R v Snowden
[2022] ACTSC 186
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Snowden |
Citation: | [2022] ACTSC 186 |
Hearing Date: | 22 July 2022 |
DecisionDate: | 22 July 2022 |
Before: | Mossop J |
Decision: | See [59] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – obtaining property by deception – theft – theft from employer – sustained course of conduct – gambling problem – no criminal history – plea of guilty – no significant discount for plea due to overwhelmingly strong case – offender willing to make repayment but unable to do so due to the operation of the Confiscation of Criminal Assets Act 2003 (ACT) – impact of imprisonment on wife and mother – need for deterrence and denunciation – sentences of imprisonment imposed and partially suspended |
Legislation Cited: | Confiscation of Criminal Assets Act 2003 (ACT), s 31 Crimes (Sentence Administration) Act 2005 (ACT) Criminal Code 2002 (ACT), ss 308, 326 |
Cases Cited: | Bugmy v The Queen [2013] HCA 37; 249 CLR 571 R v CA (No 2) [2016] ACTSC 371 R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 |
Parties: | The Queen ( Crown) Linton David Snowden ( Offender) |
Representation: | Counsel M Howe ( Crown) J De Bruin ( Offender) |
| Solicitors ACT Director of Public Prosecutions ( Crown) Legal Aid ACT ( Offender) | |
File Number: | SCC 118 of 2022 |
MOSSOP J:
Introduction
On 6 May 2022, the offender, Linton David Snowden, pleaded guilty to the following offences in the Magistrates Court:
(a)one count of obtaining property by deception contrary to s 326 of the Criminal Code 2002 (ACT). The maximum penalty is 1000 penalty units ($160,000), 10 years’ imprisonment or both; and
(b)one count of theft contrary to s 308 of the Criminal Code. The maximum penalty is $160,000, 10 years’ imprisonment or both.
These counts are rolled-up charges taking into account offending over a course of approximately three and a half years.
Facts
The facts are agreed. They are set out in great detail in the Statement of Facts which was tendered. In summary they are as follows.
From 22 September 2008 the offender was an employee of Royal Wolf Trading Australia Pty Ltd (Royal Wolf), a business specialising in hire, sales and modification of shipping containers.
His most recent position was as the Canberra branch manager. He oversaw operations in the Australian Capital Territory (ACT) as well as the yards of agents in Young, Griffith, Batemans Bay and Moruya, New South Wales (NSW).
The branch manager role required him to create contracts (by computer‑generated invoice) with clients of Royal Wolf for the purchase, hire and modification of containers. This included receiving cash payments and completing the banking process for those payments. Additionally, the offender was required to undertake an annual stocktake of the Canberra customer service centre and regional agents’ yards.
Between 24 November 2016 and 18 May 2020 the offender sold shipping containers purportedly on behalf of his employer, but directed payment to his personal bank account and, on a handful of occasions, accepted cash payment and retained the cash.
On 49 occasions, payments were made directly into the offender’s bank account. Some payments were made as instalments. The total value of these transactions was $230,567. This gives rise to the rolled-up charge of dishonestly obtaining property by deception (CC2021/7760).
On six occasions payments were made in cash and pocketed by the offender. These transactions totalled $18,130. This gives rise to the charge of theft (CC2021/7802).
On each occasion, the customer had interacted with the offender, been provided with an invoice and believed that the money was being transferred into Royal Wolf’s bank account.
The offending was detected when a colleague, who I will refer to as UD, issued a quote for a client on 18 May 2020 for $4895. She was working from home at the time. The client emailed UD to state he was attending the Canberra Royal Wolf service centre to pay a $1500 deposit. UD asked the offender on multiple occasions if he had banked the deposit received. Each time, he stated he had taken the deposit and banked it in accordance with the Royal Wolf process. However, UD checked the client’s customer profile regularly and observed the deposit had not been allocated to his profile. The offender, when asked, stated the cash must have been allocated to the wrong account by the accounts team and that he would have the issue rectified.
On 17 June 2022 the client attended the Canberra service centre and paid the outstanding amount on the quote directly to UD. Over the following days, she conducted checks of the client’s profile as she knew that the container was due to be delivered and that containers are only delivered once full payment is received. She noticed the only money banked against the account was the money she had received and that the deposit was still outstanding. She subsequently located a cash receipt book in the offender’s office, a receipt made out to the client for the $1500 and an empty envelope with the client’s name on it.
On 25 June 2020 UD required a number of 40 ft shipping containers to be delivered to the Canberra storage yard to fulfill a number of contracts. The Sydney workshop supervisor advised that the ACT could not have any more containers delivered as there was sufficient stock in their yard. Upon receiving a report detailing current stock recorded as being in the ACT, UD completed a stocktake and observed that only two containers were in the yard compared to 30 recorded on the report.
