R v Wallis
[2022] ACTSC 140
•10 June 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Wallis |
Citation: | [2022] ACTSC 140 |
Hearing Dates: | 21 April, 6 May 2022 |
DecisionDate: | 10 June 2022 |
Before: | McCallum CJ |
Decision: | For the three offences to which he pleaded guilty the offender is convicted. For count 1, the offender is sentenced to a term of imprisonment for 14 months. For count 2, the offender is sentenced to a term of imprisonment for 14 months. For count 3, the offender is sentenced to a term of imprisonment for two years. In each case the sentence commences today, 10 June 2022. Direct that the offender be released after serving 12 months of his sentences upon his entering into a bond to be of good behaviour for a further 12 months and giving security of $10,000. |
Catchwords: | CRIMINAL LAW — JURISDICTION, PRACTICE AND PROCEDURE — Judgment and Punishment — Sentence — Offences of dishonestly causing loss to a Commonwealth entity and using a forged document to obtain gain —Where offender held position of trust — Whether prison would be experienced more harshly by offender — Where offender suffered mental illness — Where offender immunosuppressed in context of COVID-19 pandemic |
Legislation Cited: | Crimes Act 1914 (Cth), ss 16A, 19AC Criminal Code Act 1995 (Cth), ss 135.1(3), 145.1(1) Science and Industry Research Act 1949 (Cth), s 9 |
Cases Cited: | R v Host [2015] WASCA 23 R v Qutami (2001) 127 A Crim R 369 |
Parties: | The Queen ( Crown) Mark Wallis ( Offender) |
Representation: | Counsel N Purvis ( Crown) M Jones SC ( Offender) |
| Solicitors Commonwealth Director of Public Prosecutions ( Crown) Kamy Saeedi Law ( Offender) | |
File Number: | SCC 42 of 2021 |
McCALLUM CJ:
This case presents a difficult sentencing exercise. The offender, Mark Stuart Wallis, has pleaded guilty to three federal offences:
(a)that between about 1 July 2012 and 19 June 2017, he dishonestly caused a loss to a Commonwealth entity, contrary to s 135.1(3) of the Criminal Code Act 1995 (Cth), carrying a maximum penalty of imprisonment for 5 years;
(b)that between 27 July 2016 and 20 September 2016, he dishonestly caused a loss to a Commonwealth entity, contrary to the same provision of the Code, and carrying the same maximum penalty.
(c)that between about 15 October 2015 and about 29 March 2016, he intentionally used a forged document to obtain a gain, contrary to s 145.1(1) of the Code, carrying a maximum penalty of imprisonment for 10 years.
The arraignment process revealed a dispute as to the period during which the offending in count 1 occurred. I accept that it is a narrower period than stated in the indictment, the true period being revealed by a schedule to the agreed statement of facts.
The pleas of guilty were entered shortly after a criminal case conference convened in this court. The Crown submits that the discount to be allowed on that basis should be tempered by the fact that there was a strong Crown case. Nonetheless, the trial would have been one of considerable complexity and would have used considerable resources of the Court and the Commonwealth DPP. In the circumstances, I am satisfied that it is appropriate in accordance with the usual practice to allow a discount of some 20 percent from the penalties to be imposed.
The sentence hearing proceeded on the basis of agreed facts. It is not necessary to set out every detail of the fraud. In summary, the offences were committed while the offender was employed by the CSIRO in the position of general manager of property services. The offender was entitled in that role to an annual salary of slightly more than $160,000. He was also entitled to a maximum performance payment which increased over time and which he in fact received each year except for 2017, the year he was dismissed. He was also entitled to a CSIRO fleet vehicle from an approved list or a special allowance in place of that.
At the time his employment was terminated, the offender’s remuneration was $257,630. The motor vehicle allowance was around $17,000 and his maximum performance payment was $20,000.
The offender had negotiated a redundancy package and was due to leave the CSIRO in accordance with that package on 19 July 2017. However, shortly before that date, he was confronted with the allegations that gave rise to the present charges and was dismissed, in fact, the day before his employment was due to terminate in accordance with the redundancy package.
In his role as general manager of property services, the offender had access to a credit card and was in a position of authority for the purpose of approving both purchase orders and service order claims within the CSIRO. The first count on the indictment is based on his misuse of that credit card over a period of some three years for purchases in amounts totalling $71,892.47.
