R v Rasavong

The Plea

1. There is no issue the plea of guilty was made at the earliest opportunity. In line with the observations of the Court of Criminal Appeal in R v Thomson; R v Houlten (2000) 49 NSWLR 383 I allow a discount of 25% for the utilitarian value of the plea.

Aggravating Factors

1. Section 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act) sets out a number of factors which, if determined to be present within the offending conduct, are to be regarded as aggravating. It is the view of the Court there are three factors that fall within this consideration.
2. To a limited degree section 21A(2)(d) is relevant. The offender has a prior history of criminal offending behaviour. In 2002 he was convicted of a similar course of dishonest conduct, albeit an offence of lesser gravity and certainly in terms of penalty, one that was arguably minor in terms of objective seriousness. Those matters to one side, his remaining record consists of three convictions for drink driving offences. Given the history of drug abuse and dependency identified in the consultant psychiatrist's report it is not surprising to read that alcohol and poor decision making are also likely to be part of his makeup.
3. The fact of a criminal record does not make his offending in this matter worse. It can be inferred however that when considered in the context of the purposes of sentencing set out in section 3A of the Sentencing Act greater emphasis on retribution, deterrence and the protection of society is warranted. Importantly, as was observed in R v Johnson [2004] NSWCCA 76 (at [29]), despite the gap in offending, the nature of the crimes committed both before and after the gap "could hardly inspire confidence concerning his rehabilitation or the unlikelihood of his returning to crime".
4. The court is also of the opinion that section 21A(2)(k) is relevant. The offender was employed in a position of trust. He was given exclusive access to the computer system of his employer and as the administrator, to the records of clients of Gleneagles Security. Although charged only with the one count he breached the trust of his employer on multiple occasions.
5. Turning to section 21A(2)(n) counsel for the defendant concedes the offending involves a degree of planning. It is submitted that this would be a concomitant of most offences of this type. I agree with that observation in R v Yildiz (2006) 160 A Crim R 218 at [39], where the Court expressed the view that planning can only be taken into account as an aggravating feature where the amount of planning exceeds that which would ordinarily be expected. It is the view of the Court that simply because there is a greater or different kind of expertise required to carry out this offence than one which did not require some expertise of a particular kind, that of itself does not elevate the nature of the planning to a higher degree such that it would become an element of aggravation.
6. Counsel for the defendant in written submissions acknowledged that section 21A(2)(o) was relevant as an aggravating factor, namely that the offence was committed for financial gain. The written submission also asserted that the offence was committed to "raise funds to repay his previous clients". I can find nothing either in the Statement of Facts, the Pre-Sentence Report or in the Psychiatric Report that supports this contention.
7. The Pre-Sentence Report describes an exponential increase in drug use from the breakdown of his marriage in 2015 and almost daily use of methamphetamine until February 2017. It describes his engagement in high risk gambling in an attempt to recoup his loss, attending the casino on a nightly basis. Given the defendant asserts he lost over $6.49 million dollars in an earlier failed venture within which he was not at fault, it appears that any attempt to recoup losses is related to that scenario.
8. The Psychiatric Report (at 6-7) paint a picture of a person who was unable to cope with his own personal sense of loss and bankruptcy, exacerbated by the breakdown of his marriage and who turned to the abuse of drugs and gambling in an attempt to adapt. Although Dr Furst (at 7) speculates that his "gambling and risky trading was probably motivated by his misguided attempts to 'win money' back for his clients", this opinion fails to acknowledge the fact that he had no right to the funds in the first place and that it is equally likely that his gambling endeavours were no less motivated by the hope that he would win more than the funds he fraudulently acquired and would keep the difference.
9. So far as the acknowledged spending on his drug habit is concerned, it is not possible to suggest that this would in any way assist in repaying his clients. It is also noteworthy that for someone who had that intention, he could have stopped taking the money at any time between the first and twentieth action on the accounts. He did not. I find that the conduct is aggravated by the pursuit of financial gain.

