DPP v Appleton [2025] ACTSC 527

1. Justin Appleton stands to be sentenced for two groups of offences, the first being offences of dishonesty committed against his previous employer; the second being justice offences committed in his attempts to avoid or delay being sentenced for the dishonesty offences.

2. The offender pleaded guilty to the dishonesty offences in the Magistrates Court. This would ordinarily result in the Court reducing his sentence by 25% to reflect the utilitarian value of the pleas. The justice offences were also admitted in each case soon after they were committed. However, consideration of the appropriate reduction for each sentence is complicated here by the need to consider the additional work imposed on the criminal justice system by the commission of those offences. Accordingly, it will be necessary to return to that issue after my discussion of the relevant facts.

Circumstances of the dishonesty offences

3. The offences against the employer are two offences of theft contrary to s 308 of the Criminal Code 2002 (ACT), which carries a maximum penalty of 10 years’ imprisonment, and an offence of burglary contrary to s 311 of the Criminal Code, which carries a maximum penalty of 14 years’ imprisonment. Each offence carries a fine as an alternative penalty. However, leaving aside the fact that the offender has no capacity to pay a fine, that would not be an appropriate penalty in the circumstances of this case. The offences plainly warrant the imposition of sentences of imprisonment and that is not disputed by the offender.

4. The offender was employed by Flight Centre Travel Limited as a sales consultant, commencing in February 2019. His duties included selling travel packages and receiving and processing payment from customers.

5. The first theft offence is a rolled-up charge reflecting eleven instances of “cash skimming” from the business. Those offences were committed over a period from late October 2019 until 16 December 2019, when the offender resigned. Cash paid by customers was receipted and stored in a secure place in the premises to which the offender had access. His modus operandi was to take the cash from the draw, destroy the cash receipt and replace it with a receipt for payment by a different means. In the first two instances, the offender replaced the cash receipt with a BPay receipt. While the agreed statement of facts does not explicitly say so, it may be inferred that those receipts were forged by the offender. He later instead provided American Express (Amex) receipts that I also infer were forged. Flight Centre has not received payment for the eleven transactions purportedly receipted in that way. The total amount stolen in the eleven cash-skimming offences was $22,197.16.

6. After he resigned, the offender continued to access the premises and steal cash. He did that at least six times between January 2020 and April 2020. Those further thefts are reflected in the second theft charge. The offender’s unauthorised access to the premises when he committed those thefts is reflected in the burglary charge. Each of those is also a rolled-up charge.

7. The offending came to an end, not as a result of any decision by the offender but because, in May 2020, he was seen entering the premises on a Saturday by another Flight Centre employee. A review of CCTV footage showed grainy images thought to be of the offender. At that time, the Flight Centre did not open on Saturdays due to the COVID pandemic. The Flight Centre reported the matter to police. An internal audit identified that $17,718.56 had been recorded as having been received but not banked during the period of the burglaries. The Flight Centre then reviewed the transactions conducted by the offender while he was an employee and identified the eleven cash-skimming offences.

8. The offender was interviewed by police and made full admissions to those offences. In relation to the cash-skimming offences, he told police he would conduct the transactions in the early morning or late afternoon when colleagues were not there. He said he put the payments through as Amex transactions as he believed it would take longer for those to be processed, so that there would be more time before the funds were identified as missing. He said he believed he would eventually be discovered but did not care at the time because he was in a vulnerable emotional state which impaired his decision-making. In relation to the burglaries, he admitted responsibility for the offences and admitted that the person depicted on the CCTV footage was him. He explained that, in his vulnerable state, he had turned to gambling and that this had become an issue in November 2019 and started to get “really out of control” in January and February 2020. I accept that the offender’s motivation for the dishonesty offences was to sustain his problematic gambling, which I accept is a form of addiction. I also accept that this kind of risk-taking behaviour was probably causally linked to some extent with the offender’s history of trauma.

9. The Flight Centre honoured its agreements with the customers whose payments were stolen; it was the company that was left out of pocket. The offender has commenced repaying the amount owed by instalments. He has made 192 payments since June 2020, leaving a balance owed to the Flight Centre of $19,815.72. He has made no payments since December 2024. He does not oppose a reparation order for the outstanding balance.