The second count is based on the offender's use of CSIRO funds to pay for a gym membership and personal trainer sessions for both himself and his wife for the coming year, in a payment made on 23 August 2016. The offender himself was entitled to gym membership as part of his package with CSIRO but asked the person from whom the gym membership was purchased to create a “consolidated invoice”, omitting the name of his wife, which he then had processed at the CSIRO. The value of the gym membership and personal training services referable to the offender’s wife was approximately $5,275. Those were the purchases which the offender was not authorised by the CSIRO to make.
The third count is undoubtedly the most serious. The circumstances of that offence are that, on 15 October 2015, the offender spoke to a sales manager at an entity trading as Lexus of Canberra and Canberra Toyota making inquiries about the purchase of a Lexus LX570 for himself. In due course, the offender signed a contract for the purchase of both a Lexus and a Toyota HiLux 4x4 SR5. He arranged for the invoice to be presented in such a way as to persuade an officer of the CSIRO to process it. The terms of the payment processing arranged by the offender represented falsely that the payment of some $245,391.81 was referable to “Toyota National Fleet Management Services Termination fees 10 x Toyota fleet vehicles various cessation dates.”
The CSIRO commenced an investigation into the offences in around mid-June 2017. When first confronted as to the anomalies in the credit card purchases that were identified during that investigation, the offender provided a statutory declaration which falsely declared:
“The attached list of charges appear to be consistent with those incurred for work purposes noting that at times my card was used by others. I am comfortable with these.”
Shortly after providing that statutory declaration, however, the offender relented and telephoned a person involved in the investigation at CSIRO, explaining in effect that he took responsibility for the charges and had no explanation for having incurred them for personal use. As already indicated, he was ultimately dismissed from the CSIRO on 18 July 2017.
On 12 October 2018, the offender repaid the CSIRO for the total cost of all transactions included in the schedule of personal expenses put on the credit card, as well as the purchase price for the Lexus and the HiLux. Those two vehicles had been seized by the AFP and retained. While this is not a matter that was addressed in submissions, it appears that the offender may in that way have doubly paid for some components of the amounts defrauded, having both lost the vehicles and repaid their purchase price. I reach that conclusion tentatively because, as I say, it was not a matter addressed by the parties in submissions.
The CSIRO Chief Financial Officer, Mr Munyard, provided a victim impact statement which demonstrates the seriousness of the offences, in particular the fact that their impact on the CSIRO extends beyond the cost of the fraudulent transactions. Mr Munyard notes that Mr Wallis’ role with the CSIRO was to manage the CSIRO’s property portfolio, travel services, procurement and fleet management, but also to manage security and fraud control. That is a factor which plainly heightens the seriousness of the breach of trust involved in the offending.
Mr Munyard notes that, as the actions were contrary to CSIRO’s terms and conditions of service, the CSIRO had to establish an inquiry into the suspected serious misconduct to discover its full extent. That inquiry diverted time and resources away from completing tasks to implement CSIRO’s statutory functions.
Similarly, the need for the CSIRO to cooperate with the AFP and assist in its investigations also diverted time and resources. Mr Munyard estimates that at least 31 CSIRO staff have been directly impacted for a significant period as a result of these investigations, including through involvement in interviews for inquiries and investigations, preparation of documents, gathering of further information and so on.
Mr Munyard concludes:
“As a result, these resources were diverted away from meeting CSIRO’s statutory objectives under the Science and Industry Research Act 1949, for the purposes of solving the greatest challenges through science and innovation.”
I have confirmed by consulting s 9 of the Science and Industry Research Act 1949 (Cth) that the primary statutory function of the CSIRO is to carry out scientific research for the broad benefit of the community, both nationally and internationally. The diversion of both actual funds and resources from the CSIRO must, in my view, be regarded as a serious matter.
The objective seriousness of the offences can only be characterised as high. I reach this conclusion based on the period over which the offending continued, the amount involved, the range of kinds of expenditure from the banal to the luxurious, the fact that it was a continual course of conduct, the significant breach of trust involved and the fact that the course of offending must be considered to have been premeditated and carefully planned.
That is particularly so in relation to the steps taken by the offender to secure approval of the payment for the two motor vehicles, but also is the case with the gym membership, which involved the offender requesting an employee of the gym to provide an invoice in a particular form.
