CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - theft - pleas of guilty - assistance to authorities - very good prospects for rehabilitation - reduced non-parole period - terms of imprisonment.

1. Joshua Leighton, you have pleaded guilty to 23 counts of theft contrary to s 308 of the Criminal Code 2002 (ACT). Each such offence carries a maximum penalty of 10 years imprisonment, a fine of $150,000, or both.

2. A comprehensive Statement of Facts was tendered at your sentence hearing. For present purposes it is sufficient to note the following. The thefts arise from a fraud against the Public Trustee of the Australian Capital Territory (ACT) (the Public Trustee) whereupon you received monies paid from the Public Trustee into your bank account for purported maintenance work on client properties. You did not undertake that work. The monies were deposited pursuant to an arrangement between yourself and an employee of the Public Trustee, who for present purposes I will identify as UN. You were a tradesperson who had previously conducted a small amount of legitimate work on client properties for the Public Trustee.

3. These thefts occurred between 26 March 2010 and 2 September 2013. The total amount deposited into your bank account as the proceeds of these thefts was $675,734.00. While there were only 23 charges, the Statement of Facts makes it clear that a number of those charges were rolled up charges involving a number of transactions. There were, in total, 116 fraudulent financial transactions and 2 goods transactions involved in these offences.

4. You and UN had an arrangement whereby UN would arrange for payments to be made into your account for work that was never done. False cheque requisitions were raised on numerous occasions by UN and on two other occasions by another employee of the Public Trustee, who I will refer as ET, for work allegedly completed on the properties of various clients whose affairs the Public Trustee administered.

5. Monies were then paid into your account in accordance with those requisitions. You would withdraw that money as cash on the same day that it was deposited. Under your agreement, you gave UN 60 per cent of each such payment and you retained 40 per cent. You have admitted that you did not do any of the work particularised on the cheque requisitions. You and UN used the money to visit brothels, to gamble on poker machines and also for everyday expenses such as bills and rent.

6. UN, ET and another contractor have been charged with offences arising out of these events. They have pleaded not guilty and they are awaiting a trial date. You have given an undertaking to give evidence against them at any trial. Your evidence would relate primarily to UN and the nature of the arrangements between you.

7. You were first charged with these offences in the Magistrates Court on 10 November 2015. On 16 December 2015, you entered pleas of not guilty to all charges and the charges were adjourned for case management hearing. The charges were thereafter adjourned from time to time until, on 18 July 2016, you entered pleas of guilty and the charges were committed to this Court for sentence. Your matter was heard in this Court on 21 July 2016 and ultimately the matter came before me for sentence hearing on 10 October 2016, at which time you adhered to your pleas of guilty.

8. You have a minor criminal history, which for present purposes I will ignore. You are entitled to a degree of leniency based upon your history, although that must be balanced against the period of time during which these offences took place.

9. A PreSentence Report was prepared for your sentence hearing. You are 38 years old and have not had any previous contact with ACT Corrective Services. You completed your formal education to Year 10 level. At the time of preparation of the Report you were in receipt of Newstart allowance and had significant debts due, in part, to a failed business venture.

10. You reported that your parents divorced when you were four years old, but you nevertheless reported a stable childhood. You told the author of the Report that you have a positive relationship with both of your parents. You have an expartner with whom you have three children. There is currently some form of apprehended violence order in force which limits your contact with your expartner and your children.

11. You started using cannabis when you were 14 years old and you reported continued low level use of that substance. You reported that you started using amphetamines two years ago. You also reported consuming approximately 13 standard drinks per week. You are currently stressed in relation to the present proceedings and ongoing child custody issues, but otherwise you did not report any physical or mental health issues.

12. You told the author of the Report that you agreed with the prosecution's Statement of Facts and you did not attempt to minimise your actions. You stated at the time that you were going through financial hardships and the circumstances surrounding the offences "got out of hand".

13. A number of testimonials were tendered on your behalf at the sentence hearing. Your older brother, Scott Leighton, referred to you as conscientious and eager to please family, friends and colleagues. He referred to your commitment to building a career in the building industry. In his opinion, you were negatively impacted by your parents' divorces and you became introverted and anxious. He believes that you did not have the support which would have been provided by a strong role model throughout your childhood and young adult years. He also refers to the negative impact he believes your former relationship with your former partner had upon you.

14. Your brother employed you from 2006 to 2010, during which time he worked very closely with you on a daily basis. He describes you as an extremely hard worker who can quickly learn new skills and apply them with confidence. He would welcome the opportunity to work with you again. He states that you are now in a positive relationship and you are keen to obtain contact with your three daughters and progress with your professional career. As a result of your current relationship your demeanour and attitude have changed for the better. Your brother also says that you have expressed remorse to him about your involvement in these offences on a number of occasions.

15. Jonathon Watkin provided a letter dated 8 October this year. He has known you for approximately 21 years through family and has been a very close friend of yours for the last 5 years. About 15 months ago you informed him of these offences. He then had a very lengthy conversation with you, in which you said that you had not told many friends or family about your situation because you felt so ashamed and embarrassed. Mr Watkin expressed the view that your prosecution has taken a heavy toll on you mentally.

