sentence will be wholly suspended and there will be a further recognisance self in the sum of $500.00 to be of good behaviour for a period of 12 months with conditions in the same terms as those which I have previously imposed on the earlier recognisances.
With respect to the breach of the Good Behaviour Order, that Good Behaviour Order is cancelled. The original sentence of three months’ imprisonment will be imposed commencing on 30 January 2016 and expiring on 29 April 2016 and that will be served by way of periodic detention concurrent with the other sentences that I have imposed.
With respect to one offence of dishonestly obtaining a financial advantage (CC2013/6928), you are convicted and sentenced to six months’ imprisonment commencing on 30 October 2015. That sentence will be wholly suspended and there will be a Good Behaviour Order for a period of two years, with the same conditions that I had previously imposed on the recognisances.
With respect to one offence of knowingly using a false document to obtain a gain (CC2013/6929), you will be convicted and sentenced to six months’ imprisonment commencing on 30 November 2015, which will also be wholly suspended with a Good Behaviour Order for a period of two years with conditions in the same terms as the conditions that I have imposed previously on the other Good Behaviour Order and recognisances.
The effect of the sentences that I have imposed is that you are liable to serve an aggregate term of imprisonment of 17 months commencing on 30 October 2015 and expiring on 29 March 2017. Of that period, the period commencing today and expiring on 29 June 2016 is to be served by way of periodic detention.
The other sentences have either been wholly or partially suspended and there are good behaviour orders or recognisances of varying periods which require you to accept supervision by Corrective Services and to obey the directions of Corrective Services and to undertake programs or counselling as directed by Corrective Services.
Now, it must be very clear to you that you have come very close to serving quite a lengthy period of full time imprisonment. If you do not comply with the terms of the orders that I have just made, then you should expect to serve a significant proportion of that sentence of 17 months’ imprisonment by way of full time imprisonment.
I also order that you make reparation to the Commonwealth in the sum of $37,404.38. I further order that you make reparation to Paul and Angela Rigney in the sum of $2,200.00.
| I certify that the preceding sixty-one [61] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 24 November 2015 |
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