The agreed facts are replete with details of the lengths to which the offender went to secure approval for what he must have known were not authorised expenses. The expenses put on the credit card extended to clothes, home security equipment, tools, motor vehicle insurance, numerous payments for diesel, painting equipment and a washing machine.
The fraudulent payments also included a jet ski. The payment for the jet ski again involved a brazen deception by the offender as to why the CSIRO was paying an invoice in the name of the company from which that item was purchased.
The fact that the total amount has been repaid demonstrates contrition and an acceptance of responsibility on the part of the offender, and that is a factor in his favour. That said, I note the Crown's submission that the repayment was not entirely voluntary in the sense that it was made in response to a letter of demand. Still, it was a substantial sum of money, and I am satisfied that the offender has repaid it out of his own resources, demonstrating a commitment to the path of rehabilitation.
As to the impact on CSIRO, I have already referred to the contents of the victim impact statement. The Crown relied on the remarks of McLure P in the judgment of R v Host [2015] WASCA 23 at [24] in that context:
“[I]t may be significant that the Commonwealth incurs very considerable, unrecoverable costs in compliance, audit and investigation systems designed to protects its revenue from, and to detect, fraudulent and other dishonest conduct. Of course, the real victims of such conduct are the members of the Australian community as a whole because it reduces the funds available for essential and other services and increases the taxation burden on honest taxpayers.”
There is a suggestion in the evidence that the offences were committed by the offender while he was in a dissociative state. I am not satisfied on the balance of probabilities that the offender’s judgment was suspended in that way or that he was unaware of the unlawfulness and gravity of his conduct. My reasons for not being persuaded of that fact are as follows.
First, and perhaps most importantly, the offender himself did not give evidence. I do not adhere to the so-called “principle” in R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 at [58]-[59] that reports of psychologists based on self-report by an offender should be given very little weight where an offender does not give sworn evidence as to the history given. In my experience, the Court often can and should draw reliable inferences from a psychologist’s report, even where an offender does not give evidence. The reasons for an offender not to give evidence are many and varied. The inferences that may nonetheless be drawn in any individual case cannot be swept aside as matter of principle.
In this case, however, I am not persuaded that the evidence of Dr Bollinger which was relied upon for this purpose is enough, without the offender having supported it himself, to reach the conclusion that the offender committed the offences in a dissociated state.
First, Dr Bollinger was somewhat equivocal as to whether the offences were in fact committed in such a state. She accepted in cross-examination by the Crown at the proceedings on sentence that, even though a person may have no recollection of committing offences, the offences could still have been committed with fraudulent intent.
Secondly, her conclusion as to the cause of any such state was also expressed in somewhat equivocal terms. In response to a question whether Mr Wallis’ mental illnesses, described by her as major depressive disorder and post-traumatic stress disorder with dissociative features, caused or contributed to the offending, she said:
“Yes, it is likely that there were a link between the offending and his mental health. Mr Wallis appears to have been overwhelmed by stress resulting in two periods when he was seriously considering suicide, and had to take stress leave from work. As a result, he went into a dissociative episode and was possibly not in control of his behaviour at that time.”
Thirdly, Dr Bollinger’s opinion is belied by the duration and nature of the offending which I have already described. The offending involved considerable planning and must have required a level of executive function that is inconsistent with the state described by Dr Bollinger.
Fourthly, the offender's own character referees say otherwise. Two of them refer to the offender having been forthcoming with them in his description of his offending, and taking full responsibility for the offences, one even saying he did not suggest that they were committed in a dissociated state.
For those reasons, I am satisfied beyond reasonable doubt that the offences were committed deliberately and with a full appreciation of their unlawfulness. The evidence of the psychologist and other medical material before the Court is, however, relevant to the offender's subjective case, to which I now turn.
I said at the outset of this judgment that the case presents a difficult sentencing exercise. That is because, against the serious nature of the offending to which I have referred, the subjective case is very strong and introduces complexity in that there are matters in tension with the accepted purposes of punishment.
The material before me included a pre-sentence report which reveals that the offender had an unexceptional and indeed happy upbringing. He described his childhood as one in which he did not want for anything, not because his parents were wealthy but because they “did their best”. They went on family holidays. The author of the report described the upbringing as one with pro-social influences.