Circumstances of the justice offences

10. The justice offences are one offence of perverting the course of justice contrary to s 713(1) of the Criminal Code, which carries a maximum penalty of 7 years’ imprisonment and one offence of perjury contrary to s 703(1) of the Criminal Code, which carries a maximum penalty of 7 years’ imprisonment. While each offence also carries an alternative penalty of a fine, that would not be an appropriate penalty here, for the reasons stated in respect of the dishonesty offences. The justice offences are also rolled up offences and are inextricably linked with the prosecution of the dishonesty offences.

11. The criminal proceedings for the dishonesty offences were commenced in the Magistrates Court in late 2022. The proceedings were adjourned a number of times before the offender pleaded guilty on 27 March 2023. A pre-sentence report and ICO assessment were ordered and the matter was listed for sentence on 11 July 2023.

12. On 20 June 2023, the offender sent an email to the Court stating that he had been admitted to the Royal Adelaide Hospital ICU and was awaiting surgery on his back. In support of an application for an adjournment, he attached four documents including a purported letter from “Orthopaedics SA”, a purported letter from the Intensive Care Unit at Royal Adelaide Hospital and a purported letter from the Royal Flying Doctor Service. Each of those documents was false. The adjournment was granted in court on 26 June 2023. In that way, the course of justice was perverted. The sentence hearing was rescheduled for 11 December 2023.

13. In November 2023, a month before the December hearing date, the offender sent a further email to the Court stating that he had been readmitted to hospital due to complications from his previous back surgery. He provided a further three false medical documents to support that claim. The hearing was again vacated, this time by an order made in chambers, and the proceedings were listed for sentence on 8 April 2024.

14. On 8 April 2024, the offender did not appear in person. His partner had evidently provided a further medical certificate to the Court in advance of that date. Legal Aid sought leave to withdraw as his solicitor and that leave was granted. The offender appeared by audio video link at about 2:30pm. He confirmed that he was seeking an adjournment on medical grounds. He said he had just recently been discharged from hospital and was due to have a third operation on his back. The magistrate asked whether he was happy to confirm the truth of what he had said an oath. He said he was.

15. After the offender had taken the oath, the magistrate said, “so now you are subject to that oath, Mr Appleton, and there are obviously important consequences that flow if the information that you tell the Court is not true and correct”.

16. The offender gave sworn evidence that he had been discharged from the Calvary Hospital two days earlier and was at home awaiting confirmation of a date for further surgery from his surgeon, whom he identified as Dr Lee. He sought an adjournment on that basis. He stated that the medical certificate had been provided to the Court by his partner at his request and that he had obtained it from Dr Lee when Dr Lee visited his home on 16 March (a Saturday). He stated that the medical certificate was not fake and that if he had been physically well enough to be in Canberra he would have been there to have the matter resolved. That evidence was false.

17. Under cross-examination from the prosecutor, the offender was warned of the terms of s 338 of the Criminal Code, which creates an offence of giving false or misleading information to the Territory. He confirmed that the information he had provided to the Court was true.

18. The following day, the offender evidently relented. He sent an email attaching copies of the two medical documents most recently provided to the Court and stated that he had obtained those documents from the Internet for a fee of $500 paid in Bitcoin. He also admitted that he had lied to the Court under oath and said he was willing to accept the punishment that would come along with that.

19. Dr Lee provided a statement to police in which he confirmed that he is a spine surgeon. Unsurprisingly, he said he does not conduct home visits or appointments. I imagine few spine surgeons do. Dr Lee said he has never had the offender as a patient and confirmed that he had not signed the documents put forward in his name by the offender.

20. The matter next came before Magistrate Campbell on 29 May 2024. Her Honour declined to dispose of the matter summarily because the total amount stolen exceeded $30,000: cf s 375(3)(b) of the Crimes Act 1900 (ACT). Accordingly, the offender was committed to the Supreme Court for sentence.

21. The matter was listed for sentence hearing in the Supreme Court on 23 September 2024. However, on 7 August 2024, the offender asked the Court to vacate that date to seek another ICO assessment. The listing on 23 September 2024 was vacated and the matter was instead listed on 28 January 2025 before Baker J.

