R v Welda BACOLOD

[2008] NSWDC 81

CITATION:	R v Welda BACOLOD [2008] NSWDC 81
HEARING DATE(S):	28 March 2008
EX TEMPORE JUDGMENT DATE:	28 March 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	See paragraph [12]
CATCHWORDS:	CRIMINAL LAW - sentence - embelzzlement - obtaining money by deception - offending over a lengthy period of time - breach of trust
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
PARTIES:	The Crown Welda Bacolod
FILE NUMBER(S):	DC 08/11/0048
SOLICITORS:	NSW DPP Christopher Levingston and Associates

SENTENCE

1 HIS HONOUR: Welda Bacolod appears for sentence today on nine separate matters. Seven of those were embezzlement as a clerical servant for which the maximum penalty is ten years imprisonment, and two are obtaining money by deception for which the maximum penalty is five years imprisonment. The offences were committed in a remarkably simple way, but that did not stop the offences being very serious indeed, involving lengthy criminality and a significant amount of money. The offender worked for the Swiss Hotel. She was involved in functions. It was her job to obtain and organise functions at the hotel. Of course, people that had functions at the hotel had to pay for them. All Ms Bacolod did was arrange for many functions to be paid for in cash and she would pocket the cash. She had to make some fraudulent entries in the books of account in order to cover up what she had done, but eventually when a reconciliation was done, it was discovered that she had been committing these offences over a significant period of time. In fact, the offences occurred over seven years and the total amount of money involved was 1.7 million dollars. The offence of embezzlement which covers the year 2006, offence six on the fact sheet tendered before me, involves almost a million dollars.

2 Where did the money go? Well, the evidence suggests that the great bulk of the money went overseas. The evidence was that although the offender may have spent some relatively small amounts of the embezzled money on herself and her family in Australia, the great bulk of it went to her family overseas, primarily in the Philippines. When police investigated this matter, they found some photographs on the offender’s computer. One of those pictured a rather palatial home in a Philippine village. That home, it seems, was paid for by the appellant’s crimes and it is a home in which her children and her family live. It may well be that although the offender’s father is the registered proprietor, the appellant has some financial interest in the home. In any case, it was conceded on behalf of the offender that these offences were not committed out of need but simply greed. It seems that the offender took the opportunity which presented itself to steal money so that she could be generous towards her family. It enabled her parents to build the palatial home in the Philippines and it enabled other members of the family to have things they would not otherwise be able to have. The offender’s conduct certainly had the effect of sending the money out of the jurisdiction where it if difficult, if not impossible for it to be recovered. However, I am satisfied that at least some of the money could be recovered if the offender was to ask her parents, to live in less palatial accommodation for example. No genuine efforts have been made to repay any of the money at all. Of course, repayment would involve hardship but it would be a matter on which the offender would be entitled to rely, if she was prepared to ask her family both in Australia and elsewhere to undergo that hardship in order that she could, to some extent, right the wrong that she had done.

3 The offender is a married woman with four children. They are 17,15, 14 and 12 months of age. She was born and raised in the Philippines where she met her husband with whom she migrated to Australia in 1991. She comes from what was described as a middle class family in the Philippines and described a loving and supportive childhood. When the Probation and Parole Service contacted her sister in the Philippines she was described as a generous person with high moral standards. Two things need to be said, she does not have high moral standards at all, and her generosity only came about because of her criminal activities. At the time of the offences the offender worked, so did her husband. They have recently purchased a cleaning franchise. Her three older children go to Catholic schools which are fee paying. She does have a mortgage, but the evidence certainly established a matter conceded by the offender, namely, there was no significant financial hardship which led to this offence being committed. There was no suggestion of any gambling being involved, any drug use or anything of that kind. This was simply a case where the offender saw an opportunity to take money, and substantial sums at that, which did not belong to her and took it.

4 The offender has no prior criminal history. Prior good character is often of considerable importance when determining an appropriate sentence, but in this case it is of less importance where there are multiple offences extending over a lengthy period of time. It goes without saying that by the time she committed the last of the series of offences in 2007, she did not have prior good character at all. Also relevant to her assessment of her character is her explanation as to why it was that she committed these offences. Her answer was simply that she was tempted because no one was checking. The reason that no one was checking was that she was trusted by her employer. It is a significant factor that these offences all involve a breach of trust, although it has to be, of course, acknowledged immediately that a breach of trust is inherent in almost every case of embezzlement as a clerk. But offences such as these are serious because of the breach of trust which is involved, whether relevant as an element of the offence or not. For this reason, there needs to be a substantial component of general deterrence in any sentence imposed for these matters.