16. He says that prior to being charged with these offences you were a Managing Director of a steel fabrication business, in partnership with others. Because of these events, you agreed to withdraw from your position as a Director, making you unemployed and damaging your reputation. Mr Watkin said that he is aware that at the time of these offences you were experiencing financial hardship and that you had also been a victim of domestic violence. He speaks highly of your personal attributes and expresses the opinion that these offences are out of character.

17. Andrew Watkin provided a letter saying that he has known you from when you were about 10 years old. He has always found you to be a kind hearted generous person who is easy to get along with. He describes you as a hard worker and dedicated to your family.

18. Your aunt, Lyndell Allen, provided a letter saying that you have worked for her as an employee in many of her businesses. She described you as reliable, trustworthy and always goings above and beyond the duties you were required to do.

19. Your mother, Karen Richardson, speaks of the need for your support for your three children. She says that your expartner comes from an extremely dysfunctional home and family and has little support from her family. She says that even at those times when you and your expartner were estranged you have always been willing and available to help with your children. Besides yourself, your mother provides the only family connection and stability for your three children. She says that she is uncertain about her future at the present time as she is on chemotherapy.

20. Your father, Dave Leighton, provided a letter in which he describes you as a follower and not a leader. He says that you have always been a hard physical worker, but your efforts have been undermined by people you trusted. He believes that the present offences are an instance of you being led astray. He described you as having been the victim of abuse and domestic violence for many years in your previous relationship. Your father said that he was completely unaware of your drug taking prior to the present proceedings. He believes that you are truly remorseful for your actions and the harm that you have inflicted on others. He noted that you are currently denied access to your three daughters by your former partner. He further notes that you have recently become engaged to your new partner, and he believes that she is a positive influence that will enable you to move forward in life and assist you in securing contact with your three children.

21. Objectively these are serious offences. The amount involved with respect to some offences, of course, makes them more serious than others, and it would be inappropriate to impose identical sentences on each offence. This is the sort of case where the ability to impose a global sentence for offences occurring as part of a course of conduct would be very useful, but that is not a sentencing option which is available to me in these proceedings.

22. The amount of money stolen in each offence is a relevant circumstance in determining the objective seriousness of that offence, but it is not the only such circumstance. While the modus operandi of these offences was relatively unsophisticated, you engaged in a systematic course of theft of large sums of money from some of the most vulnerable members of our community. Your actions were planned and premeditated. Such conduct can only be described as truly disgraceful. The period over which these offences occurred, the nature of the victims, and the amounts involved, lead me to conclude that these offences fall in a range from the top of the bottom range of offences of this nature, to the top of the middle range.

23. I accept that you are remorseful for what you have done. I am satisfied that at the time of these offences you were going through a difficult period in your life, both personally and professionally. You succumbed to the temptation of using amphetamine-type substances to help deal with your difficulties, but whether that was before or after you commenced offending is not clear.

24. The Crown accepts that you were not the instigator of these offences, but you were, nevertheless, a crucial participant. Your life has changed significantly in recent times, particularly by reason of entering into a new relationship which has provided you with stability. I think it unlikely that you will reoffend, meaning that specific deterrence is not a significant sentencing consideration. I am satisfied that you have very good prospects for rehabilitation.

25. Your pleas of guilty were not entered at the earliest opportunity, but were nevertheless entered at a relatively early time while the charges were still in the Magistrates Court. I will reduce by approximately 20 per cent the sentences which I would otherwise have imposed in order to reflect your pleas of guilty. Your pleas of guilty, I am satisfied, reflect your remorse, but also had a very significant utilitarian value.

26. You have given an undertaking to give evidence against your coaccused in the terms of a statement which you made to police on 17 July this year, if you are called upon to do so. No direct evidence was placed before me to suggest that by reason of your undertaking to give evidence against your coaccused any period that you spend in custody is likely to be served in more onerous conditions than would otherwise be the case. I will, however, take judicial notice of the fact that inmates, who are perceived to be informers, or to have provided assistance to the police, are frequently the subject of assault or intimidation within custodial settings. People such as yourself, who provide information to police in relation to cooffenders, will always be at some degree of heightened risk in custody.

27. The Crown accepts that the evidence that you can give with respect to the coaccused, UN, will be of significance in his trial, and there is no suggestion that you have provided anything less than complete cooperation to the authorities since 17 July 2016. Indeed, as I understand it, the Statement which you signed on 17 July 2016 was in fact commenced in June this year.

28. In addition to the 20 per cent reduction in sentence for your pleas of guilty, I will reduce the otherwise appropriate sentences by 30 per cent in order to reflect your assistance to the authorities, including promised assistance at the trial of your coaccused. The aggregate reduction in sentence will therefore be one of 50 per cent.