Subjective Factors

1. The defendant is 37 years of age. He was 34 at the time the offence was committed. He is the father to two children aged five and two and a half. He separated from his wife in 2016 and is currently living with his mother. He is said to have regular contact with his children. Until recently he was engaged in gainful employment as an account manager with a wealth advisory company.
2. The defendant has tendered a letter of apology for his conduct.
3. Dr Furst diagnoses the offender as suffering from an adjustment disorder. This appears to be referable to the significant financial losses he suffered, and other clients suffered, at the hands of failed companies, together with the social opprobrium he experienced from friends and family on top of his marriage breakdown.
4. Dr Furst also expresses the opinion the defendant has an addictive disorder and a substance use disorder. The latter is related to his ongoing abuse of illicit substances and alcohol. The former relates to his compulsion to gamble. Despite the presence of these factors the defendant is described as a reasonably intelligent individual who exhibits no evidence of a major mental illness.
5. Turning to issues to be taken into account in mitigation of penalty it is submitted that the defendant has displayed contrition and remorse and that this is demonstrated by his admissions to police and in his letter to the court. It is true that the defendant readily admitted his guilt. This occurred some 8 months after he ceased to be employed with his former employer and after a detailed and expensive forensic audit within Gleneagles Securities identified the methodology and extent of his fraud. Allowing for those facts remorse emerged only at the time of charging and against a background where so far as proof of the conduct leading to the fraud is concerned, he was the only person who could have engineered the taking of moneys entrusted to his employer company. I accept there is remorse to be acknowledged but it is to be understood in the foregoing context and mitigates penalty perhaps to a lesser extent than in circumstances where more fulsome and persuasive evidence of contrition and remorse is forthcoming.
6. I do however agree with the defendant's legal representative that the offender's record is not significant. I agree that the entry for like conduct in 2002 is too long ago to establish a pattern of behaviour. The penalty imposed for that offence is extremely low and nothing is put before the court to suggest that the events occurring in the defendant's life around the time of this offence were present in 2002.
7. A majority of the entries on the defendant's record occurred after the commission of this offence and are of a different character being confined to the commission of traffic offences, albeit of some seriousness. In that context the Court notes that the offender is on a bond under section 9 of the Sentencing Act imposed on 21 February 2017 and which does not expire until February 2019. The sentencing for this matter does not constitute a breach of that bond.
8. It is submitted that in acknowledgment of section 21A(3)(h) of the Sentencing Act the offender has good prospects of rehabilitation. This is based on the assertion that he no longer has either a drug problem nor is he engaged in any gambling activity. It is commonplace in courts to establish the inference of cessation in drug abuse by providing a series of up to date and historical drug testing outcomes. None have been forthcoming and in that context the Court is invited to take his assertions on trust. To do so would necessarily be guarded. Noting his conduct as reflected in his criminal antecedents since offending it is possible to infer that he may have simply exchanged one form of abuse for the abuse of alcohol and that his attitude to compliance with the law remains problematic.
9. If there is an impetus for rehabilitation it is to be better found in his concerns for his two children than in the consideration of anything persuasively positive in his antecedents.