The offender’s father was a police officer. The offender's brother gave evidence, which I accept, that their upbringing was one where truthfulness and honesty were highly valued. The offender had good schooling and a good career path until the matters leading to the present sentencing exercise. He was married more or less happily and enjoyed good relationships with his three children.
The offender’s brother's evidence was that indeed his life was a happy one until he suffered a motor vehicle accident in 2010. That involved a near death experience which explains the diagnosis of Dr Bollinger, to which I have referred, of post-traumatic stress disorder.
I accept that that diagnosis is probably sound, based not only on Dr Bollinger’s evidence, but on the description from the offender’s brother of the total change of personality which seemed to come about as a result of the accident and in the years that followed.
However, the offender’s experience after that is more complex to analyse from a forensic point of view. One of the claims made by the offender to justify his feeling stressed and overwhelmed at the CSIRO was a claim of bullying. Certainly, it seems he had a dysfunctional relationship with his immediate supervisor. That matter was investigated internally. The material before me suggests that it could not be concluded that there was fault on the part only of the CSIRO. There does, however, appear to be ample support for the offender's complaint that the work he undertook at the CSIRO was extremely stressful.
The complexity arises because it seems likely from the material before me that the offender’s stress and worsening depression was considerably contributed to by the discovery of his offending, the circumstances of his termination and subsequent events.
As a result of being charged, the offender first suffered the failure of his marriage, in 2018. That in turn resulted in the loss of his home and the loss of any real relationship with any of his three children. He has possibly lost the opportunity to retain the employment he currently holds as a part-time bus driver. And of course he has also suffered a significant fall from grace, which is amply documented in the medico-legal material and also in the character references.
His prior good character cannot be doubted. I will not go to the detail of the character references but they speak with one voice as to his being a reliable, honest, happy, outgoing person who would help anyone who sought his help.
However, as noted by the Crown, that presentation no doubt contributed to his capacity to hold a position of trust to the extent that he was able, when he was responsible for fraud control at the CSIRO, to be the author of significant fraud on that very organisation.
On the subject of bullying, I note that one of the medico-legal reports records that part of the offender's complaint was a pattern of bullying “culminating in what he regards as vexatious and false allegations of criminal behaviour,” which the author of the report described as “the primary context to the development of his depressive illness.” That report was dated 14 November 2019. Of course, since then, the offender has admitted his guilt of the very criminal behaviour presumably the subject of those allegations.
There are other subjective factors that point to a strong subjective case warranting a measure of leniency. These are all factors described in the offender's brother's evidence which, as I have indicated, painted a picture of a slow spiralling into the severe depression from which I accept the offender now suffers.
Not long after his motor vehicle accident, he was diagnosed with psoriatic arthritis as a result of which he is on permanent medication that suppresses his immune system. That in turn creates a risk of exposure to COVID-19, to which I will return.
The brother’s evidence also gave a compelling account of the suicidal ideation experienced by the offender over some years. The brother described the steps the family has had to take to watch over the offender against their concerns that he might make an attempt on his own life at any point. The diagnosis of severe depression and probable PTSD gives a basis, in my view, for concluding that a term of imprisonment will be experienced more harshly by the offender.
Finally, the brother gave evidence about the fact that their mother has suffered from a brain tumour which, notwithstanding operative intervention, continues to be a risk to her mortality, the brother describing her as a “ticking time-bomb”. I accept that the probable effect on her of a sentence of imprisonment on the offender will be harsh and will cause great sadness to her and other members of the family.
As I have said, these are all factors as a result of the accumulation of which I accept, without reservation, that a term of imprisonment will operate to make prison a harsher sentence for the offender.
I return to the question of exposure to COVID-19. These proceedings were initially listed for hand-down of sentence on 9 May 2022. However, between the proceedings on sentence and that date, it was reported that there was an outbreak of COVID-19 at the Alexander Maconochie Centre. That prompted me to seek a report from the Commissioner of ACT Corrective Services, Ray Johnson, as to the health and safety measures in place at the AMC to address the COVID-19 pandemic.
I am satisfied on the strength of that report that Corrective Services are taking all steps they reasonably can to mitigate the risk of offenders being exposed to COVID-19. I accept that the offender is more vulnerable to COVID-19 than ordinary members of the community on account of his suppressed immune system.
