The Queen v Olivia Grenon
[2013] ACTSC 292
•22 October 2013
THE QUEEN v OLIVIA GRENON
[2013] ACTSC 292 (22 October 2013)
CRIMINAL LAW – Judgment and Punishment – Sentencing – Obtaining financial advantage by deception – Obtaining property by deception – Attempting to obtain financial advantage by deception – Attempting to obtain property by deception
Crimes (Sentencing) Act 2005 (ACT), s 7, Pt 4.2
Confiscation of Criminal Assets Act 2003 (ACT)
Criminal Code 2002 (ACT), ss 44, 332, 326
Markarian v The Queen (2005) 228 CLR 357
R v Campbell [2010] ACTCA 20
R v PM [2009] ACTSC 24
R v Shrestha (1991) 173 CLR 48
R v Verdins (2007) 16 VR 269
R v Way (2004) 60 NSWLR 168
EX TEMPORE JUDGMENT
No. SCC 106 of 2013
Judge: Refshauge J
Supreme Court of the ACT
Date: 22 October 2013
IN THE SUPREME COURT OF THE )
) No. SCC 106 of 2013
AUSTRALIAN CAPITAL TERRITORY )
THE QUEEN
V
OLIVIA GRENON
ORDER
Judge: Refshauge J
Date: 22 October 2013
Place: Canberra
THE COURT ORDERS THAT:
Olivia Grenon be convicted of obtaining a financial advantage by deception on 20 September 2013.
Olivia Grenon be sentenced to fifteen months’ imprisonment, to commence on 21 December 2012.
Olivia Grenon be convicted of attempting to obtain a financial advantage by deception on 12 June 2012.
Olivia Grenon be sentenced to fifteen months’ imprisonment, to commence on 21 March 2013.
Olivia Grenon be convicted of attempting to obtain a financial advantage by deception on 26 June 2012.
Olivia Grenon be sentenced to fifteen months’ imprisonment, to commence on 21 June 2013.
Olivia Grenon be convicted of obtaining property by deception on 15 November 2012.
Olivia Grenon be sentenced to six months’ imprisonment, to commence on 21 April 2014.
Olivia Grenon be convicted of attempting to obtain property by deception between 17 and 21 December 2012.
Olivia Grenon be sentenced to fifteen months’ imprisonment, to commence on 21 October 2013.
A non-parole period of twelve months be set to commence on 21 December 2012 and to expire on 20 December 2013.
Sentencing is always a difficult exercise, but it is more difficult when the relevant facts are uncertain. Olivia Grenon appears before me for sentence for one count of obtaining property by deception, one count of obtaining a financial advantage by deception, two counts of attempting to obtain a financial advantage by deception, and one count of attempting to obtain property by deception. Ms Grenon has also asked me to take into account seven further offences of obtaining property by deception.
The facts of the offences are not in dispute, but the facts of the personal circumstances of Ms Grenon are in some doubt.
Obtaining property by deception is an offence against s 326 of the Criminal Code 2002 (ACT) and renders Ms Grenon liable to a maximum penalty of 1,000 penalty units (that is, a fine of $110,000), or imprisonment for ten years, or both.
Obtaining a financial advantage by deception is an offence against s 332 of the Criminal Code and attracts the same maximum penalty that is, 1,000 penalty units (being a fine of $110,000), or imprisonment for ten years, or both.
Under s 44 of the Criminal Code, the offence of attempting to commit an offence is punishable as if the offence itself had been committed, and so Ms Grenon is liable on the counts of attempting to obtain a financial advantage by deception to the maximum penalties for the offence of obtaining financial advantage by deception, and similarly with obtaining property by deception.
THE FACTS
The facts show a sustained period of deceptive and deceitful conduct where Ms Grenon sought to obtain funds and property from persons and companies and in some cases did so. I shall deal chronologically with the offences to which Ms Grenon has pleaded guilty.
