the additional punishment that must be imposed for the Form 1 offence
the crimes were committed over a number of months and only ceased once the defendant's conduct had been detected
the amount of money involved
Source
Original judgment source is linked above.
Catchwords
the objective seriousness of the crimethe additional punishment that must be imposed for the Form 1 offencethe crimes were committed over a number of months and only ceased once the defendant's conduct had been detectedthe amount of money involvedthe serious breach of trustthe importance of general and personal deterrence, denunciation and accountability[2002] NSWCCA 518
FL v R [2020] NSWCCA 114
Markarian v The Queen (2005) 228 CLR 357
Park v The Queen (2021) 273 CLR 303
Judgment (4 paragraphs)
[1]
Judgment
Arabella Del Busso (hereafter the defendant) has pleaded guilty to one offence of larceny by a clerk under s 156 of the Crimes Act 1900 (NSW). The defendant stole $35,785 from the Kogarah branch of a company known as Rheumatology Specialist Care (hereafter the Company) between 25 September 2019 and 6 February 2020 whilst she was responsible for banking patient fees.
The defendant has also admitted to committing another offence of larceny by a clerk under s 156 of the Crimes Act 1900. She admitted taking $16,565 from the Randwick branch of the same organisation in similar circumstances to the first offence. The second offence has been placed on a Form 1 document and is to be taken into account in sentencing for the first offence with the effect of increasing that sentence.
By way of background, the defendant was first employed in September 2019 at the Kogarah branch of the Company. As will become clear, she was also employed at the Randwick branch of the Company. The defendant's role as a receptionist included scheduling patient appointments, taking payment for appointments and banking reconciliation at the end of the day when the practice manager was not working. In November 2019, she was promoted to 2nd in charge under the Practice Manager Ms Sharma (hereafter the Practice Manager). This new role included the duty to deposit the cash takings into the Company's bank account.
The bank reconciliation was done at the end of the day and involved logging into the company's online system called "blue-chip" and running a daily report. This report shows the breakdown of payments made by cash, EFTPOS, cheque, and direct deposits within a single day. The cash and cheques entered on this system needed to match the cash and cheques located in the till at the particular branch for the reconciliation to be complete. Once this was done, the cash and cheques were placed into a deposit bag along with a deposit slip which described the breakdown of what was in the bag. The bag was always sealed. The sealed bags are kept in a locked drawer until the defendant, or the Practice Manager removed them for the purpose of depositing into the company's bank account.
In December 2019, the company changed its policy for making payments and removed cash payments as an option. Cash was not to be accepted from 1 January 2020. The Practice Manager went on annual leave from 24 December 2019 until 3 February 2020. The defendant oversaw banking for the Randwick and Kogarah practices whilst the Practice Manager was on leave.
When the Practice Manager returned from leave, she noticed financial irregularities in the reconciliation of cash amounts received compared to what was deposited into the company's accounts. Minimal deposits had been made. The Practice Manager conducted a full audit of the accounts and noted that a total of $35,785 was missing from the Kogarah practice for the period of 25 September 2019 to 6 February 2020. A total of $16,565 was missing from the Randwick practice between the period of 25 September 2019 and 6 February 2020.
From January 2020, whilst the Practice Manager was on leave, the defendant swapped a number of her shifts so that she could work at the Randwick practice. During this month, there was a large increase in cash payments made by patients through the Randwick practice. The defendant's username was used for the reconciliation at the Randwick practice on 5 days between January 2020 and 6 February 2020. The Practice Manager confirmed with police that on these days the defendant had swapped shifts with the Randwick practice employees. The Practice Manager identified days where there had been increased cash payments made by patients. She contacted 16 patients who had appointments at the Randwick branch who paid cash on the 5 days in January and February. The patients all said that they had been contacted by a secretary who had advised them the EFTPOS machine was not working and to bring cash for their appointment on that day. Police established that the EFTPOS machine was in fact in use that day and was in working order.
In addition, on 6 October 2020, the defendant sent 18 messages through a work computer to patients attending the Randwick practice on that day. The message informed each of the patients that the EFTPOS facility was "down" and to bring $170 cash. The defendant was the sole receptionist working at Randwick on the 6 February 2020.
On 11 February 2020, Company auditors attended the Kogarah practice to conduct a review of the finances and speak to the defendant about the financial irregularities. The defendant denied any knowledge of the missing money. She was suspended from her employment on full pay while the matter was investigated. The defendant failed to attend a prearranged meeting with the auditors and the Company on 13 February 2020.