22. On 24 January 2025 the offender sought an order in chambers to vacate that sentence date due to “a medical condition”. The application was made by email to the judge’s associate and supported by two medical certificates dated 20 January 2025 purportedly under the hand of a Dr Christopher Watson. Dr Watson is indeed the offender’s general practitioner. However, he later confirmed to police that the documents in his name provided by the offender were not authentic. In the meantime, the sentence listing had been vacated by the Registrar.

23. The matter was relisted for sentence hearing on 26 February 2025 before Taylor J. On 19 February 2025, the offender provided a medical certificate by email dated 18 February 2025 stating that he was unable to work from 18 February 2025 to 30 April 2025. There is no evidence as to the authenticity of that medical certificate and accordingly I have not taken it into account against the offender as a further instance of dishonesty. However, it did not provide an adequate basis for failing to appear. He did not appear in person when the matter came before her Honour. He appeared by telephone, as he had before in the Magistrates Court. The solicitor then on the record for the offender sought and was granted leave to withdraw from acting for the offender as he had been having difficulties obtaining instructions. Justice Taylor warned the offender that wanting to obtain legal advice would be an insufficient reason for an adjournment on the next occasion, given that two solicitors on the record had withdrawn from acting in the matter due to having difficulties obtaining instructions from the offender. Her Honour noted that, had the offender not appeared by telephone, she would have issued a warrant for his arrest that day.

24. The matter was next listed for sentence on 8 May 2025 before Justice Loukas-Karlsson. However, her Honour was unwell at that time and accordingly I reallocated the matter to myself. That was to be the sentence hearing for the dishonesty offences but only the first mention of the justice offences.

25. On 3 May 2025, the offender sent an email to the Court stating that he was unable to travel to court due to “a medical condition”. He provided a medical certificate from Dr Watson stating that he was “unable to work from Friday, 2 May 2025 to Sunday, 11 May 2025 due to a medical condition.” That certificate was genuine but misleading, as I will explain.

26. On 7 May 2025, my associate wrote to the offender stating that, if he was to be excused from appearing in person on 8 May 2025, he was required to file and serve an affidavit sworn or affirmed by him identifying the nature of the medical condition and the reason it was such as to prevent him from appearing in person, together with a report from a medical practitioner confirming that information.

27. Later that day, rather than providing a report from Dr Watson, the offender sent the following documents to my associates: (i) a medical certificate dated 7 May 2025 from a Dr Lokaj stating that the offender had a “medical condition” and would be unfit for work from 7 May 2025 to 9 May 2025; (ii) a “medical letter” purportedly also signed by Dr Lokaj explaining that the offender had fallen from a retaining wall and injured his back and leg and that he would require 14 – 21 days to recover; and (iii) an affidavit sworn by the offender stating that he had fallen from a retaining wall and injured his back and leg.

28. The medical certificate from Dr Lokaj was genuine but the “medical letter” was not.

29. The offender did not appear on 8 May 2025. Mr Masters of counsel appeared as agent for the offender’s new solicitor, Mr Kernaghan. I stood the proceedings over to 9 May 2025 and warned that, if the offender did not appear in person on that day or provide evidence from a medical practitioner explaining his condition and confirming that he was unable to travel, I would issue a bench warrant.

30. The offender was also due to appear before the Magistrates Court on 8 May 2025 charged with seven offences arising from his provision of false medical documents to the Magistrates Court. Those charges have been replaced by the rolled-up charge before me.

31. The offender did not appear on 9 May 2025. On that date, the prosecution called Dr Watson to give evidence. He confirmed that the offender is a patient at his practice and that he had signed the medical certificate dated 2 May 2025 certifying the offender to be unable to work from Friday, 2 May 2025 to Sunday, 11 May 2025 inclusive “due to a medical condition”. Dr Watson said the offender told him that he had had a fall that day and was suffering from back pain and tenderness. Dr Watson thought it unwise for the offender to work for that period. He stated that the offender had sought the certificate for work, not for court. He considered that the offender would have been able to travel to Canberra by aircraft. After hearing Dr Watson’s evidence, I issued a warrant for the offender’s arrest. A warrant was also issued by the Magistrates Court for the justice offences.

32. The offender was arrested in South Australia on 12 August 2025 and extradited to the Territory. He appeared before me on 15 August 2025. I revoked his bail that day. He has been in custody in the Territory since 14 August 2025. He pleaded guilty to the justice offences in the Magistrates Court on 18 September 2025. He cooperated in having those matters fast-tracked and committed to this court so that he could be sentenced for all matters on 28 November 2025.