As to the first offence, Ms Grenon applied online for finance to a finance company on 12 June 2012 for purchase of a motor vehicle. She stated that she was the owner of a residence in Kambah and that she was employed at a local private school, both of which statements were false. She provided documents to support those statements, which were also false. Inquiries showed the falsity of the statements and documents and the application was not processed. This was the first attempt to obtain a financial advantage by deception.
As to the second offence, on 26 June 2012 Ms Grenon made, through a motor vehicle dealer, another application to a bank for finance to purchase a motor vehicle, making the same false statements supported by the same false documents. The application was declined and referred to police. This was the second offence of attempting to obtain a financial advantage by deception.
As to the third offence, Ms Grenon made application online on 20 September 2012 for finance to purchase a motor vehicle. She supplied a tax invoice for a mobile phone and a false payslip from a local school. The application was approved and she took possession of the motor vehicle. This was the offence of obtaining a financial advantage by deception.
Ms Grenon then offered the vehicle for sale and a person agreed to purchase it. He was told there was nothing owing on it. His partner made a REVs check and found no notification, assuming that this meant it was unencumbered, then paid Ms Grenon $16,000 by cash and transferred $2,000 electronically to her bank account. There appeared to be no particular offence directed to that activity.
The fourth offence occurred in November 2012, when Ms Grenon advertised on the internet an iPhone for sale and, when the victim of this offence responded, she sent details of her bank account into which the victim paid $420, but Ms Grenon never supplied the iPhone to them. This was the offence of obtaining property, namely obtaining the chose in action, the debt of money to her credit in a bank account, by deception.
As to the fifth offence, Ms Grenon went to the premises of a motor dealer on 17 December 2012 and enquired about purchasing a motor vehicle. She produced a certified copy of a driver licence that had been falsified. When a check showed the falsity of the licence, the purchase did not proceed. This was the charge of attempting to obtain property, namely the motor vehicle, by deception.
THE LIST OF ADDITIONAL OFFENCES
The additional offences on the List of Additional Offences under Pt 4.2 of the Crimes (Sentencing) Act 2005 (ACT) were of a similar type to the fourth offence, that is, on various dates people transferred funds to Ms Grenon's bank account for the purchase of an iPhone, apparently the same iPhone, which was, of course, never delivered.
These offences involved the following payments:
(i) on 29 October 2012: $312;
(ii) on 30 October 2012: $350;
(iii) on 4 November 2012: $360;
(iv) on 5 November 2012: $350;
(v) on 6 November 2012: $390;
(vi) on 13 November 2012: $420;
(vii) on 26 November 2012: $459.55.
Police later executed a search warrant at Ms Grenon’s home and seized $9,900 in cash and some computer equipment in respect of which I later made a restraining order under the Confiscation of Criminal Assets Act 2003 (ACT).
THE PROCEEDINGS
Ms Grenon was arrested on 21 December 2012. She was interviewed by police and stated that she had an identical twin sister who lived in Tuggeranong. Checks with the Department of Immigration and Citizenship showed that information was false. Ms Grenon appeared in court on that day and was refused bail. She has remained in custody since then.
After a number of adjournments, partly due to the need to obtain a Forensic Mental Health report, she entered a plea of not guilty on 27 February 2013. On 25 July 2013, however, she changed her plea to guilty and, declining to consent to the jurisdiction of the Magistrates Court, was committed to this court for sentence. The proceedings were initially docketed to the Chief Justice but because of the vacancy of the office, were re-docketed to me. I heard a plea in mitigation on 8 October 2013.
SUBJECTIVE CIRCUMSTANCES
Employment, education, family and relationship history
Ms Grenon is a twenty-two year old French national. She is the eldest of her parents’ two children, but she has two paternal step-brothers. She has, however, given conflicting accounts of her family.