Police obtained the defendant's Commonwealth Bank records. They showed that between 21 September 2019 to 7 November 2019 the defendant deposited $1930 cash into her account at the Caringbah Commonwealth Bank branch. Between 17 October 2019 and 30 January 2020, she deposited$6755 cash into her account at the Kogarah Commonwealth Bank branch. Between 12 November 2019 and 24 January 2020, the defendant deposited $4850 cash into her account at the Randwick Commonwealth Bank branch. On 7 February 2020, she deposited a final $4280 cash into her account at the Port Cook Commonwealth Branch in Melbourne. In total, a sum of $18,215 cash was deposited into the defendant's account during the time she was employed.
Initially, the defendant's lawyer indicated to police that the defendant would participate in an interview to clear her name but that she was mentally unwell until 16 June 2020. The defendant extended a medical certificate until 14 July 2020. After this time, flight restrictions were in force and the Victorian border was closed due to Covid. On 11 May 2021, detectives from St George attended Melbourne West police station where the defendant was cautioned and served a Court Attendance Notice for the charge of larceny.
The Company, Rheumatology Specialist Care, is seeking compensation for the amount of $35,785.
The starting point in assessing the objective seriousness of any given offence is the maximum penalty since this is the expression of the will of Parliament. In this case, the offence carries a maximum penalty of 10 years imprisonment. In Markarian v The Queen (2005) 228 CLR 357, Gleeson CJ, Gummow, Hayne and Callinan JJ set said at [31]:
"…careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick".
When the offence of larceny of a clerk is dealt with in the Local Court there is a jurisdictional maximum of 2 years imprisonment and/or a fine of 100 penalty units (one penalty unit being $110). However, that jurisdictional maximum has no role to play in determining an appropriate sentence unless the determined sentence exceeds it. This was made clear by the High Court of Australia in Park v The Queen (2021) 273 CLR 303; [2021] HCA 37. As the joint justices put it in at [19]:
"… a jurisdictional limit is not a matter required to be taken into account "[i]n determining the appropriate sentence for an offence" in accordance with s 21A. A jurisdictional limit relates to the sentencing court, not to the task of identifying and synthesising the relevant factors that are weighed to determine the appropriate sentence. To the contrary, the maximum penalty for an offence is a matter that is almost always required to be taken into account to determine the appropriate sentence, including where the maximum penalty exceeds a relevant jurisdictional limit". (emphasis added)
The task of the court is to assess the defendant's conduct against the 10-year maximum penalty which is reserved for the worst case. What the court is required to do is "to fully identify the "facts, matters and circumstances" which bear on the assessment of the gravity of the crime": FL v R [2020] NSWCCA 114 per Wilson J at [60]; R A Hulme and Hamill JJ agreeing.
I now turn to the relevance of the Form 1 document attached to the principal charge. This is a procedural device that is available to defendants. In Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 the Court of Criminal Appeal promulgated a guideline judgment on the issue. Chief Justice Spigelman with whom the other Justices agreed said:
"…although a court is sentencing for a particular offence, it takes into account the matters for which guilt has been admitted, with a view to increasing the penalty that would otherwise be appropriate for the particular offence. The Court does so by giving greater weight to two elements which are always material in the sentencing process. The first is the need for personal deterrence, which the commission of the other offences will frequently indicate, ought to be given greater weight by reason of the course of conduct in which the accused has engaged. The second is the community's entitlement to extract retribution for serious offences when there are other offences for which no punishment has in fact been imposed. These elements are entitled to greater weight than they may otherwise be given when sentencing for the primary offence. There are matters which limit the extent to which this is so. The express provision in s33(3) referring to the maximum penalty for the primary offence is one. The principle of totality is another". (emphasis added)
Later, in Abbas v R [2013] NSWCCA 115, the Court returned to the issue and convened a 5-judge bench. Chief Justice Bathurst said at [22]-[23]:
"Section 33(1) empowers the Court to take the further offences into account where the preconditions in that section and s 32 are met. It is clear from the provisions of s 33(3) that that could lead to an increase in penalty up to the maximum penalty for the principal offence. The existence of these additional offences may demonstrate the greater need for personal deterrence and retribution in respect of the offence charged. This does not mean the Court is imposing a separate penalty for the Form 1 offences.