The same day the offender asked the ACT/NSW administration manager of Royal Wolf how to put a contract on hold. He also called UD and advised that he had sorted out the issue of the missing containers and that there was no need to return a missed call from a member of the Sydney office.
On 26 June 2020 UD discovered that the offender had created a new rental contract the day before for 28 of the missing 40 ft containers. The contract had been put “on hold”, meaning no invoice had been created. The offender’s direct line manager, the NSW/ACT regional manager, was advised. He travelled to Canberra to speak with the offender who advised that the contract was on hold because the customer did not want to be billed until 1 July 2020 and that the containers were being held at an address in Mitchell.
The regional manager attended the Mitchell location and did not observe that any of the containers were present. He was advised by Royal Wolf’s preferred transport company that it had not moved any containers to the Mitchell location. Upon calling the mobile number recorded on the customer profile, each attempt returned a disconnected dial tone. After the accounts department attempted to contact the purported customer via email, they received a response from someone in the United Kingdom who had no knowledge of the shipping containers.
The following Monday, the regional manager informed the offender that he had visited Mitchell and the results of attempting to contact the client. The offender said “you got me, I have been stealing containers and selling them”. He advised that he had been doing this for six years, that he had a gambling problem that he was using the funds for and that nobody else was involved.
The offender was stood down. Internal investigations revealed that there was a second contract on hold for 30 20 ft containers, that had been created on 11 December 2019. The serial numbers for the containers in both contracts were showing in the Royal Wolf computer system to be available in the Canberra yard, however a stock take of the Canberra yard did not reveal these containers.
The offender stated in a meeting with the regional manager and the Royal Wolf executive general manager for Australia on 3 July 2020 that he had stolen containers and was seeking help for his gambling problem. He informed the regional manager that as well as stealing cash, he had created an altered invoice on his computer with his personal bank account details on it and showed the manager this invoice.
The police attended the Royal Wolf service centre on 29 June 2020 and commenced investigations. They attended the offender’s residential address on 13 February 2021 and he agreed to attend the Woden police station to participate in an interview. He later advised police that he had received legal advice and would not be participating in an interview.
On 8 December 2021 an order was made by the ACT Supreme Court pursuant to s 31 of the Confiscation of Criminal Assets Act 2003 (ACT) (COCA Act) restraining the offender from dealing with his interest in his residential property.
Victim impact statement
The regional manager provided a victim impact statement. He described how the need for “root cause analysis” of how the theft was achieved had resulted in a large amount of the company’s time and money being spent on the investigation and how every employee and contractor that had dealings with the offender had to be scrutinised. This left many people feeling like their integrity was being questioned. The regional manager stated that external auditors were brought in, which led to significant restrictions on how the business operates. He also stated that Royal Wolf is predominantly a hire business, and the fact that assets were stolen has had an impact upon future revenues as they are no longer available for hire, in the context of global supply chain shortages.
In relation to workplace culture, the manager described how the theft “rocked our people to the core – totally undermining the values of ‘integrity’ and ‘working together’”. Because the offender was a trusted colleague who had worked in the business for 10 years, the sense of betrayal was described as “extreme” and he stated that “a lot of tears were shed”.
Objective seriousness
The two offence provisions can cover an unlimited value of property. In the present case, the sums obtained were substantial both in dollar terms and also for the purposes of the business from which they were taken. The offending involved a gross breach of trust. The offender was only in the position that he was because of the trust placed in him by the business. It was that position which he exploited to commit his offences. They were not very sophisticated. Although the scheme adopted provided superficial cover for his dishonesty, it is hard to see how, in a substantial organisation, the accounting anomalies generated by his offending would not have been detected in the long run. Each of the offences involves a rolled-up charge encompassing multiple occasions of dishonesty. They are both above the mid-range of objective seriousness for the offences in question.
Subjective circumstances
The offender is 46 years old. He was born in Cooma and grew up on a farm. He had a difficult childhood, because his father suffered a brain injury from a horse‑riding accident when the offender was 13, leaving him with additional responsibilities on the farm.
He had difficulties in attending high school and balancing his school work, while performing farm duties in mornings, afternoons and weekends to keep the farm financially viable.
The offender’s father was always angry after the injury and became addicted to alcohol. He was verbally abusive towards the offender.
The farm was repossessed by the bank and his parents separated. The offender chose to live with his mother which caused a rift between him and his father, with whom he had very little contact until his father’s death in 2002.
