R v NQ [2017] ACTSC 317

Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 20 and 33(1)(za)

Bugmy v R [2013] HCA 37; 249 CLR 571

R v Evans [2017] ACTSC 218

R v Leighton [2016] ACTSC 354

Mitchell v R [2006] NSWCCA 72

Siwek v R [2017] NSWCCA 178

Office of the ACT Director of Public Prosecutions (Crown)

1. On 16 January 2017, the offender pleaded guilty to four counts of obtaining property by deception and one count of theft in the ACT Magistrates Court. She was committed to the ACT Supreme Court for sentence.

2. The offences of obtain property by deception are contrary to s 326 of the Criminal Code 2002 (ACT). The offence of theft is contrary to s 308.

3. The maximum penalty for both offences is a fine of $150,000 and/or 10 years imprisonment.

4. All of the offences involve the misappropriation of money. Some of the sums are substantial:

(a) Count 1: $272,434.36

(b) Count 2: $72,547.94

(c) Count 3: $49,892.65

(d) Count 4: $3,400.85

(e) Count 5: $8,600.00

5. The total amount involved is $406,875.80. The offences occurred over a period of nearly three years, while the offender was engaged by the Canberra Police Community Youth Club (CPCYC) as an assistant to the Chief Executive Officer (CEO) and, later, as the Chief Financial Officer (CFO).

6. The misappropriated money belonged to the CPCYC.

7. The offender was born in Victoria in 1970. She has a criminal record but it dates back to 1988 and 1996. I do not see her record as impacting upon the current sentencing process.

8. The offender is an only child who has had a somewhat unstable relationship with her mother. There is, however, some limited continuing contact between them. She has had no contact with her father for about 10 years.

9. The offender is married. There are two children from this union.

10. The offender is diabetic. She requires medication for this condition and also for anxiety.

11. The matter was originally listed for sentence on 3 May 2017. The date was changed to 1 August 2017 to allow the offender to seek medical advice. The matter was then adjourned again to allow for further medical investigation. I was reluctant to grant the adjournment having regard, as conceded by the offender, to the inevitability of a prison sentence. However, the adjournment was not opposed by the Crown, with the observation that it would assist the sentencing process by notifying the Court of any serious medical condition suffered by the offender.

12. When the matter came before me today, a further request was made that I effectively defer sentence because the offender is due to have an endoscopy and colonoscopy on 7 December 2017. It was submitted that, if these tests revealed a medical condition, it would be more appropriate for the offender to commence a prison sentence with a medical treatment plan in place.

13. The offender's health issues have been behind all of the delays in this matter. In my view, the request today is effectively another application for an adjournment, presented in a different manner. I accept that the letter to Dr Bromley of 18 January 2017 was not written by the offender's current solicitors. However, that does not explain the continuing delay in this matter. I note, for example, that the general practitioner did not refer the offender to Dr Bromley until October of this year.

14. I can see no reason why the sentence should not commence today. I am confident that the prison authorities will permit the offender to undergo the planned testing. I am further confident that any suggested treatment can be implemented through the prison health facilities.

15. The offences are serious and the community expects that persons should be promptly punished for their crimes. There has already been over six months of delay. The request for a further adjournment does not provide any certainty as to time. It would depend on the provisional test actually occurring and then on the production of a report.

16. The offender has a gambling problem. The offender's psychologist has recommended that she attend Gamblers Anonymous for support.

17. The report from Ms Gianakis (Exhibit 1) gives a detailed background of a very unfortunate upbringing endured by the offender. There was severe childhood abuse and neglect by trusted carers. She was sexually abused by her stepfather from the ages of nine to 13. Her family did not protect her, nor did it protect the offender's own daughter who was abused by the same man.

18. The psychologist has diagnosed a dissociative disorder, causing the offender to have no memory of many events. She is also unquestionably highly anxious, no doubt at least in part because of the predicament that she now faces. One of the apparent products of the anxiety is that she has uncertain bowel habits. This is one of the reasons why the investigations I have referred to are necessary.

19. The offender attributes her offending to her gambling habit. According to the pre-sentence report, she has little insight into the impact of her criminal actions. She has been assessed as being of a medium to low risk of reoffending.