I note in that context that the Commissioner has recorded two steps that can be taken to mitigate the risk of exposure for prisoners. One is an early release scheme. However, I am told by the Crown that, because these are Commonwealth offences, that scheme is not available to the offender.
The other is a temporary leave scheme. Commissioner Johnson says:
“ACT Corrective Services manages temporary leave due to COVID-19 in accordance with the COVID-19 temporary leave operating procedure. During the COVID-19 public health emergency, I, as Commissioner, may give authority for the temporary leave of a detainee from the AMC for any purpose I consider presents a significant or life-threatening risk to the health of a detainee, is reasonably required to manage the personal risk of or from the transmission of COVID-19 in a correctional centre, or in exceptional circumstances to fulfill care responsibilities…
A decision to authorise temporary leave of a detainee will be for a period determined by me as the Commissioner of no more than three months for health care reasons, and 28 days for compassionate reasons.”
The Crown pointed out in her oral submissions at the deferred proceedings on sentence, when the issue of COVID-19 was first considered, that the offender currently undertakes employment as a school bus driver. In that role, he is protected by the wearing of a mask and a silicone shield between him and the passengers. The Crown nonetheless suggested that the offender’s preparedness to work in that role indicates that his expressed fear of being exposed to the virus in gaol might be approached with some scepticism.
In all the circumstances, I am not satisfied that the offender will be exposed to a higher risk of COVID-19 if he is committed to a term of imprisonment than if he remained in the community. I am also satisfied that steps can be taken to mitigate that risk based on the report of Commissioner Johnson.
The first mandate in sentencing for a Commonwealth offence, specified in s 16A(1) of the Crimes Act 1914 (Cth), is that the Court must impose a sentence that is of a severity appropriate in all of the circumstances of the offence. While I have found this a difficult sentencing exercise because of the strong subjective case presented by the offender, I have reached the conclusion that the only appropriate sentence is a term of immediate imprisonment.
I propose to impose a sentence with a starting point of two and a half years which, after application of a discount of 20 percent, gives a sentence of two years for count 3, the most serious of the three offences.
For the remaining counts, counts 1 and 2, I propose to impose sentences that are served concurrently with that third sentence, so that the total head sentence will be a period of imprisonment for two years. For count 1, I propose to impose a sentence with a starting point of imprisonment for a period of 18 months which, after the application of the 20 percent discount, would be rounded down to 14 months, and the same for count 2.
I am required before I make formal orders to explain the effect of that sentence to the offender. I propose to impose a sentence of imprisonment, the total effective term of which will be two years, and I am required to make a single recognizance release order.
I propose to order that you be released on a recognizance release order after 12 months’ imprisonment.
I also propose, in light of the medical material before me, to complete a prisoner-at-risk form to indicate that in my assessment the offender is at risk because of the suicidal ideation to which I have referred. That form will be completed by me this morning and sent to Corrective Services along with the warrant.
The sentences I have indicated I propose to impose might be thought to be on the lenient end of the scale, having regard to the seriousness of the offending. Particularly, it might be thought that a recognizance release order which reflects 50 percent of the total term entails a measure of leniency.
I indicate that my reason for allowing some leniency in this case, notwithstanding the seriousness of the offending, is the material to which I have referred concerning the offender's mental state combined with his immunosuppressed condition.
I accept as I have already indicated that he suffers from severe depression and probably post-traumatic stress disorder. I also accept that, because of his immune suppressed state as a result of his arthritis medication, the burden of serving a term of imprisonment in an environment where he may perceive he is at greater risk of catching COVID-19 will be oppressive. For those reasons, I have taken the unusual course of fixing a recognizance release order which is only 50 percent of the total sentence.
Mr Wallis, would you please stand? For the three offences to which you have pleaded guilty, you are convicted. For count 1, I sentence you to a term of imprisonment for 14 months. For count 2, I sentence you to a term of imprisonment for 14 months. For count 3, I sentence you to a term of imprisonment for two years. In each case the sentence commences today, 10 June 2022.
I am required by s 19AC of the Crimes Act 1914 (Cth) to fix a single recognizance release order. I direct that the offender be released after serving 12 months of his sentences upon his entering into a bond to be of good behaviour for a further 12 months and giving security in the sum of $10,000.
| I certify that the preceding seventy-one [71] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice McCallum Associate: Date: |
0