R v Tahana
[2020] ACTSC 124
•28 January 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Tahana |
Citation: | [2020] ACTSC 124 |
Hearing Dates: | 24 May; 16 July; 6, 14, 19 November; 12 December 2019 |
DecisionDate: | 28 January 2020 |
Before: | Burns J |
Decision: | See [25]–[26] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – one rolled-up count obtaining property by deception – plea of guilty – guarded prospects for rehabilitation – significant history of similar offending |
Legislation Cited: | Criminal Code 2002 (ACT) ss 326, 350(2)(a)(i) |
Parties: | The Queen (Crown) Tania Rosella Tahana (Offender) |
Representation: | Counsel A Williamson (Crown) J Moffett (24 May; 6 November; 14 November; 12 December 2019; 28 January 2020); B Shelton (16 July 2019) (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson (Offender) | |
File Number: | SCC 77 of 2018; SCC 79 of 2018 |
BURNS J:
Tania Tahana, on 13 April 2018 you pleaded guilty in the ACT Magistrates Court to
30 counts of obtaining property by deception, contrary to s 326 of the
Criminal Code 2002(ACT) (the Criminal Code), which is punishable by
10 years' imprisonment, 1,000 penalty units, or both. You also pleaded guilty to
two counts of false accounting, contrary to s 350(2)(a)(i) of the Criminal Code, punishable by seven years’ imprisonment, 700 penalty units, or both.
There were an additional 34 counts that you entered pleas of not guilty to and these were committed for trial. On 7 November 2018, a complex pre-trial application filed by the Crown was heard in this Court. In essence, the Crown sought to have evidence of the pleas of guilty to the 30 counts, to which I have referred, and the facts pertaining to them, admitted as tendency evidence at your trial. On 5 March 2019, the Crown's application was allowed.
Following negotiations between the parties, on 12 March 2019 you pleaded guilty in this Court to a rolled-up count of obtaining property by deception, contrary to
s 326 of the Criminal Code, which, as I have said, is punishable by
10 years’ imprisonment, a fine not exceeding 1,000 penalty units, or both.
That rolled-up count encompasses the conduct relating to the 32 charges to which you entered pleas of guilty and the remaining 34 counts which were listed for trial. The Crown accepted the plea of guilty to that rolled-up count in full satisfaction of all matters. The plea of guilty to the one rolled-up count was entered six days before your trial was to begin on 18 March 2019.
The facts
In summary, the facts of this matter are as follows. In November 2008, you were employed by Yellow Edge Pty Ltd (Yellow Edge) as the company's
Chief Financial Officer and Chief Operating Officer.
Between 8 January 2009 and 9 October 2013, you manipulated the payment procedure utilised by Yellow Edge to pay invoices to suppliers by redirecting funds into a personal account shared by you and your husband. Between those dates, you made a
total of 64 unauthorised transactions, totalling $663,745.01, where you dishonestly appropriated funds to yourself.
As I observed, the present charge is a rolled-up charge which encompasses
66 separate charges. There is a benefit to the prosecution in proceeding by way of a rolled-up charge, as it avoids the necessity of proceeding on multiple charges and makes the sentence proceeding easier for both the prosecution and the Court.
There is also a significant advantage to an accused, in that the maximum sentence available is reduced and any sentence imposed represents a complete concurrence of separate sentences that might otherwise have been imposed.
In determining the objective seriousness of the present offence, I take into account the following. Firstly, the value of the property obtained was very significant. Secondly, the duration of offending was extensive, spanning nearly five years. This also demonstrates that the offence was subject to considerable premeditation.
Thirdly, the offence involved a grave breach of trust by you. You used your position of trust within the business conducted by the victim and your knowledge of the victim's business and financial systems to steal from your employer over a sustained period.
The modus operandi of offending was not particularly sophisticated, but you took steps to cover your tracks in the financial records of the victim. The offence was therefore difficult to detect and it required many hours, if not weeks or months, of labour on behalf of the victim to discover the extent of your offending. You only ceased offending when an audit revealed discrepancies in the victim's accounts.
Fourthly, as a result of your offending, the victim suffered a significant financial loss. You repaid $375,000 to the victim after it commenced civil proceedings against you, but the company still sustained a considerable loss.
Behind the company were flesh and blood human beings who also suffered. The
Victim Impact Statement of Andrew Simon, a director of the victim company, speaks of the anxiety and frustration your actions occasioned and the years of effort it has taken and will continue to take to retrieve the company's position. There is no real prospect of the victim recovering any further funds from you. I would assess the objective gravity of the present offence as towards the upper end of the mid-range of such offences.
Subjective features
You are currently 45 years old. In 1995 you were convicted in the
ACT Magistrates Court of one charge of theft and placed on a Recognisance to be of good behaviour for a period of 12 months.
On 24 October 1997, you were convicted in the ACT Magistrates Court of an offence of theft of a chose in action, and ordered to complete 208 hours of community service within 12 months. The Statement of Facts with regard to that later offence reveals that it also involved theft from an employer. You held a position as an accounts clerk and you used your position to steal $11,186 from your employer over about a
two year period.
Your significant history of similar offending, albeit 12 years prior to the commencement of the transactions encompassed within the present charge, leaves little room for leniency in sentencing for the present offence.
You were born in New Zealand, before emigrating to Australia with your mother in 1979. Your parents separated when you were four years old, due to your father's abusive behaviour. You reported no significant contact with your father until you reconnected in your 30’s.
You married in 2003 and you continue to have a supportive relationship with your husband. You completed Year 12 and have a University Bachelor’s Degree. You have generally been employed in financial services. You have no drug or alcohol issues which need to be addressed.
You told the author of the Pre-Sentence Report that you accepted the contents of the Statement of Facts. The author of the Report stated that you articulated regret for your offence and acknowledged that you had abused your position of trust with the victim. You were assessed as at medium to low risk of re-offending.
Consideration
It is difficult to assess the extent to which you feel true remorse for your offence. The Statement of Facts and the Victim Impact Statement of Mr Simon demonstrate that for a long period you sought to avoid full responsibility for your actions. In my opinion, your prospects for rehabilitation must be considered guarded.
I take into account the testimonial from Lyn Randall and the medical records from Queanbeyan District Hospital and Canberra Health Services tendered on your behalf. I note that you were admitted to the psychiatry unit at the Canberra Hospital on
15 November 2019 after a suicide attempt in the context of stress surrounding the current proceeding.
There is no evidence of any formal mental health diagnosis or anything to suggest that you suffer from any condition that cannot be appropriately treated in custody, or which would make a custodial sentence more onerous for you.
I have considered that comparable cases, referred to by the Crown and by your counsel. It is plain, as acknowledged by your counsel, that the application of relevant sentencing principles calls for nothing less than the imposition of a significant period of imprisonment.
I will reduce the otherwise appropriate sentence by approximately 15 per cent to reflect your plea of guilty. I also note that you have not previously served a term of imprisonment.
Sentence
My starting point is six years' imprisonment. I will record a conviction in relation to the offence and you will be sentenced to five years' imprisonment, commencing on
19 November 2019 and expiring on 18 November 2024.
I will set a non-parole period of two years and nine months, commencing on
19 November 2019 and expiring on 18 August 2022.
| I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: |
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