The Sentence

1. Sentence cannot be passed in this matter without taking into account the purposes of sentencing set out in section 3A of the Sentencing Act. In so doing it is obvious that general and particular deterrence are significant factors in matters involving a breach of trust.
2. In R v Pont (2000) 121 A Crim R 302 at [43] the Court said: "…where there are breaches of trust by employees, particularly involving large or substantial sums, involving systematic dishonesty attended by planning and some sophistication, general deterrence requires at least usually or in the absence of special features, that there be substantial sentences of imprisonment".
3. The rationale behind an approach consistent with general deterrence is explained in greater detail in R v Pantano (1990) 49 A Crim R 328 at 330: "Those involved in serious white collar crime must expect condign sentences. The commercial world expects executives and employees in positions of trust, no matter how young they may be, to conform to exacting standards of honesty. It is impossible to be unmindful of the difficulty of detecting sophisticated crime of the kind here involved, or of the possibility for substantial financial loss by the public. Executives and trusted employees who give way to temptation cannot pass the blame to lax security on the part of management. The element of general deterrence is an important element of sentencing for such offences".
4. Pantano involved 90 counts of larceny as a servant over a 9 month period resulting in the misappropriation of $417,000, of which some was recovered, leaving a loss of $270,000. The offender received a 6 year sentence for each offence with a non-parole period of 4.5 years. In R v Mungomery (2004) 151 A Crim R 376 at [40]-[41] the Court reaffirmed that: "The amount of money involved in premeditated deception is an important, and the period of time over which offences are committed a relevant, factor in determining the extent of criminality".
5. The amount of money involved in Mungomery was slightly in excess of $1million dollars. He received an overall sentence of 5 years with a non-parole period of 3 years 3 months.
6. In R v Mato; R v Rusu (1999) 109 A Crim R 121, which involved the theft of $476,500 of which $350,000 remained unaccounted, the sentence was 6 years imprisonment with a non-parole period of 4.5 years. In R v Carr [2002] NSWCCA 434, in which a sentence of 4 years with a non-parole period of 2 years was imposed, the amount of moneys involved was $321,666 of which $85,600 was later refunded. On appeal the Court of Criminal Appeal said the sentence imposed was appropriate for that offence.
7. I have referred to these cases not simply because they involve issues of principle in relation to the approach on sentence but because they offer a counter balance to statistics and sentencing examples provided by counsel for the defendant.
8. As is commonplace counsel for the defendant submitted a selection of JIRS statistics and some instances of sentences from Justice Link for offenders with varying backgrounds and ages who have been sentenced over a 2 year period for this type of offence. Sentences imposed overwhelmingly comprise sentences of imprisonment to be served by way of an Intensive Correction Order. The antecedents of the offenders were varied however there was no indication given regarding the amounts of moneys involved or the manner in which the offences were committed. Whilst information from both the JIRS data base and Justice Link is informative it is not determinative. Further, the obvious selectivity in the latter cases is to be contrasted with the range of sentences identified in the JIRS statistics which disclose the unsurprising result that full time imprisonment is applied far more often for this type of offence than an Intensive Correction Order. That outcome is consistent with the line of authority identified earlier.
9. As was observed in Kelsall v R [2017] NSWCCA 240 at [61]: "Whilst prior decisions and sentencing statistics are helpful when they assist in identifying a range or pattern of sentences for a particular offence, each case must be considered in the light of its own facts. No two cases are the same and there is no single correct sentence. Consistency in sentencing practice is achieved by consistency in the application of principle and not by numerical equivalence".
10. Against that background it could reasonably be argued that the sentences imposed in the appellate decisions referred to suggest not just that full time imprisonment reflects the application of principle to objective seriousness, but that in the context of this matter the appropriate penalty is one that is beyond the capacity of the Court to impose within its limited jurisdictional sentencing ceiling.
11. Whilst the Court's jurisdiction is limited by statute the principles set out in Doan regarding judgment of the objective seriousness of an offence remain pertinent.
12. Counsel for the defendant concedes the section 5 threshold has been crossed by the defendant. Section 5 of the Sentencing Act directs a Court not to sentence an offender to imprisonment "unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate". Satisfaction is not to be predicated on a concession by the defendant's legal representative that the section 5 threshold, in their opinion, has been crossed. The ramifications of accepting such a concession as a default basis for sentencing is unwise. The court may come to the conclusion after considering all relevant factors that it agrees with the concession made by counsel but the decision is one that falls to the court alone and must be made without regard to the concession by the defendant's legal representative even where the concession is, on the face of it, reasonable.
13. The amount of money taken is significant. General deterrence along with denunciation and retribution has prominence in matters of this nature. Such is also the case with the impact of the crime on the victims. I do not lose sight of the fact that the amount of money removed from his employer's account is not only considerable, it remains outstanding with no reasonable suggestion or evidence that it is likely to be repaid in the short, medium or longer term. As a consequence the loss impacts not just on the account holders but likely also on the finances and reputation of his former employer. This is a reality that is not to be ignored.
14. Having weighed in the balance those subjective factors set out in section 21A(3) that are favourable to the defendant in mitigation of penalty, including the discount for the utilitarian value of the plea, I come to the view that the level of moral culpability in the commission of the offence falls above the mid-range. Affected as it is by the section 21A(2) considerations and the purposes for which the crime was committed I find there is no alternative to the imposition of a sentence of imprisonment.
15. With due acknowledgment to the principles set out in R v Zamagias [2002] NSWCCA 17, having firstly determined that no other sentence than one of imprisonment meets the circumstances of the proceedings it falls to the court to determine the length of the sentence. When that is done the court is then required to determine the manner in which such sentence is to be served.