As well as the helpful Pre-Sentence Report, I had a copy of the Forensic Mental Health report and a report of forensic psychiatrist Dr Danny Sullivan, who is well-known in these courts as providing such reports and which are of great value. I also had reports from the Coming Home Program, a program of Beryl Women Inc, and from Toora Women Inc and the Canberra Rape Crisis Centre. There are significant differences in the personal history given to the authors of each of these reports by Ms Grenon.
She acknowledged to Dr Sullivan that she had been lying to the others, apparently because she felt that if she stopped lying she may be found out as a fake. She stated to him, however, that she recognised that the lies were not helpful to her, as indeed must be the fact.
As Dr Sullivan’s report is the most recent and in the light of this account it may, but cautiously, be relied on for her personal history. It is common to all that her home life had difficulties. Her father abused alcohol and separated from her mother in 1998. It appears that her mother died in a motor vehicle accident in 2010. The family had moved frequently while she was young.
She undertook schooling in France, some of which may have been at a boarding school. I can understand that this upbringing may have forced her to live by her wits, which would have led to some deceitful behaviours and an emotional need to be liked and to seek affirmation.
Ms Grenon appears to have had employment since leaving school. This seems to have included work in child care. Certainly she came to Australia to work as an au pair.
She has had a number of significant relationships, but she ended that with her most recent partner when she was remanded in custody. She currently has no family or other personal support while in custody, though she has access to various agencies.
Use of alcohol and illicit substances
Ms Grenon has no significant alcohol or drug history, though she has used opiates and says she has used cocaine.
Physical and mental health
Since coming to Canberra she had numerous presentations to the emergency Department at Calvary Hospital and the Canberra Hospital, including by ambulance. Medical investigations failed to find any medical cause for her presenting symptoms. She was referred to mental health services. She described in interview visits to mental health professionals since age fifteen. Dr Sullivan stated in his report:
The diagnostic possibilities include that Ms Grenon had genuine anxiety about real or imagined symptoms; that she ‘unconsciously’ sought attention by generating symptoms; and that she could gain from presentation; whether through attention or through exemption from other roles (such as employment) or situations (such as police interviews).
The diagnostic possibilities therefore include malingering (consciously pretending to have symptoms, in order to receive a benefit, including emotional gratification), factitious disorder (the ‘unconscious’ generation of symptoms to be needed or wanted or given attention); anxiety about health conditions, without real concerns; and real conditions. On the information available to me, I cannot determine which diagnosis is correct.
Ms Grenon certainly demonstrates a glib and superficial emotional style, and has been dishonest. I agree that this may represent some psychopathic traits but note that her life otherwise has not shown exploitative, maladaptive or otherwise concerning behavioural traits. However, she minimises her offending and appears somewhat blithely indifferent to it.
In part this reflects her immaturity. In consider[ing] that other interesting aspect is Ms Grenon's apparent desire to be liked, to seek the security of a family or acceptance from others, and the efforts that she has gone in order to achieve such goals. This is likely to reflect not mental disorder but rather emotional need.
He recommended long-term regular psychotherapy.
Criminal history
Ms Grenon has no offending history in Australia and no French offences have been reported.
Remorse
Ms Grenon appears to have little remorse, other than by her pleas of guilty, which are not to be ignored. She has shown some insight into the offending by her admissions, but it is limited and she seems not to appreciate the seriousness of her offending. She seems to feel that an apology is all that is necessary.
Activities completed on remand
Whilst in custody, however, Ms Grenon has completed a number of courses and has clearly taken advantage of what has been offered. These include the Getting Smart Program, Assertive Skills, First Aid, Harm Minimisation courses, an IT certificate, her Construction White Card, a Barista Course, and a Positive Lifestyle Program and Family Skills Program, and is progressing through Hospitality, Visual Arts and Cleaning Operations. She has also commenced some counselling with relationships Australia, which is to her credit and already has completed five sessions.