5 The offender pleaded guilty at an early stage and so I will discount the sentence I would otherwise have imposed by about twenty-five per cent to reflect that circumstance. She also cooperated with police and her employer’s accountants in identifying her criminality, that being from an early stage as well. She did make initial attempts to cover up what she had done by fraudulently altering some cheques, but once that was discovered, she seems to have been open with the police and the accountants in admitting what she had done. Her cooperation certainly meant that proving this matter was a lot easier than would have been the case if the matter had gone to trial, so the plea of guilty and the early cooperation did have a substantially utilitarian benefit which I have reflected in the discount I have earlier announced.

6 Much has been made of the offender’s relationship with her baby who is, as I have said, only 12 months of age. He is still breastfed, although not to the extent that she is unable to leave the house for significant periods of time where he is fed solid food and drinks juice. He has not been weaned despite the offender saying she had attempted to do so. However, that circumstance is not such that I consider there should be any delay in sentencing for this matter.

7 No doubt the offender’s children will suffer significantly from the fact that their mother must be punished for what she has done, but that hardship is not exceptional by any means. It is a distressingly common consequence of committing an offence that innocent third parties, particularly children, suffer. For those reasons, the position of the offender’s family has not had any significant impact on the sentence I will impose.

8 The extent of the loss and the extent of the offender’s wrongdoing is considerable indeed. I mentioned before the year 2006. In that year, the offender illegally took almost a million dollars from her employer. It must be remembered also that that money was received tax free. The extent to which the offender has unjustly and illegally benefited and the extent to which her employer has suffered a loss is of course a significant part of determining an appropriate sentence in this case. The loss has been, it need hardly be said, substantial. It is also to be noted that each offence of embezzlement seems to involve multiple acts of criminality, the decision being taken by the prosecuting authorities to divide matters up in a way that did not involve separate consideration to each separate act of embezzlement. Of course, the offences were planned, organised and committed for financial gain.

9 The question of whether the offender is remorseful arises. She said she was sorry when giving evidence-in-chief but when I asked what she meant, she said she was sorry for what she had done because of the impact on her children. That is not remorse as the term is used in s21A of the Crimes (Sentencing Procedure) Act. The offender is unlikely to commit further offences of this kind in the future, if only because she is unlikely to be put in a position where she can commit further offences of this kind. I cannot say apart from that that her prospects of rehabilitation are good. Hopefully the personal deterrent aspect of the sentence I will shortly announce will play its part in enabling the offender to rehabilitate herself. The offender suggests that she voluntarily gave up her criminal activities. The onus of proving that is upon her on the balance of probabilities and I am not satisfied that she has proved that feature. The objective circumstances suggest that the offences only stopped once the appellant was unable to commit the offences, perhaps because she was on maternity leave, but certainly nothing in the objective circumstances suggests the offender did, as she said, stop because she felt guilty about what she had done. To the contrary, I am satisfied that having achieved success after success after success, the appellant had become emboldened to the extent that she thought she could get away with it and that she was going to continue committing these offences whenever she could.

10 One matter I have not mentioned, but should, is that the offender’s time in custody will be harder then it would otherwise have been because of the circumstance that she will be separated from her children, and at least for some period will be separated from her baby. It may be that the mothers and children program will operate such that she can look after the baby in custody, but that is not guaranteed and it is not possible, if it does occur, to happen for some time.

11 I regard the most serious of these matters to be the series of offences committed in 2006, not only because of the amount of money involved but because they represent the culmination of a lengthy period of offending. True it is that there were some offences in 2007 but the amount involved was relatively small. For that reason, what I propose to do is impose concurrent sentences on all matters apart from the offence relating to the period 14 January 2006 to 30 December 2006 and impose upon that matter a sentence which has an element of accumulation. I have been careful not to double count the circumstance of aggravation by regarding the offence in 2006 as the most serious because of it coming after a series of earlier offences and also to justify partial accumulation. I am prepared to find special circumstances in the offender’s favour, this is the first time that she will serve a sentence for imprisonment. So the sentences are as follows:

12 On all offences, apart from the offence of embezzlement by a clerk relating to the period 14 January 2006 to 30 December 2006, the offender is sentenced to imprisonment for a period of three years to date from today, 28 March 2008. That is a fixed term because of the sentence I will announce on the remaining offence. For the offence of embezzlement by a clerk for the period 14 January 2006 to 30 December 2006 the offender is sentenced to imprisonment, I set a non-parole period of two years with a balance of term of two years to date from 28 March 2009. It has been my intention that the sentence will be effectively one of a non-parole period of three years with a head sentence of five years.

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