33. On 25 November 2025 the offender wrote to Mr Kernaghan, Legal Aid and the Court seeking an adjournment on the basis that he had attempted to contact Mr Kernaghan on numerous occasions without success. He provided a list of 33 attempts to contact Mr Kernaghan and stated that he had lost faith in his representation. He purported to withdraw instructions on that basis. Mr Kernaghan subsequently contacted the Court to confirm that he remained instructed in the matter and that the offender’s concerns had been addressed. At the outset of the hearing, I asked Mr Kernaghan whether he had in fact been contacted by the offender on the occasions alleged. He responded that he had not. That apparent further attempt to delay the sentence proceedings is not part of the prosecution case and accordingly I have not considered it for that purpose. It does, however, suggest a need for the Court to be cautious in considering the offender’s claims to have rehabilitated himself. I record the Court’s gratitude to Mr Kernaghan for his professionalism in keeping the matter on track, notwithstanding his client’s unfounded allegation against him, so that the offender could finally be dealt with for these offences.

Objective seriousness of the offences

34. All of the charges are “rolled-up” charges, meaning they are based on multiple offences charged as one. The fact that such charges include “more than one episode of criminal conduct” is a consideration that “will magnify the objective gravity of the offence” and may also have a bearing on the issues of accumulation and concurrency: R v De Leeuw [2015] NSWCCA 183 at [116] (Johnson J, Ward JA and Garling J agreeing at [1] and [188]).

35. The offender accepts that the charges are serious and that the threshold for imposing a sentence of imprisonment has been crossed, that is, that I would be satisfied having considered possible alternatives that no other penalty is appropriate: s 10 of the Crimes (Sentencing) Act 2005 (ACT).

36. Factors relevant to an assessment of the objective seriousness of the theft offences are the motive for the theft, the extent and value of the property taken and whether the stolen items were of sentimental or utilitarian value such that they will be difficult to replace: DPP v Monaghan [2024] ACTSC 183 at [18] (Taylor J).

37. In the present case, the offences were motivated by the offender’s need for funds to support his self-destructive gambling addiction. The amount stolen was almost $40,000 and involved at least 17 separate episodes of criminal conduct. To his credit, the offender has made numerous instalments to repay that amount to his former employer, but almost half of the amount stolen remains unpaid. The property stolen was not of sentimental value. The offending involved a degree of forethought and planning, particularly in the use of the purported American Express receipts, which the offender thought would delay the discovery of the offences.

38. In respect of the seriousness of the burglary offences, the prosecution relied on the decision of the New South Wales Court of Criminal Appeal in R v Ponfield [1999] NSWCCA 435; 48 NSWLR 327 at [48] for its list of relevant features. Such lists can be helpful, so long as the limits of their use are understood. The usefulness of the decision in Ponfield in the Territory is limited for several reasons. First, it was a “guideline judgement”. The limitations of such judgments were later considered by the High Court in Wong v R [2001] HCA 64; 207 CLR 584. Secondly, it was a New South Wales guideline judgment, reflecting guidance for sentencing in New South Wales based on New South Wales sentencing practices. Where s 33(1)(za) of the ACT sentencing statute, the Crimes (Sentencing) Act, requires this Court to have regard to “current sentencing practices”, it should be understood to refer to current practices in the Territory. Thirdly, there is an infelicity of expression in the judgment in Ponfield which is potentially misleading. The factors listed at [48] of that decision were described as those which should be regarded as enhancing the seriousness of the offence. Grove J prefaced the list with the following remarks: A court should regard the seriousness of [an] offence contrary to s 112(1) of the Crimes Act as enhanced and reflect that enhanced seriousness in the quantum of sentence if any of the following factors are present.

39. However, the factors listed include that “the offence is committed whilst the offender is at conditional liberty on bail or parole” and that “the offender has a prior record particularly for like offences”. As noted elsewhere in the prosecution submissions in the present case, a prior criminal history might disentitle an offender to leniency, and even point to the need for a sterner sentence within a range, but it cannot operate as an aggravating feature or “enhance the objective seriousness” of the offence. The distinction is important because, in accordance with the principle of proportionality, the sentencing judge’s assessment of objective seriousness marks the outer bounds of any possible sentence. The offender in the present case does have a prior history for dishonesty offences and has served terms of imprisonment for such offences. That has constrained the leniency I might otherwise have been prepared to afford to him on account of his vulnerability at the time he committed the offences.