THE OFFENCES
The offences are serious offences, as the maximum penalties set by the legislature show. See Markarian v The Queen (2005) 228 CLR 357 at 372; [30]-[31]. They deprive people of property or funds that they have worked hard to acquire. They make businesses more security-conscious, which can disadvantage even honest people, at least making access to funds more limited and, by the losses incurred, making the costs of access to such funds greater, again impacting on members of the community more widely.
It was submitted that the way in which Ms Grenon committed the offending was at the lower end of seriousness because they were unsophisticated. I do not entirely accept that. They were relatively naïve offences, but involved the falsification of documents. That these documents could be, and were, easily checked does not make them less serious than had she been able to protect herself from such relatively simple exposure. The premeditation and planning involved, however, does elevate the seriousness somewhat.
While the offence of 20 September 2012 was the most serious, I have some difficulty as how to take into account the loss of funds paid to the purchaser of the vehicle. That was not a part of the offence itself which was pleaded to be an offence against the broker. It seems to me that the offence was serious because they placed Ms Grenon in the position where she could sell the vehicle, though it is ultimately the failure of the check of the REVs system that exposed the purchaser to loss. Ms Grenon did tell the purchaser that the vehicle was unencumbered, a deceitful lie, but that did not sound in any particular offence with which she was charged.
CONSIDERATION
I take into account Ms Grenon’s plea of guilty. It was not made at the earliest time; indeed, she tried to explain away the offences initially, and did plead not guilty when first entering a plea. Nevertheless, she did ultimately plead guilty in the Magistrates Court and that is to be counted, as the Crown very properly accepted, as a relatively early plea.
This court has accepted that, even where the case is strong, as it was here, the utilitarian value of the plea is of significance. This court is of the same view as that expressed recently by the New South Wales Court of Criminal Appeal in R v Way (2004) 60 NSWLR 168.
Ms Grenon is also a youthful offender, having been twenty-one years old at the time of the offences. I have set out, in R v PM [2009] ACTSC 24 at [53], the approach to sentencing youthful offenders and I shall apply that approach. That permits a degree of leniency in the circumstances which I shall afford her.
I note the seriousness of the offences, as I have described above. I take that into account. I also take into account the offences on the list of additional offences that Ms Grenon has signed and which has been filed. I take these into account in the way required by the Court of Appeal in R v Campbell [2010] ACTCA 20 at [42]-[53].
The personal circumstances of Ms Grenon are the more difficult part of the matters to which I must have regard. I have given careful and anxious thought to that. Her chaotic home life, as far as I can be sure of that, has, in my view, been a contributor to her personality which is the genesis of the offending. That warrants some leniency.
Ms Grenon is also a first offender. She comes to the court with no prior convictions. That is some mitigation which I will give her, but it is not the same as positive good character. For her, proof of such may be difficult because of her immigration status, but nevertheless that is all the evidence I have.
Her mental condition is problematic. Given her medical history, there is a problem with her ability to separate fiction from fact and this must have been a part of the mix that led to her offending. It seems to me to be repeated in her inability to appreciate the seriousness of the offending. While the diagnosis is not clear, the evidence is that there is no severe mental illness or dysfunction.
It seems clear to me that she has a mental or emotional disorder, though there has been no diagnosis. It seems to me that this does affect the sentencing. In R v Verdins (2007) 16 VR 269 at 276; [32] the Court of Appeal in Victoria set out relevant principles. It seems to me that the condition suffered by Ms Grenon does reduce her moral culpability as distinct from her legal responsibility.
I note, too, that she is socially isolated in the Alexander Maconochie Centre, with no family support, though she has actively engaged staff and community agencies. She has no friends and her personal relationship with her partner ended when she was incarcerated. That makes the conditions of her incarceration somewhat more onerous.
I note that Ms Grenon is assessed at a low to moderate risk of re-offending, so that specific deterrence is somewhat less a factor in sentencing. Ms Grenon has not been assessed for periodic detention or for a community service condition to good behaviour order because of the likelihood of her deportation. The fact of her deportation is, however, not a matter to which I can have regard: R v Shrestha (1991) 173 CLR 48 at 71.