The fact that the sentence is to be determined by reference to the additional need for personal deterrence and retribution for the offence for which the offender is being sentenced as a result of the Form 1 charges means that the principle of proportionality falls to be assessed by reference to matters which include those additional factors."
In short, the principle of proportionality - that the punishment must fit the crime - falls to be assessed by reference to matters which include those additional factors of personal deterrence and retribution.
In assessing the objective seriousness of a defendants' crime, the courts have identified other factors common to larceny by a clerk and fraud cases. These factors include the amount of money involved in the crime, the length of time over which the offences were committed, and the gravity of the breach of trust involved in the offending. I will expand on each of these factors below.
In these circumstances, for the principal offence, the defendant stole a sum of $35,785. For the offence on the Form 1 document, the figure was $16,565. On any view, the offending conduct involved a large sum of money. These amounts can hardly be described as 'trivial' amounts.
In this case, the facts reveal that the offending conduct occurred between a date range of September 2019 to February 2020. Some of the offending conduct occurred whilst the Practice Manager was on holiday. But the detection of the crime occurred by a review of the Company's accounts, prompted by an investigation by the Practice Manager upon their return from leave, and was the reason why the offending ceased. The conduct did not cease because the defendant realised that what she was doing was wrong, or that she no longer wanted to do it. She was discovered by the Practice Manager and ultimately the Company.
The employer, the Company, placed its trust in the defendant to process payments and bank funds from patient fees. The defendant's conduct was an appalling breach of trust. She used her position to make a substantial financial gain. As the Court of Criminal Appeal said in the decision of R v Mungomery [2004] NSWCCA 450 at [41]:
"The cases in this area also stress the importance of general deterrence. Organisations, be they business or government, cannot operate effectively without placing a good deal of trust in their employees. Opportunities for the abuse of that trust are legion and breaches are often difficult to detect."
The purposes of sentencing of denunciation and accountability referred to in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) are also highly relevant in this sentencing exercise. The defendant must be held to account for the crime and her conduct denounced. The courts have also acknowledged that crimes like ones here involve a serious breach of trust and are usually only able to be committed because of the previous good character of the person who has been placed in the position of trust. See remarks of Gleeson CJ in R v El-Rashid (unrep, 7/4/95, NSWCCA). It has also long been accepted that an abuse of a position of trust is a significant aggravating factor on sentence: R v Pantano (1990) 49 A Crim R 328 at 330.
The degree of planning involved in an offence has long been recognised as a factor relevant to assessing the seriousness of that offence. The defendant went to elaborate lengths to commit the crimes. She told 16 patients that the EFTPOS was not working and to bring in cash. On a separate occasion, she messaged 18 patients and told them to bring cash because the EFTPOS machine was not working. And finally, she applied to alter her working location so that she was at the Randwick office where she was the sole receptionist.
Another relevant factor is whether an offender is the instigator of a fraudulent scheme or stealing or was encouraged by another person. Here the defendant was the sole instigator of the larceny. No one else was involved.
Reparation of a victim can be taken into account as a matter in mitigation where it is voluntary and there has been a substantial degree of sacrifice involved in the repayment. In this case there has been no reparation. No money has been paid back. The Company is seeking an order for compensation.
In some cases, the delay in sentencing is a relevant factor to be considered by the court. It is necessary to balance the effect of the delay on the defendant against the difficulty and complexity of proving the offence and the need for general deterrence. In this case, proceedings were delayed by the COVID shutdown in Victoria. However, after that, the defendant caused a substantial period of delay. This includes being convicted in her absence and making several s 4 annulment applications under the Crimes (Appeal and Review) Act 2001 (NSW).
The defendant eventually pleaded guilty on the day of hearing. According to the guideline judgment on guilty pleas, the timing of the plea entitles her to a 10% discount on sentence. However, it must be said that the utilitarian benefit of the plea was then eroded by over 10 mentions and annulment proceedings. The defendant moved to Victoria after the initial investigation by the Company and then infrequently attended court. On that basis, the court is prepared to attribute only a 5% discount for the utilitarian value of the plea of guilty.
The defendant has no criminal history. She indicated to the author of the Sentencing Assessment Report that she regretted her actions and that they would have negatively impacted her employer: the Company.
The defendant has placed before the court a letter of contrition dated 18 December 2023. She said that her temptations got the better of her and that she acted impulsively. She said that she was suffering financial hardship at the time of the offending. She is aware that she had equitable fiduciary duties which she breached through her conduct. She is genuinely sorry for the crime.