40. I emphasise that, in the present case, the prosecutor did use the list drawn from Ponfield appropriately, to identify matters relevant in determining the appropriate sentence. However, with respect, it was not necessary to go to a New South Wales guideline judgment for that purpose.

41. The burglary offences involved repeated entry into commercial premises at a time when no one else was, or was likely to be, present. Because the offender used passcodes known to him by virtue of his prior employment, and entered the premises by stealth, the offences involved no violence, direct confrontation or damage to property. There is no evidence of any individual victim who suffered particular harm. Conversely, the offences involved a significant breach of trust, as did the theft offences. Noting that the offender is charged with rolled-up offences reflecting seventeen separate incidents of theft and about six separate incidents of burglary, I would assess the dishonesty offences as being at the mid-range of objective seriousness.

42. As acknowledged by the offender, the justice offences are of greater objective seriousness. The offender repeatedly provided false documents and lied both to the Magistrates Court and to this Court. His motive for lying is probably a factor that reduces the level of seriousness. His campaign of dishonesty in his dealings with the courts could only defer the inevitable. He did not seek, by his lies, to achieve a different outcome in the proceedings. As submitted on his behalf, he was not seeking to procure an acquittal, undermine a trial or cause an innocent person to be implicated or convicted. In that respect, the offence of perverting the course of justice is less serious than the offence I dealt with in the matter of DPP v Kader (No 6) [2023] ACTSC 363. If anything, the offending here amounted to a series of acts of self-sabotage. On the other hand, the dishonesty with the Court and even in the face of the Court was deliberate and ongoing. It involved the repeated forgery of documents, securing the assistance of another person (the offender’s former partner) and innocent intermediaries, and frank lies on oath.

43. The offender submitted that the securing of adjournments caused inconvenience but did not “permanently derail the administration of justice”. So much may be accepted. However, in a small court such as this, every hearing day is precious. At a time when the Court is listing sentencing proceedings well into the new year, it can be concluded with confidence that the time wasted by the offender’s conduct delayed not only his own sentencing but that of others who could have been ready to proceed on dates reserved for him. I accept that, unlike the offence in Kader, the offending did not involve pressuring a vulnerable witness.

44. But for the element of self-sabotage and the absence of any more sinister motive for the offences, the extent of the offender’s dishonesty in the face of the Court would warrant classifying these offences as being very serious indeed. In my assessment, the fact that the principal result of the offender’s conduct was to sharpen the sword of Damocles hanging over his own head is a factor that reduces its objective seriousness somewhat. I would assess the justice offences as being slightly above the mid-range of objective seriousness.

Circumstances of the offender

45. The offender did not give evidence at the proceedings on sentence. His subjective case was put before the Court primarily in the form of pre-sentence reports together with character references from his sister, his mother and two friends. There is also an intensive corrections order assessment which reports that the offender is not suitable for an intensive correction order as he resides in South Australia. The most recent pre-sentence report assesses him as suitable for a community service work condition. However, I do not consider a community-based order to be appropriate in the present case, having regard to the seriousness of the offences and also because, with great respect to the author of the report, I would have little confidence that the offender would comply with such an order having regard to his history of avoidant behaviour concerning his punishment for these offences.

46. The offender is 39 years old. He was born in South Australia and was one of four children. He reported a predominantly positive upbringing, albeit marred by bullying at school. In her character reference, his sister reported a less positive experience of childhood. She wrote, “growing up, our childhood was not easy, neither of our parents worked, therefore we did not have much. We love our parents very deeply, unfortunately though our father did drink excessively every night and our mother was suffering from ongoing mental health issues.”