The offender described a “very close” relationship with his mother who is now 75 years old. She has lived with him for the past five years following a serious fall resulting in a back injury which saw her retire from her job. She now displays early signs of dementia which has caused some frustration within the home. The offender also has a sister with whom he has a close relationship.
The offender has been married for 21 years and his wife provides him with ongoing support. The author of the pre-sentence report noted they appear to have a strong and supportive relationship, although he initially hid his offending from her. The offender’s wife has health issues that largely prevent her from driving and he frequently takes her to appointments and to collect medication.
The offender owns and pays a mortgage on a home in Jerrabomberra. He told the author of the pre-sentence report that he sometimes feels “in the middle” when his mother and wife have arguments at the home, but the author noted the home appears to generally be a stable and pro-social location.
The offender holds an associate diploma in social science. He worked for 13 years in a management role at a retail store and then for around 13 years at Royal Wolf. He now works as a curator at the Queanbeyan Racecourse and enjoys this role despite earning less. Part of his role is to supervise people subject to community service work orders in NSW who perform work at the racecourse. His employer is aware of these charges and is supportive of the offender.
The offender is able to pay his bills satisfactorily despite ongoing financial difficulties due to receiving a lower income. He stated that he is willing to repay all monies stolen by him by re-mortgaging his house or attempting to access his superannuation. However, he has not in fact done so, saying that he is unable to withdraw the money from his superannuation fund and that because of the restraining order, has been unable to remortgage his property. I will say something more about this later in these reasons.
He acknowledged that his gambling became “out of control” during the time he was committing the offences and that this contributed to his offending. He reported that he has not placed a bet in over two years, going “cold turkey” after being charged. He stated to the author of the pre-sentence report that neither working at the racecourse nor spending time at pubs with his friends has influenced him to return to gambling. His wife believes that he has ceased gambling completely.
The offender has a small, prosocial peer group that he is returning to over time after isolating himself following being charged with the offences.
He has no problems with alcohol or drugs.
The offender was in a car accident at age 11 in which he broke two vertebrae and required four months’ hospitalisation. He has previously been diagnosed with heart issues and type 2 diabetes which he believes are under control. In relation to his mental health, a report of Ms Tabitha Frew, a clinical psychologist, was tendered.
In terms of his attitude to offences, the offender agreed with the Statement of Facts and spoke about his professional and personal stress at the time which led to an increase in his gambling. In turn, his losses increased his stress levels. On the first time he stole, he told the author of the pre-sentence report that the customer paid in cash and he intended to deposit the money but later spent some of it and never repaid any money. This appears to be inconsistent with the Statement of Facts which records the first transaction as having been made by electronic funds transfer on 25 November 2016 but nothing turns on this. He then saw further opportunities to steal. He stated this behaviour continued for many months. He reported using the money to escape pressures he was experiencing through home and work life, often through gambling. Further, his actions left him feeling ashamed and embarrassed, with a desire to pay the money back.
The author of the pre-sentence report assessed the offender as being at a low risk of general reoffending. The criminogenic risk factors relate to his mental health and financial issues. Protective factors include stable accommodation, full-time employment, supportive family and the absence of significant alcohol or drug issues. In the author’s opinion, the offender would benefit from a period of supervision. He was assessed as suitable for a community service work condition and for an intensive correction order (ICO).
The report of Ms Frew identifies that the offender’s personality structure indicated a tendency towards cluster B traits. She made a diagnosis of complex chronic post‑traumatic stress disorder (PTSD) arising from childhood trauma as well as a subclinical narcissistic personality disorder, Major Depressive Disorder with Anxious Distress and a gambling disorder at the time of the offending. She identified the onset of PTSD in adulthood associated with the inability of him and his wife to have children and the health conditions of his wife and mother which increased their dependence upon him. She did not establish any causal link between the historical or current mental health conditions and the commission of the offences. She indicated that the traits of narcissistic personality disorder are permanent and affected his judgment, making it difficult for him to plan how to stop the offending behaviours. She assessed him as having a low risk of reoffending but being more prone to reoffending with increased exposure to others with pro-criminal attitudes. Some improvements could be made to his PTSD with a substantial period of treatment, but his traits of narcissistic personality disorder are fixed and would require any treatment to be mandated by the court.
I accept that the offender had a childhood that was dysfunctional in some respects and that he continues to suffer the consequences of that today, but in my view that is of limited significance in this case where no causal link to the offending is established and the dysfunction in childhood was not as severe as in cases such as Bugmy v The Queen [2013] HCA 37; 249 CLR 571.