20. The question of whether a gambling addiction should be taken into account in sentence was recently discussed by the NSW Court of Criminal Appeal in Siwek v R [2017] NSWCCA 178 at [22] - [23]:

Generally speaking, the fact that offences are committed to feed a gambling addiction will not be a mitigating factor on sentence: Johnson v R [2017] NSWCCA 53 at [56] per Bathurst CJ (Johnson and Fagan JJ agreeing) and the authorities cited therein. Even if addiction to gambling explains a fall into serious criminal conduct, rarely can an offender seek mitigation of penalty based upon such an addiction, even when it is pathological: Johnston at [36] citing Assi v R [2006] NSWCCA 257 at [27] per Howie J (Tobias JA and Rothman J agreeing). It has been expressly held that such principles apply equally to cases of fraud to feed a gambling addiction: Johnston at [41] per Bathurst CJ.

The sentencing judge found that the applicant's efforts to overcome his gambling addiction were reflective of his favourable prosects of rehabilitation. That finding was open, and was favourable to the application. A finding to the effect of that propounded by the application would have been erroneous.

21. The primary source for the facts on which I have relied is the agreed Statement of Facts (Exhibit A). The following matters emerge from that document.

22. The CPCYC is a not-for-profit organisation that facilitates interaction between police officers and young people. It is obviously an organisation of great importance and benefit to the community.

23. In 2011, the offender joined the organisation as an assistant to the CEO. In January 2012, she became the CFO. The offender probably did not have the necessary qualifications. She apparently resisted attempts to further her education.

24. In the course of her employment, the offender managed all of the accounts held by the CPCYC. She was authorised to do this on her own and, in some cases, without the need for a second signature. A number of transactions could be carried out online.

25. In early 2015, an investigation of the accounts highlighted the existence of overdue reminders, letters of demand and some suspended and cancelled accounts.

26. A detailed review in February 2015 indicated a number of transfers to a Bendigo Bank account which did not match appropriate payment details. The matter was reported to the police. The police spoke to witnesses and carried out search warrants which revealed the nature and extent of the offender's illegal transactions.

27. Each of the counts (except Count 4) refers to a number of transactions. Count 1 relates to Electronic Funds Transfers by the offender into her own bank account or that of her husband. Some of the transactions were for small amounts but others involved much larger figures. The largest individual transfer was $5,809.10. The scale of the transfers is indicated by the total sum of $272,434.36. There were 155 separate transactions.

28. Count 2 relates to 20 cheque deposits, to the value of $72,547.94, into bank accounts held by the offender.

29. Count 3 relates to 12 Express Deposits made into the offender's bank accounts. An Express Deposit is a deposit of a cheque made with the use of a bank's express system, for example through the placing of cheques in an envelope. The purpose is to avoid depositing cheques through a teller. The total value of the cheques deposited was $49,892.65.

30. Count 4 concerns the deposit of a single cheque to the value of $3,400.85. The cheque was drawn on the CPCYC and made out to the offender.

31. Count 5 is made up of 10 ATM withdrawals from a CPCYC account. The largest amount withdrawn was $1,000.

32. The monies were appropriated by the offender without the permission or knowledge of her employer. On one view, the offender's actions were sophisticated in that she was able to transfer to her own accounts a substantial amount of money.

33. On another view, her actions were clumsy and essentially waiting to be discovered, as soon as proper scrutiny was given to CPCYC's financial affairs. Whatever the case, the facts disclose a sustained attack on the resources of CPCYC. Importantly, each transaction can be viewed as a breach of the trust that had been placed in the offender in her management of the funds.

34. In addition, most of the counts relate to rolled up charges, such that the criminality encompasses more than would be the case in respect of a count reflecting an individual act.

35. None of the monies have been repaid nor is there any apparent prospect of early repayment. The offender has been in employment and, while I accept that there are no doubt other demands on her income, she has made no effort to repay any of the amounts stolen. There is an overwhelming sense in this matter of the offender not having appropriate insight into her offending.

36. Although the Statement of Facts does not confirm the position, I think the reality is that most of the money was taken as a result of the gambling addiction.

37. Courts must take a very serious attitude to offences of this kind, for the purposes of both deterrence and punishment. These offences involved the stealing of money belonging to a charitable organisation which no doubt does have not excess funds and uses what funds it does have for the good of the community. In particular, its attention is directed at developing good relationships between youth and police, a sentiment which is all too lacking amongst many young people.

38. As a general statement, it is important to have regard to the objects of the Crimes (Sentencing) Act 2005 (ACT), as stated in s 6, and the purposes of sentencing, as stated in s 7. I am also particularly mindful of s 10, which tells the Court that an offender should not be sentenced to a term of imprisonment unless no other penalty is appropriate. In this case, that has been conceded. There has been no suggestion of an Intensive Corrections Order being appropriate.