47. The sister also describes trauma suffered by the offender when their father died in the offender’s presence after suffering from lung cancer for over a year. The letter states that the events of the father’s death took “a traumatic toll” on the offender’s mental health as he felt it was his responsibility to support their mother with her own mental health issues and financially. I am satisfied on the balance of probabilities that the offender’s gambling addiction, which in turn prompted his offending, was a form of escape to which he resorted as a way of dealing with past trauma. That is confirmed by the pre-sentence report, which states that the offender’s problematic gambling behaviours developed when his father died and escalated in 2018 following his relocation to Canberra. The report states that the offender experienced feelings of isolation which led to his using gaming machines as a distraction from negative thoughts.

48. The offender told the author of the pre-sentence report that he has successfully completed a gambling program and has received treatment from a psychologist and counsellor at Relationships Australia. In addition, he has voluntarily sought a banning order for all gambling products across several postcodes in South Australia for a period of 10 years. There was some evidence in the offender’s pre-sentence report to suggest that he has nonetheless recently engaged in a lesser form of gambling, being a gaming app in which points can be bought. On the other hand, the fact that he has been able to repay about half of the amount stolen from his former employer suggests that he is not in the grip of a gambling addiction to the extent that he previously was.

49. The offender has a good work record and enjoys continuing support from his family and his long-term partner. Although that relationship has recently ended, the partner remains supportive and plans to assist the offender to reintegrate into society upon his release from prison.

50. I accept that the offender has some remorse for his conduct, as indicated by his repayments. However, noting the nature of addiction generally and gambling addiction in particular, my assessment of his prospects of rehabilitation is guarded. His repeated acts of dishonesty in respect of his sentencing proceedings do not augur well for a future honest life if he does not actively engage with social support services.

51. I acknowledge that the character references provided on behalf of the offender speak with one voice as to his being a kind, generous and supportive brother and friend. I accept that he plainly has some very lovely qualities.

52. However, I saw a different side of the offender in his correspondence with my chambers, in which he claimed at one point to have lodged a formal complaint with the Attorney- General about this matter and also to have raised the matter with A Current Affair, adding that he was planning to contact a federal member of Parliament as well. He wrote, “I will take this as far as I can because I believe this is really unfair on myself it’s not my fault I have injured myself and can’t travel to Canberra”. All of that, of course, was untrue.

Purposes of Sentencing

53. Each of the purposes of sentencing is important here. Punishment, deterrence, accountability and denunciation are obvious purposes in the circumstances I have described. The offender accepts that the Court must consider both general and specific deterrence. It is recognised in the authorities that general deterrence is of particular importance in offences of the kind seen here. The theft from the offender’s former employer was relatively easy and was made possible only because of the trust placed in him, which he betrayed. The justice offences similarly require that significant weight be given to general deterrence and indeed warrant condign punishment. Reduction for the pleas of guilty

54. Section 35(3) of the Crimes (Sentencing) Act permits the Court to impose a lesser penalty (including a shorter non-parole period) than it would otherwise have imposed if the offender had not pleaded guilty to the offence. That power is qualified by s 35(4), which provides that, in deciding any lesser penalty, the Court must not make any significant reduction for the fact that the offender pleaded guilty if, based on established facts, the Court considers that the prosecution’s case for the offence was overwhelmingly strong. In the present matter, I consider the prosecution’s case for all offences to be overwhelmingly strong. Section 35(4) can operate harshly where, notwithstanding the existence of an overwhelmingly strong case, an offender’s plea nonetheless has significant utilitarian value. However, in the present matter, any utilitarian value of the offender’s pleas of guilty to the dishonesty offences was entirely eradicated by his campaign of dishonesty and obfuscation reflected in the justice offences. Furthermore, in respect of the justice offences, having lied on oath and perverted the course of justice by obtaining adjournments as a result of his lies in the Magistrates Court, the offender repeated that conduct in this Court. In that respect the utilitarian value of his pleas to those offences was reduced.

55. In the circumstances, I do not consider it appropriate to reduce the head sentences on account of the guilty pleas. However, I do propose to reflect the offender’s pleas of guilty in the non-parole period, which will be fifty percent of the total sentence. In fixing a shorter non-parole period than might otherwise have been the case, in addition to the pleas of guilty, I have also had regard to the offender’s current poor mental health and his need for supervision and support whilst on parole to assist him to returning to a pro-social life and to address his gambling addiction.