29. The Crown has submitted that a period of fulltime imprisonment is the only appropriate sentence with respect to these offences. There is a real need, I accept, in sentencing you to impose sentences that give significant weight to general deterrence. In other words, I must impose sentences designed to deter others who may be minded to commit this type of offence.

30. I accept the Crown's submission that offences of this nature are hard to detect, particularly where they involve a scheme involving a person working within the agency or entity from which the funds are stolen, or managing the funds which are stolen.

31. I note that you have not previously served a term of imprisonment, and you have not spent any time in custody while awaiting sentence. Sentencing in this matter is complicated by the number of offences and the varying amounts stolen. It could be argued that offences which occurred later in the sequence should be considered more serious than those which occurred earlier, but it would be impossible to try to structure a sentence based upon the chronological order of offending. I intend to distinguish between the offences based upon the amounts involved in the individual thefts.

32. I am satisfied that nothing less than immediate terms of imprisonment will be adequate to appropriately punish you for your offending and to act as a deterrent to others who may be minded to offend similarly. It is inevitable, bearing in mind the number of charges and the need to consider totality in arriving at an aggregate sentence, that there will be significant concurrence between the sentences imposed. I will adopt the suggestion made by your counsel in the light of your good prospects for rehabilitation that a lower than usual non-parole period be set.

33. I will use the Magistrates Court charge numbers. On charge number CC2015/8302, I record a conviction and impose a sentence of two years and six months imprisonment commencing today, 4 November 2016 and expiring on 3 May 2019. I have reduced this from five years imprisonment to reflect your plea of guilty and your promise of assistance to the authorities.

34. On charge number CC2015/8303, I record a conviction and you are sentenced to two years imprisonment commencing on 4 July 2017 and expiring on 3 July 2019. I have reduced this from four years imprisonment to reflect your plea of guilty and your promise of assistance to the authorities.

35. On charge CC2015/8289, I record a conviction and you are sentenced to two years imprisonment commencing on 4 September 2017 and expiring on 3 September 2019. I have also reduced this sentence from four years imprisonment to reflect your plea of guilty and your promise of assistance to the authorities.

36. On charge number CC2015/8290, I record a conviction and you are sentenced to two years imprisonment commencing on 4 November 2017 and expiring on 3 November 2019. I have reduced this sentence from four years imprisonment to reflect your plea of guilty and your promise of assistance to the authorities.

37. On charge CC2015/8291, I record a conviction and you are sentenced to two years imprisonment commencing on 4 January 2018 and expiring on 3 January 2020. I have reduced this sentence from four years imprisonment to reflect your plea of guilty and your promise of assistance to the authorities.

38. On charge number CC2015/8287, I record a conviction and you are sentenced to 1 year and 10 months imprisonment commencing on 4 May 2018 and expiring on 3 March 2020. I have reduced this from three years and eight months in order to reflect your plea of guilty and your promise of assistance to the authorities.

39. On each of the charges CC2015/8292, CC2015/8294, CC2015/8304 and CC2015/8306, I record convictions and you are sentenced to 1 year and 10 months imprisonment concurrent with the sentence which I have just imposed on charge number CC2015/8287. I have similarly reduced each of those sentences in the same way that I reduced the sentence on charge number CC2015/8287.

40. On charge number CC2015/8296, I record a conviction and you are sentenced to 12 months imprisonment commencing on 4 May 2019 and expiring on 3 May 2020. I have reduced this sentence from two years imprisonment to reflect your plea of guilty and offer of assistance to the authorities.

41. On charges CC2015/8308 and CC2015/8288, I record convictions, and on each charge you are sentenced to 12 months imprisonment to be served concurrently with the sentence I have imposed on charge CC2016/8296, and I have reduced each of these sentences in the same way that I reduced the sentence on charge number CC2015/8296.

42. On charges CC1015/8300, CC1015/8301, CC1015/8295, CC1015/8305, CC1015/8307, CC1015/8299 and CC1015/8286, I record convictions and you are sentenced on each charge to 10 months imprisonment commencing on 4 September 2019 and expiring on 3 July 2020. I have reduced each of those sentences from 20 months imprisonment in order to reflect your pleas of guilty and offer of assistance to the authorities.

43. On charges CC1015/8298 and CC1015/8297, I record convictions and you are sentenced on each charge to eight months imprisonment commencing on 4 January 2020 and expiring on 3 September 2020. I have reduced each of those sentences from 16 months imprisonment to reflect your pleas of guilty and your offer of assistance to the authorities.

44. Finally, on charge number CC1015/8293 I record a conviction and you are sentenced to five months imprisonment commencing on 4 June 2020 and expiring on 3 November 2020. I have reduced this from 10 months imprisonment in order to reflect your plea of guilty and your offer of assistance to the authorities.

45. The aggregate sentence which I have imposed is therefore one of four years imprisonment commencing on 4 November 2016 and expiring on 3 November 2020. In the light of your lack of relevant criminal history and your good prospects for rehabilitation, I will set a lower than usual non-parole period of 19 months, commencing on 4 November 2016 and expiring on 3 June 2018.

I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.