16. It is the view of the Court that the sentence appropriate to the objective serious and level of moral culpability for this offending, after taking into account the mitigating factors, is one of 2 years and 6 months. This exceeds the jurisdictional limit of the Court. It would also effectively remove the alternatives of Intensive Correction Orders and Home Detention orders from consideration. Section 68(1) of the Sentencing Act limits application of Intensive Correction Orders to sentences of imprisonment of 2 years or less. Section 79 of the Act limits sentences to be served by way of Home Detention to sentences not exceeding 18 months.
17. Although counsel for the defendant has submitted that either of these options may be appropriate the fact that the Court has determined a sentence beyond the general applicability of either alternative but is constrained by the jurisdictional limit does not in my view re-activate their respective applicability. It remains my view that even had I come to the view that a sentence of lesser duration was warranted the need for general deterrence and denunciation together with the impact of the crime on the victims and the community justify a sentence of full time custody. As an aside for completeness; it is not appropriate in sentencing to adjust a sentence to bring it within the parameters of a legislative option if the conduct and circumstances would not otherwise justify such an outcome.
18. By reason of the jurisdictional limitation the defendant is the beneficiary of the decision by prosecution authorities to leave these proceedings in the Local Court when an alternative with access to the full range of sentencing options was available. It does however follow that the inability to impose a sentence considered otherwise appropriate affects the approach to setting the non-parole period and the additional term.
19. In this matter there are issues for consideration alongside the determination of the relevant period of imprisonment. They engage part of the submission by counsel for the defendant to the effect that if a sentence of full time custody is imposed then the Court should find there are special circumstances pursuant to section 44(2) of the Sentencing Act warranting a departure from the statutory ratio between the minimum and additional terms.
20. Counsel identified six bases upon which such a conclusion could be reached. They are: 1. Mr Rasavong's early guilty plea 2. It being his first time in custody 3. The separation from his two young children 4. His good prospects of rehabilitation 5. His mental health 6. The benefit of an extended period of supervision to assist him with his mental health issues, relapse prevention with respect to his drug and gambling addictions.
21. I do not consider the timing of his plea as relevant to the issue of special circumstances. The defendant will receive a benefit for the utilitarian value of his plea. Applying such a benefit to affect the standard ratio seems to me to be an invitation to double counting.
22. The fact that this will be the defendant's first time in custody is relevant but not of itself determinative. Where there are other circumstances that may be taken into account then it will be part of the consideration which, when added to those other factors, might warrant a finding of special circumstances.
23. The separation of the defendant from his children is of course an emotive circumstance. However, hardship to third parties is only relevant in exceptional circumstances. Turning to the issue of rehabilitation although I have already commented on this area when considering part of the background to the sentence. It is in my view relevant to acknowledge the nature of the defendant's addictive reality in relation to drugs, whether it be drugs or alcohol judging by his offending subsequent to this matter.
24. Drug and gambling addictions are both recognized areas in relation to which necessary caution must attach to any suggestion of self-treatment or early abstinence in either area. This is an area that would ordinarily be addressed within a parole period. In this matter the parole period if the statutory relationship was applied, would be relatively short such as to cause the court some concern that participation in rehabilitation programmes would be little more than tokenistic. Dr Furst's observations are to the effect that treatment of the offender's mental health issues and his addictive behaviours is likely to take some time. I agree.
25. It is not in the interests of the community and arguably does not meet one of the purposes of sentencing, namely rehabilitation, to create an artificial environment in which the Court has little confidence in terms of its likelihood of success. This does not mean the overall sentence should be reduced to accommodate this single issue but it does require the court in my view to weigh the objective of rehabilitation in the balance with other factors on the issue of special circumstances. This also addresses the remaining issues raised by counsel which are in reality part of the mix and not amenable to separate consideration.
26. Taking all of those factors into account in combination I am persuaded to the view in this matter that for the purposes of section 44(2) of the Sentencing Act special circumstances are established such as to justify a departure from the statutory ratio between the non-parole period and the additional term. The variation in the non-parole period will not however be of such significance that it does not otherwise adequately reflect the need for punishment commensurate with the seriousness of the offending.
27. The defendant is convicted and sentenced to a term of imprisonment which consists of a non-parole period of 15 months and a total term of 24 months to date from today. The defendant will be eligible for parole on 29 August 2019. The balance of the sentence will expire on 29 May 2020.
28. If released on parole the defendant is to be supervised by Community Corrections. Whilst on parole the defendant is to undertake rehabilitation programs in relation to drug and alcohol addiction and gambling addiction. A copy of the report of Dr Furst regarding available options for treating his gambling and substance abuse issues as well as attending to his mental health issues is to accompany the warrant committing the defendant to prison.
29. Had this matter been dealt with before the District Court, the court upon conviction could order the defendant to pay compensation for the loss in the sum of $396,183.78 together with an additional sum of $58,796.10 being the costs of the forensic audit leading to the identification of the fraud and its extent. The total figure there is $454,979.88. Regrettably the legislature has decided that a court exercising summary jurisdiction cannot make an order for compensation in excess of the civil jurisdiction limit of $100, 000. The defendant is formally ordered to pay part compensation in the sum of $100,000. The Court notes he may be proceeded against in a civil jurisdiction regarding any or all moneys outstanding. The Court further notes the assertion that $30,000 of the first sum has been paid. If that is accepted by the victim then formal acknowledgment of that sum should be provided to the Court. Judge Henson Chief Magistrate 30 May 2018

Amendments 10 October 2018 - Amendment to paragraph 57 regarding the amount of compensation ordered and commentary on the Court's jurisdictional limit DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 October 2018