Butler v Regina

Judgment 1BEAZLEY JA: The applicant seeks leave to appeal against the severity of the sentences imposed upon him in respect of four charges of causing an unauthorised computer function with the intention of committing a serious indictable offence, namely stealing, contrary to the Crimes Act 1900, s 308C(1). The maximum penalty for an offence contrary to s 308C(1), which particularises stealing as the serious indictable offence, is imprisonment for 5 years: see the Crimes Act, s 117. 2The s 308C(1) offences formed part of a series of offences, totalling over 300 in all, committed whilst the applicant was an employee of the Commonwealth Bank. The other offences were as follows: 18 charges contrary to s 178BA(1) of obtaining money by deception. The maximum penalty for this offence is 5 years imprisonment. One charge contrary to s 193B(3) of recklessly dealing with the proceeds of crime in the sum of $454,290. The maximum penalty for this offence is 10 years imprisonment. A total of 294 charges contrary to s 178BA(1) and s 308C(1) dealt with pursuant to the Form 1 procedure: see the Crimes (Sentencing Procedure) Act 1999, s 33. 3The applicant commenced employment with the Commonwealth Bank on 25 October 2005 in the Group Security Section. He was initially employed as a temporary employee. He moved to the Direct Banking Section relatively quickly and was employed in a full-time position in January 2007. He was promoted to assistant team leader and was responsible for making decisions and managing staff. 4During the time he worked in the group security section, he was given access to parts of the bank's computer systems which enabled a verification of its client's details. From late 2008, he began to defraud the bank and its clients by assuming client identities and obtaining credit cards in the names of these clients. 5The applicant's conduct came to notice as a result of the bank discovering similar conduct by another person. He was arrested on 5 November 2010. When interviewed by police he made full and frank admissions to the offences with which he was originally charged. As a result of the applicant's conduct, the bank was required to reimburse the client victims of the fraud in the amount of $454,290, being the amount involved in the s 193(B)(3) offence. 6The applicant pleaded guilty at the Penrith Local Court on 7 May 2010. He was remanded to the District Court, where he adhered to his pleas of guilty. He was sentenced by Robison DCJ on 10 September 2009. His Honour imposed the following sentences: (i) On each charge contrary to s 178BA(1) to imprisonment for a fixed term of imprisonment for 3 years commencing on 9 September 2010 and expiring on 8 September 2013. His Honour declined to set a non-parole period because the structure of the sentences to be imposed made it inappropriate. His Honour stated that in each of the matters the Form 1 had been taken into account. (ii) On each charge contrary to s 308C(1) to imprisonment for a non-parole period of 3 years commencing on 8 December 2010 and expiring on 7 December 2013 with a balance of term of 2 years imprisonment expiring on 7 December 2015. (iii) On the charge contrary to s 193B(3) to imprisonment for a non-parole period of 3 years commencing on 8 December 2010 and expiring on 7 December 2013 with a balance of term of 2 years imprisonment expiring on 7 December 2015. 7The total effective sentence was 5 years and 3 months comprised of a total effective non-parole period of 3 years and 3 months commencing on 9 September 2010 and expiring 7 December 2013 with a balance of term of 2 years expiring on 7 December 2015. In imposing sentence, his Honour allowed a 25 per cent discount for the full utilitarian value of the applicant's early plea. 8The applicant was 37 years of age at the time of sentence. His Honour observed that the applicant experienced a very troubled childhood, characterised by physical, mental and sexual abuse at the hands of his father. His mother died when he was 10 years of age. The applicant had developed a serious gambling problem which commenced when he was about 20 years of age. This was accompanied by illicit drug addiction from about the age of 25. 9According to the Probation and Parole Pre-Sentence Report, the applicant attributed his conduct to an attempt to mask the personal pain experienced as a result of his abusive childhood. He believed that his gambling and drug addictions spiralled out of control to the point that he became involved in offending behaviour in order to finance his addictions. However, he eventually became addicted to the financial benefit of his criminal behaviour and began to use the proceeds to purchase personal items and gifts for family and friends. The applicant developed suicidal thoughts prior to his sentence and was referred to the Blacktown Community Mental Health Team, where he came under treatment for what was described as his "tenuous mental health". The probation and parole officer considered that the applicant may require ongoing and long-term support in order for him to deal with the complex life issues affecting him. 10The trial judge accepted that the applicant had an "absolutely horrific upbringing". Notwithstanding that, up until the time of the commission of these offences, the applicant had a steady employment history and he was supported by strong testimonial evidence. His Honour accepted the applicant was remorseful for his conduct. His Honour considered the applicant clearly needed help and rehabilitation and that he would not be able to do that on his own. 11His Honour categorised the applicant's offending conduct as involving a serious breach of trust, not only in respect of the bank but also in relation to its customers. He accepted that the applicant's addictive gambling habit was the essential motivation for his criminal activity. The applicant had offered reparation but his Honour was not able to determine whether that was realistically achievable. 12His Honour took into account the need for general deterrence which he considered "loom[ed] large". In terms of objective seriousness, his Honour considered that the offending was at least in the mid range of seriousness and perhaps towards the high end of the range. A sentence of imprisonment was inevitable on his Honour's assessment. His Honour found special circumstances.