39. In relation to s 33(1)(za) of the Crimes (Sentencing) Act 2005 (ACT), I have had particular regard to the following authorities: R v Evans [2017] ACTSC 218 and R v Leighton [2016] ACTSC 354. These two cases involved fraud on the Public Trustee. Based on the amounts involved, Evans is perhaps less serious than the present offence and Leighton is more serious. The amount that has been misappropriated is not the only indicator of the seriousness of an offence and all cases must be dealt with on their individual facts.

40. Other than the plea of guilty, there is very little reason for leniency in this matter. The amount involved is large, the funds were taken from a not-for-profit organisation, the offending occurred over a period of almost three years and there were many fraudulent transactions involved.

41. In my view, the offences are objectively serious. In Mitchell v R [2006] NSWCCA 72 Latham J said this about fraud cases at [10]:

Of course, the amount of money defrauded is but one factor in the commission of such offences, which bears upon the assessment of the offender's criminality. Other factors, including the length of time over which the offences were committed, whether or not the offender occupies a position of trust, and the sophistication of the method employed to defraud the victim, play a part in placing an offence on the spectrum of offences of a like nature, bearing in mind that the maximum penalty is reserved for the worst class of case.

42. The offender is entitled to a discount for her plea of guilty. I think she should receive a discount of 25%.

43. The prospects of rehabilitation have been described as medium to low.

44. There is a need for a degree of accumulation in the offences, especially between Counts 1, 2 and 3. It is also important to not impose an overly long head sentence. The principles of totality must be applied.

45. My intention is for there to be a head sentence of three years. But for the plea of guilty, each individual sentence would have been consequentially longer and resulted in a head sentence of four years.

46. I intend, however, to suspend the sentences after a period of 15 months, on condition that the offender enter a Good Behaviour Order for the balance of the sentence, including a requirement that she attend to her gambling addiction. I will also make a reparation order in the full amount, noting that it may well need to be paid off slowly by way of instalments.

47. Perhaps compared to similar matters, my approach might be viewed as lenient. However, I have taken into account the offender's upbringing in the manner prescribed by the High Court in Bugmy v The Queen [2013] HCA 37; 249 CLR 571. I am also mindful that the offender's husband's occupation is likely to render her imprisonment more difficult. This is the reason for the anonymisation of the judgment.

(a) In respect of Count 1 (CC 2016/9028), obtain property by deception, the offender is sentenced to 2 years imprisonment, commencing on 27 October 2017 and ending on 26 October 2019.

(b) In respect of Count 2 (CC 2016/9029), obtain property by deception, the offender is sentenced to 2 years imprisonment, commencing on 27 April 2018 and ending on 26 April 2020.

(c) In respect of Count 3 (CC 2016/9030), obtain property by deception, the offender is sentenced to 2 years imprisonment, commencing on 27 October 2018 and ending on 26 October 2020.

(d) In respect of Count 4 (CC 2016/9031), obtain property by deception, the offender is sentenced to 6 months imprisonment, commencing on 27 October 2017 and ending on 26 April 2018.

(e) In respect of Count 5 (CC 2016/9032), theft, the offender is sentenced to 6 months imprisonment, commencing on 27 October 2017 and ending on 26 April 2018.

(f) The head sentence is 3 years commencing on 27 October 2017 and ending on 26 October 2020.

(g) Each term of imprisonment (CC 2016/9028; CC 2016/9029; CC 2016/9030) is suspended on 26 January 2019.

(h) The offender is required to sign an undertaking to comply with her Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 (ACT) from 26 January 2019 to 26 October 2020 on the following conditions:

• (i) That the offender accept the supervision, and obey all reasonable requests, of the Director-General of ACT Corrective Services, or her delegate, for the period of the sentence being suspended; and
• (ii) That the offender attend Gamblers Anonymous or some similar organisation during the period of suspension.

(h) A reparation order is made in the sum of $406,875.80 pursuant to s 20 of the Crimes (Sentencing) Act 2005 (ACT) payable to the Canberra Police Community Youth Club Pty Ltd.

(i) It is recommended that the letter of Dr Jonathan Bromley dated 25 October 2017 be brought to the attention of the Director-General of ACT Corrective Services.

I certify that the preceding forty-eight [48] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Elkaim.