Current sentencing practice

56. The prosecution provided a table of comparable cases for the dishonesty offences referring to the following cases: (a) DPP v Singh [2024] ACTSC 202; (b) DPP v Librando [2024] ACTSC 100; (c) R v Snowden [2022] ACTSC 186; (d) R v QU [2019] ACTSC 155; (e) R v Morris [2017] ACTSC 358; (f) R v Diamond [2015] ACTSC 60; (g) R v Foley [2001] ACTSC 109; and (h) R v Kennedy [2021] ACTSC 80.

57. The decision in R v Snowden [2022] ACTSC 186 at [50] in turn contains a useful summary of comparable cases of employee theft (including the decision in Morris). The range suggested by those cases (undiscounted) is imprisonment for a period of between 12 months and 3 years but with a measure of leniency in the manner of serving the sentence, many cases involving either suspension after a relatively short term or, in one case, an order that the sentence be served by intensive correction in the community. Each of the cases to which Mossop J referred in Snowden involved the theft of a greater sum than in the present case. Conversely, the second theft offence in the present case is more serious as it involved a second bout of offending committed by returning to the premises after the offender had resigned. In saying so, I am mindful of the need not to double count the aspect of unlawful entry, which is an element of the burglary offence.

58. For the justice offences, the comparable cases identified by the prosecution were: (a) DPP v Kader (No 6) [2023] ACTSC 363; (b) R v White (No 4) [2022] ACTSC 79; (c) R v Smith (No 2) [2022] ACTSC 246; (d) R v EN [2020] ACTSC 302; (e) R v Holliday [2015] ACTSC 222; and (f) R v Zanatta [2014] ACTSC 338.

59. None of those decisions is truly comparable to the circumstances of the justice offences in the present case. The offender referred to some New South Wales decisions, but care must be taken in considering those, as the maximum penalty there is double what it is in the Territory. The offender also referred to the decision of Loukas-Karlsson J in DPP v Wickes [2023] ACTSC 296, which concerned an offence of attempting to pervert the course of justice in the context of a bail application. The present offences are more serious, involving numerous incidents of criminal conduct, the repeated use of trusted intermediaries and significant waste of the resources of police, the DPP and the Court.

60. Conversely, leaving aside the prolonged period of offending, I consider these offences to be less serious than the circumstances dealt with in my decision in Kader, where the offender attempted to persuade his former wife to lie to cover for his perjury in a previous trial for an alleged sexual assault on another woman during the course of the marriage.

61. It is recognised that justice offences are inherently serious due to the systemic harm to the institution of justice. However, it cannot be said that the present offences secured any real advantage for the offender; on the contrary, in the result, all that he has achieved is to prolong his own anxiety and expose himself to greater punishment.

62. In all the circumstances, for the dishonesty offences, I propose to impose sentences of imprisonment which, with some concurrency, will give a total sentence of two years. The sentence for the second theft offence and the burglary offence will be entirely concurrent to reflect their connectedness. For the two justice offences, I propose to impose sentences of imprisonment which, with some concurrency both with each other and with the dishonesty offences, will add a further two years, giving a total sentence of four years. I propose to fix a non-parole period of two years.

Orders

63. Justin Appleton, please stand: (1) For the first offence of theft (CC2022/7032), you are convicted. I sentence you to imprisonment for a term of 12 months commencing on 12 August 2025 and expiring on 11 August 2026. (2) For the second offence of theft (CC2022/7049), you are convicted. I sentence you to imprisonment for a term of 18 months commencing on 12 February 2026 and expiring on 11 August 2027. (3) For the offence of burglary (CC2022/7043), you are convicted. I sentence you to imprisonment for a term of 18 months commencing on 12 February 2026 and expiring on 11 August 2027. (4) For the offence of perverting the course of justice (CC2025/4932), you are convicted. I sentence you to imprisonment for a term of 2 years commencing on 12 August 2026 and expiring on 11 August 2028. (5) For the offence of perjury (CC2025/4974), you are convicted. I sentence you to imprisonment for a term of 2 years commencing on 12 August 2027 and expiring on 11 August 2029. (6) I fix a non-parole period of 2 years commencing on 12 August 2025 and expiring on 11 August 2027. (7) Pursuant to s 19(3) of the Crimes (Sentencing Act), I order you to make reparation to the Flight Centre in the sum of $19,815.72. I certify that the preceding sixty-three [63] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice McCallum. Associate: Date: