R v Evans [2017] ACTSC 218

Crimes (Sentencing) Act 2005 (ACT) ss 6, 7 and 10

R v Leighton [2016] ACTSC 534

R v Savanhu [2017] ACTSC 217

1. On 8 July 2016, an indictment was filed in the Supreme Court charging the offender and a co-offender with numerous offences. The matter was set down for hearing on 22 May 2017.

2. A fresh indictment was filed on 17 March 2017. It contains 26 counts of obtaining property by deception. The offender pleaded guilty to all of the counts on that date.

3. The offences occurred between 9 September 2008 and 22 November 2013. Each offence carries a maximum penalty of a fine of $150,000 and/or ten years imprisonment.

4. The offender was born in 1983 in New South Wales. His parents separated when he was two years of age. He lived with his mother and stepfather. The offender's mother became very ill in 2006. His stepfather ceased contact with the family in 2010.

5. The offender is his mother's legal guardian and manages her financial affairs. Ironically, the offender's mother is in the same position of dependence as the victims of the offences.

6. The offender left school at the beginning of Year 12. After trying various occupations, he started his own painting business in 2006. The business has, apparently done well. However, he lost about $40,000 in 2013 when he bought paint supplies for a development project that did not proceed.

7. The offender has a fiancée and a three year old son. He inherited money from his late grandfather which enabled him to buy a house.

8. The offender was a close friend of Mr Timothy McLeod. Mr McLeod worked for the Public Trustee of the Australian Capital Territory (the Public Trustee). Mr McLeod was a Trust Officer, responsible for the management of funds belonging to clients of the Public Trustee. The clients are people who are incapable of managing their financial affairs.

9. Mr McLeod and, much less frequently, Mr Savanhu (another Trust Officer) would create false cheque requisition forms directing the payment of funds to the offender for the purposes of maintenance or other works to their clients' properties.

10. The cheques were made out to the offender, who deposited them into his account. He would then meet with Mr McLeod and provide him with half of the money that had been deposited. A total of $287,373.95 was deposited into the offender's account. This means that his personal share was about $143,687.

11. Although there are only 26 counts contained in the indictment, they represent 101 fraudulent transactions.

12. The offender is also to be sentenced for one offence of cultivating a controlled plant. This charge was transferred to this Court pursuant to s 90B of the Magistrates Court Act 1936 (ACT).

13. According to the Statement of Facts, the offender was cultivating the cannabis plants for his personal use. It provided him with pain relief for his injury to his sciatic nerve.

14. The offender does not have a criminal record. There are references attesting to his previous good character. This is an important point. His pleas of guilty are also relevant.

15. None of the moneys have been repaid, nor has any intention to repay been advanced.

16. Although the money was taken from the Public Trustee, the secondary victims of the offences are persons incapable of managing their own affairs. This offender's culpability is perhaps not as great as that of Mr McLeod, who was in a position of trust. However, if there is a difference between the culpability of this offender and Mr McLeod, it is not significant. The offender knew where the money was coming from.

17. In sentencing this offender, I must take into account the purposes and objects of sentencing, as set out in sections 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT). Section 10 is also very important because it tells the Court not to send a person to prison if there is an alternative.

18. When I sentenced Mr Savanhu this morning, I did not impose a full-time sentence of imprisonment. I suspended his sentence with immediate effect, on condition that he enters into a good behaviour order: R v Savanhu [2017] ACTSC 217. I do not think that this course is open to me here. This offender was involved in a significantly larger number of fraudulent transactions, as a result of which substantially more money was stolen. No alternative to immediate imprisonment was suggested.

19. Although the amount of money involved is less, this case is closer in facts to R v Leighton [2016] ACTSC 534 (Leighton). Mr Leighton stole more than $675,000, although his personal gain was about 60% less than that amount. The offences also involved a large number of transactions. Mr Leighton was sentenced to four years imprisonment with a non-parole period of 19 months. In that case, there were particular matters taken into account which lessened his overall sentence.

20. I think that this offender must also endure full-time imprisonment. The question here is: should there be any distinction with Mr Leighton's sentence? I have already noted that the amount involved is less, which I think is a real point of difference.

21. [Redacted for legal reasons]. Although the number of transactions is similar, this offender's criminal conduct lasted about five years, compared to three and a half years for Mr Leighton.

22. It was said that I should take into account the close relationship between the offender and Mr McLeod. I disagree. I do not see that involvement in a criminal enterprise is less serious because it is done with a friend. [Redacted for legal reasons].

23. Ultimately, I think the period of total imprisonment should be marginally less than in Leighton, primarily because of the significantly lesser sum involved and the offender's previous good character. The individual sentences will be different to those in Leighton, but the intent is to achieve a head sentence a little shorter than in Leighton.

24. The offender's pleas of guilty entitle him to a discount of about 20%.

25. In Leighton, Burns J adopted a quantum-based approach to the respective sentences to be imposed. On one argument, the amount involved in each offence may not be strictly relevant. All of the offences are objectively serious. However, I think some distinction must be made, which I will do on a slightly different basis than that adopted by Burns J.

26. Each of the counts involves a different amount. The amounts range from $1,000 to $47,833. The accumulation of sentences could result in the imposition of an overly long head sentence.

27. To some extent arbitrarily, I will set the cut off amount at $10,000.

28. One matter that does not assist this offender is his apparent lack of remorse and contrition. According to the pre-sentence report:

Mr Evans stated he agreed with the Statement of Facts, however offered justifications and minimised his involvement in the offences...When challenged about the vulnerability of the victims, Mr Evans reported he never met them so he was not aware of the issues.

30. In relation to the charge of cultivating a cannabis plant, the pre-sentence report suggests that the cannabis was "helpful for the treatment of his mother's illness". The correct position, as I have already said, seems to be that the cannabis was for the offender's own use but he contemplated that his mother might benefit from it.

31. The sentences for the offences involving amounts below $10,000 will be concurrent and will involve a period of imprisonment of two years. The sentences for the offences involving amounts in excess of $10,000 will also be concurrent but commence nine months from today. They will involve a period of imprisonment of three years.

32. The sentence for the offence of cultivate a cannabis plant will commence today. The sentence will be for a period of imprisonment of one month.

33. The result will be a head sentence of three years and nine months. The non-parole period will be 17 months.

(a) In respect of count 1 (XO 2017/31052), count 4 (XO 2017/30155), count 9 (XO 2017/30160), count 10 (XO 2017/30161), count 11 (XO 2017/30162), count 12 (XO 2017/30163), count 13 (XO 2017/30164), count 15 (XO 2017/30166), count 16 (XO 2017/30167), count 17 (XO 2017/30168), count 18 (XO 2017/30169), count 20 (XO 2017/30171), count 21 (XO 2017/30172), count 22 (XO 2017/30173), count 23 (XO 2017/30174), count 24 (XO 2017/30175), count 25 (XO 2017/30176) and count 26 (XO 2017/30177), the offender is sentenced to a term of imprisonment of 2 years commencing on 10 August 2017 and ending on 9 August 2019. Each sentence is to be served concurrently.

(b) In respect of count 2 (XO 2017/30153), count 3 (XO 2017/30154), count 5 (XO 2017/30156), count 6 (XO 2017/30157), count 7 (XO 2017/30158), count 8 (XO 2017/30159), count 14 (XO 2017/30165) and count 19 (XO 2017/30170), the offender is sentenced to a term of imprisonment of three years commencing on 10 May 2018 and ending on 9 May 2021. Each sentence is to be served concurrently.

(c) In respect of the charge of cultivate a controlled plant (CC 15/7811), the offender is sentenced to a term of imprisonment of one month commencing 10 August 2017 and ending on 9 September 2017.

(d) The total sentence ends on 9 May 2021.

(e) I set a non-parole period of 17 months to commence on 10 August 2017 and end on 9 January 2019.

I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.