References from his wife, brother-in-law, mother, sister and the offender himself are generally consistent with the subjective circumstances described above. A further letter from his wife describes an additional medical condition suffered by his mother and the uncertainty in relation to prognosis and treatment. A letter from his current employer attests to his continuing employment and that he has been a trustworthy and reliable employee.
Criminal history
The offender has no prior criminal convictions.
Plea of guilty
He pleaded guilty to the offences in the Magistrates Court on the seventh mention, after entering a plea of not guilty and following the preparation of a brief of evidence. The Crown submitted that while the plea of guilty was entered at a relatively early stage, the prosecution case was overwhelmingly strong within the meaning of s 35(4) of the Crimes (Sentencing) Act 2005 (ACT) because of the offender’s admissions to his employer and the business records establishing that the stolen funds were received into the offender’s own bank account. The relevant approach to be applied is that set out in R v Newby [2022] ACTCA 20 (Newby), particularly at [31] and [49].
I accept the submission that the case against the offender was overwhelmingly strong. While there was a very clear documentary trail in bank accounts and invoices, the strength of the Crown case was increased by the admissions that he made at the time that his offending was discovered. Admissions form part of the evidence upon which an assessment of the Crown case must be made: R v Garay (No 4) [2022] ACTSC 138 at [114].
In the absence of those admissions then the case would have been described as strong or even very strong but not overwhelming. In those circumstances an early plea would have resulted in a discount of between 20 and 25 percent. If the effect of the legislation is to deny to the offender such a discount because of the overwhelming nature of the case against him, in circumstances where it was transformed from a strong to overwhelming case because of his own admissions, then that would be an anomalous outcome. The making of the admissions to his employer (and not the police) prior to any charges being laid (rather than afterwards) does not fall within the scope of s 35A and s 36 of the Crimes (Sentencing) Act. As a consequence, those specific provisions which provide for the making and identification of discounts for assistance in the administration of justice and assistance to law enforcement authorities do not apply.
As pointed out in R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 (Toumo’ua) at [70], the rationale for the insertion of a provision such as s 35(4) into s 35 of the Crimes (Sentencing) Act, which is otherwise largely focused on the timing of the plea and its associated utilitarian value, is unclear: see also Newby at [32]. The explanatory statement did not elaborate upon its purpose: Toumo’ua at [70]. As pointed out in Toumo’ua at [67]-[69], the approach taken in the Territory differs from that in NSW. It is unfortunate that a coherent policy rationale for a provision of such significance as s 35(4) cannot be discerned either from the terms of the legislation or from the permissible extrinsic materials.
What is a “significant reduction” in sentence may vary from case to case. It may in some cases be relevant to consider the percentage by which the sentence is to be reduced. In other cases, particularly where the head sentence is a long one, it may be relevant to consider simply the period of the reduction in order to decide whether or not it is a “significant reduction”. In this case, I consider that a five percent reduction in the head sentence will not infringe the prohibition in s 35(4). Any more than a five percent reduction in the circumstances would be a significant reduction. But for the prohibition, a reduction in sentence of between 20 and 25 percent would have been appropriate.
In my view, the appropriate course is to give a discount on account of the plea of guilty which is not a “significant reduction” – a discount of five percent – and take the making of admissions into account in assessing the offender’s willingness to facilitate the course of justice which reflects upon his remorse, contrition and likelihood of reoffending. That will not produce a numerically-identified discount but goes some way to ameliorating what might otherwise be seen as the anomalous consequences of the operation of s 35(4) in this case.
Time in custody
The offender has spent no time in custody in relation to this offending.
Comparable cases
The Crown made reference to five cases said to be comparable: R v Morris [2017] ACTSC 400 ($191,141 obtained over eight months, 25 percent reduction for plea of guilty, sentence of 20 months’ imprisonment suspended after five), R v Reid [2016] ACTSC 24 ($338,103.70 obtained over a 12-month period, 25 percent reduction for plea of guilty, 38 months’ imprisonment suspended after eight), R v NQ [2017] ACTSC 317 ($406,876.80 obtained over a three-year period, 25 percent reduction for plea of guilty, 36 months’ imprisonment suspended after 15), R v Mooney [2017] ACTSC 358 ($157,609.06 appropriated over four years, 15 percent reduction for plea of guilty, three years’ imprisonment with a non‑parole period 18 months), R v QU [2019] ACTSC 155 ($160,430.39 obtained over 23 months, 25 percent discount for plea of guilty, three years imprisonment served by ICO). In addition, counsel for the offender referred to R v Raftery [2022] ACTSC 77 (Raftery) (theft of $292,240.70 over a six-month period, discount of 15 percent for plea of guilty and remorse, 12 months and 21 days’ imprisonment suspended after four months). Raftery was not a case involving an employer-employee relationship.