Having carefully considered the matter and all reasonable sentencing alternatives, I am of the opinion that no sentence other than a sentence of imprisonment is appropriate. I have carefully considered the length of the sentences to ensure that where there are overlapping common elements between any of the offences, Ms Grenon is not punished twice, but that is not especially relevant here. I have also particularly considered whether the sentences should be partly or wholly concurrent because, for example, they are part of the same enterprise, though again that is not particularly relevant, or otherwise.
I have then reviewed the length of that term of imprisonment arrived at and ensured that the principle of totality is respected and that the total sentence is adequate to reflect the criminality of the offences committed, but not more than that, that the total sentence is not crushing, and leaves open the realistic prospect of reform and hope for the achievement of Ms Grenon’s goals when she returns to the community. Where necessary to achieve this, I have adjusted the cumulation or concurrency of the individual sentences.
In assessing the proper sentence, I have had regard to the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT). Because of the mitigating factors, I have deliberately set a non-parole period at the very lower end of the proper range for setting such a period.
DISPOSITION
Ms Grenon, please stand:
1.I convict you of obtaining a financial advantage by deception on 20 September 2013.
2.I sentence you to fifteen months’ imprisonment, to commence on 21 December 2012. Had you not pleaded guilty, I would have sentenced you to eighteen months’ imprisonment.
3.I convict you of attempting to obtain a financial advantage by deception on 12 June 2012.
4.I sentence you to eighteen months’ imprisonment, to commence on 21 March 2013, that is, to be cumulative as to three months on the sentence for the offence on 20 September 2012. Had you not pleaded guilty, I would have sentenced you to eighteen months’ imprisonment.
5.I convict you of attempting to obtain a financial advantage by deception on 26 June 2012.
6.I sentence you to fifteen months’ imprisonment, to commence on 21 June 2013, that is, to be cumulative as to three months on the sentence for the offence of 12 June 2012. Had you not pleaded guilty, I would have sentenced you to eighteen months’ imprisonment.
7.I convict you of obtaining property by deception on 15 November 2012.
8.I sentence you to six months’ imprisonment, to commence on 21 April 2014, that is, to be cumulative as to one month on the sentence for the offence on 26 June 2012. Had you not pleaded guilty, I would have sentenced you to eight months’ imprisonment.
9.I convict you of attempting to obtain property by deception between 17 and 21 December 2012.
10.I sentence you to fifteen months’ imprisonment, to commence on 21 October 2013, that is, to be cumulative as to three months on the sentence for the offence on 15 November 2012.
11.That is a total sentence of twenty-five months’ imprisonment.
12.A non-parole period of twelve months be set to commence on 21 December 2012 and to expire on 20 December 2013.
[His Honour then spoke directly to Ms Grenon]
Ms Grenon, that is the formal order I make and I will explain it to you. I have said that, taking all the matters into account, the seriousness of the offence, but also your personal circumstances, the total sentence should be twenty-five months’ imprisonment. But you may be released on 21 December this year after serving twelve months in jail if the Sentence Administration Board accept your application for parole. Then, of course, it is possible that you will be deported back to France. That is not something over which I have got any control.
I hope this has been a lesson to you. You are obviously a very intelligent and talented young woman and it is a complete waste of your life to spend your time doing these kinds of things. They will inevitably land you in jail and that is not helpful to you or to anyone else. I hope this has been a lesson to you and that in the future you can avoid doing things which you must know are criminal and not appropriate. You may be seated.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 1 April 2014
Counsel for the prosecution: Mr C Wanigaratne
Solicitor for the prosecution: ACT Director of Public Prosecutions
Counsel for the defendant: Ms A Tonkin
Solicitor for the defendant: Darryl Perkins Solicitors
Date of hearing: 8, 16, 21 October 2013
Date of judgment: 21 October 2013
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