She also relies upon 3 reports authored by psychologist Tim Watson Munro. He opines in the most recent report that the defendant has longstanding symptoms of depression, anxiety, and low self-esteem. He opines that her symptoms have been compounded by the protracted nature of the proceedings. The defendant also relies on a several good character references.
[2]
Determining the Sentence
In the High Court decision of Stanley v DPP (NSW) [2023] HCA 3; (2023) 296 ALJR 107 Justices Gordon, Edelman, Steward, and Gleeson JJ at [59] set out the steps that a sentencing court must take in determining an appropriate sentence. Their Honours said:
"There are three steps to be undertaken by a sentencing court prior to the final order by which a sentence of imprisonment is imposed under the Sentencing Procedure Act, … first, a determination that the threshold in s 5(1), described below, is met, …;second, determination of the appropriate term of the sentence of imprisonment; and third, where the issue arises, consideration of whether or not to make an ICO."
[3]
Has the s 5 Threshold Been Met?
The first step in determining an appropriate sentence involves deciding whether there are any alternatives to the imposition of a sentence of imprisonment. The court must be satisfied that, having considered all possible alternatives, no penalty other than imprisonment is appropriate: s 5(1) Crimes (Sentencing Procedure) Act 1999.
After considering all sentencing alternatives, I find that no penalty other than a sentence of imprisonment is appropriate. The custody threshold is met on the basis of a multitude of sentencing factors which include: the 10 year maximum penalty; the objective seriousness of the crime; the additional punishment that must be imposed for the Form 1 offence; the fact that crimes were committed over a number of months and only ceased once the defendant's conduct had been detected; the amount of money involved; the serious breach of trust; the importance of general and personal deterrence, denunciation and accountability; the degree of planning involved in the commission of the crimes; and finally the fact that the defendant was the sole instigator.
I have given careful consideration to the recent authority of Totaan v R [2022] NSWCCA 75 at [81]-[83], [90]-[91] as it relates to the court's revision of sentencing principles for fraud offences. The effect of this finding under s 5 Crimes (Sentencing Procedure) Act 1999 is that the court will be imposing a term of imprisonment. It is instructive to recall the statement of Simpson J in R v Boughen [2012] NSWCCA 17 at [96] about sentencing in this area of the law:
"The community cannot afford for judges to be squeamish about discharging their duty, however personally painful it may sometimes be."
After having regard to these factors and the other subjective features of the case which include the defendant's lack of prior criminal history and the fact that she has shown a degree of contrition, I determine that the appropriate term of sentence is 20 months.
Turning to the third step as referred to by the High Court in Stanley v The Queen, as to whether the sentence should be served by way of full-time detention or by way of an intensive correction order, the court must apply the Crimes (Sentencing Procedure) Act 1999 on its terms. The defendant is a person who resides in another state, that being Victoria. This is expressly referred to in the Sentencing Assessment Report prepared for the proceedings and in the Court Attendance Notice sent to the defendant's address. Section 69(3) of the Act provides:
69 Assessment of suitability of offender for intensive correction order
(3) The sentencing court may not make an intensive correction order in respect of an offender who resides, or intends to reside, in another State or Territory, unless the State or Territory is declared by the regulations to be an approved jurisdiction.
The State of Victoria has not been declared by the regulations to be an approved jurisdiction. The effect of s 69(3) is that the court is prohibited from imposing an intensive correction order in this case. It is not an available option for the court. Therefore, the sentence must be served by way of full-time imprisonment.
The last step in the sentencing exercise is to determine the non-parole period of the sentence. It is the minimum period of actual incarceration that the offender must spend in full-time custody having regard to all the elements of punishment including rehabilitation, the objective seriousness of the crime and the defendant's subjective circumstances: Power v The Queen (1974) 131 CLR 623 at 628-629.
In this case, I find that a period of 12 months is an appropriate non-parole period.
Can the defendant please stand. For the offence of larceny by a clerk I sentence you to a term of imprisonment of 20 months to date from 13 February 2024 to 12 October 2025 (13/2/24 to 12/10/25). I impose a non-parole period of 12 months to date from 13 February 2024 expiring on 12 February 2025 (13/2/24 to12/2/25) on which date you will be eligible to be released on parole. I have found special circumstances based on your age and need for rehabilitation.
NOTE: On appeal, the District Court reduced the sentence to a fixed term of 5 months imprisonment.
[4]
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Decision last updated: 12 September 2024