Willingness to make repayment
The offender’sstated willingness to attempt to repay the stolen or misappropriated amount requires some further comment.
As pointed out above, the offender had expressed a willingness to explore the financial means by which he could repay the amount stolen or misappropriated. He was unable to do so because of the existence of a restraining order under the COCA Act. In the sentencing proceedings, the Director of Public Prosecutions had declined to make any application for reparation orders because the losses suffered by the company had been made good by insurance payments. The loss to an insurer has been held by this court to not be able to be made the subject of a reparation order: see R v CA (No 2) [2016] ACTSC 371. Had a reparation order been sought then, if it was open to do so, I would have made a reparation order and, in order to give it practical effect, made it a condition of the good behaviour order associated with the partial suspension of the sentence to be imposed. In those circumstances, it would clearly have been open to take the intention of the offender and the likelihood of actual repayment into account as a matter of significance in determining his sentence. However, because no application for a reparation order was made, as a result of the involvement of the insurer, any repayment of the money can only occur through the process of the COCA Act. The court is prohibited, notwithstanding the reality of the situation, from taking into account in determining the offender’s sentence, that money will be recovered pursuant to the COCA Act: Crimes (Sentencing) Act s 34(2). This money will be paid to the Territory rather than the victim of the offending. It is an odd result that:
(a)an offender’s willingness to attempt to repay the losses caused by his offending is frustrated by the operation of or actions under the COCA Act;
(b)because of the involvement of an insurer, no application for a reparation order may be made, a reparation order may not be made and hence the likely payment pursuant to the reparation order is not a matter which can be taken into account in favour of the offender being sentenced; and
(c)recovery under the COCA Act after conviction, rather than by voluntary payment by the offender prior to the conviction, will benefit the Territory and not the direct victim of the offending (the company) or indirect victim of the offending (the insurance company).
It would appear to be desirable to allow an offender, who is willing and otherwise able to do so, to repay the stolen money and have that repayment taken into account on sentence. That would be to the benefit of the victim of the criminal offending and of the offender. Such an outcome would appear to be consistent with general notions of fairness. However, for the reasons given it is a course which has not been available in this case.
Consideration
Obviously general deterrence plays a very significant role in cases such as this one. The fundamental importance of trust in the relationship of an employer with a senior employee is essential to the operation of any business. Substantial theft by employees must be denounced and punished in a way that reinforces the importance of that trust.
I accept that the offender is unlikely to reoffend. I also take into account pursuant to s 33(1)(o) of the Crimes (Sentencing) Act the significant consequences that a sentence of imprisonment will have upon the offender’s wife and mother who are more‑than‑usually dependent upon him.
In cases like this, the pattern of sentencing disclosed by the comparable cases referred to indicates a willingness to impose lower-than-usual periods of imprisonment before sentences are suspended. This reflects the balancing exercise between the unlikelihood of further offending on the one hand and the very significant need to deter and denounce gross breaches of trust such as those present in this case.
In the present case, the gross breach of trust involved offending which continued over a substantial period and involved numerous transactions. It was carried out for the purposes of gambling, a fundamentally pointless and costly entertainment activity. The offender is assessed as having a low risk of reoffending and no other criminal history. A sentence of imprisonment served by ICO would not adequately reflect the need for denunciation and general deterrence.
In my view, the appropriate starting point on the charge of obtaining property by deception is a sentence of three years and six months’ imprisonment reduced by five percent on account of the plea of guilty which gives a sentence of three years and four months. On the charge of theft, the starting point is a sentence of two and a half years’ imprisonment reduced to two years and four and a half months’ imprisonment on account of the plea of guilty. Six months of that sentence will be cumulative upon the earlier sentence, but it will be otherwise concurrent. This gives an aggregate sentence of three years and 10 months, or 46 months’ imprisonment. The sentences will be suspended after the offender has served 14 months.
Orders
The orders of the Court are:
1. On the charge of theft (CC2021/7802), the offender is convicted and sentenced to 28 months and 15 days commencing on 22 July 2022 and ending on 6 December 2024.
2. The sentence is suspended after 14 months upon the offender entering into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 15 months with the core conditions only.
3. On the charge of obtaining property by deception (CC2021/7760), the offender is convicted and sentenced to imprisonment for 40 months commencing on 22 January 2023 and ending on 21 May 2026.
4. The sentence is suspended after 8 months upon the offender entering into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 32 months with the core conditions only.
| I certify that the preceding fifty-nine [59] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: 6 September 2022 |
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