R v Riordan [2015] ACTSC 26

Legal Aid ACT (Offender)

1. Keryn Riordan, you had entered pleas of guilty to two charges, the first being a charge contrary to s 326 of the Criminal Code 2002 (ACT) that, between 5 July 2012 and 24 January 2013, you did by deception dishonestly obtain property, namely a thing in action to the value of $46,869.76 belonging to BSM Hotels Pty Ltd with the intention of permanently depriving that business of the property (CC14/8533).

2. The second charge is one contrary to s 308 of the Criminal Code 2002 (ACT) alleging that between 1 January 2013 and 14 February 2013, you dishonestly appropriated property, namely cash to the value of $6,000.00 belonging to BSM Hotels Pty Ltd with the intention of permanently depriving that business of that property (CC14/3289).

3. Pleas of guilty were entered to those charges in the Magistrates Court on 4 September last year, on which date you were committed for sentence to this Court. I note that you had earlier indicated a plea of guilty with respect to the charge of dishonestly appropriating property on 4 June 2014. At that time, there were other charges pending against you, howeversubsequent to negotiations between your legal representatives and the office of the Director of Public Prosecutions, those other charges were withdrawn and the charge of dishonestly obtaining property (CC14/8533) was substituted. As such, I am satisfied that each of the pleas of guilty that you entered in the Magistrates Court and to which you have adhered in this Court were entered at a very early time. As such, you are entitled to a significant reduction in the appropriate sentence with respect to these matters. I will reduce the sentences that I would otherwise have imposed by 25 per cent to mark your pleas of guilty. Not only do your pleas of guilty reflect, I am satisfied, a degree of remorse on your behalf, they also had significant utilitarian value. I will return to the question of remorse in due course.

4. I have before me a Statement of Facts which was tendered by consent. I do not propose to recite here the facts with respect to each of the offences. It is sufficient to note that the offences essentially occurred between July 2012 and February 2013, so over a period of about seven or eight months. With respect to the charge of dishonestly obtaining property by deception (CC14/8533), the money the subject of that charge was appropriated from your then employer through six different transactions, each involving a significant appropriation, the least of which was the first transaction which involved just over $5,000.00 and the largest of which was a transaction on 28 September 2012 involving a sum of just over $9,000.00. The $6,000.00 which is the subject of the charge of dishonestly appropriating property (CC14/3289), was, as I understand it, appropriated in one sum.

5. I note that you are 43 years of age and you have a limited prior criminal history. That criminal history is, in my opinion, irrelevant for present purposes. You have a previous conviction recorded against you from January 1990 at the Blacktown Local Court in New South Wales for an offence of receiving, forwhich you were fined $250.00. First, you have given an explanation as to how that offence came to occur before me today and I accept that evidence; and secondly, it is clear from the fine or penalty which was imposed that it was not considered to be a particularly serious example of that type of offending. I also note that that charge of receiving had occurred at a time when you were 19 years old.The other matters which are shown on your record, in my opinion, are not relevant to sentencing with respect to these matters.

6. Whilst today you appear before me with respect to two offences, in reality it was the one course of conduct. I take into account the fact that the evidence demonstrates that you had a dysfunctional childhood. You were adopted at an early age. I am satisfied that you were subject to physical and sexual abuse after you had left your adopted home and you were residing with your sister and her partner until at the age of 16, when you left that home to live in a refuge. You left school in year 11 after becoming pregnant. You did not, as I understand your evidence, complete your HSC but you subsequently completed tertiary education. You have in the past been employed and, in fact, at the moment, you are currently employed fulltime. I note that you do not have a significant income.

7. I accept, based upon the evidence that you gave and also the contents of the Pre Sentence Report and the Forensic Mental Health Report that have been put before me that you have been subject to significant stress over a long period of time. You have had contact with mental health services over a number of years although at the present time, the Forensic Mental Health Report indicates that there is no diagnosable mental health condition present.

8. Part of the stress to which you have been subjected has been due to your relationships with your family. After the childhood abuse ceased, you then entered into a relationship with a man, which became an abusive relationship. You recently separated from that man and ceased that abusive relationship. You have a number of children of whom one has been a problem to you. Your son has been in legal trouble. There is material before me that suggests that he has been an illicit drug user and has been in a lot of financial trouble. I accept that much of the money which you misappropriated, using a general term with respect to these offences, was primarily used to assist that son with his debts and to try to improve the quality of life of your family. There is no indicia of personal enrichment with respect to these offences. There is nothing indicating that you made any significant purchases or that you used the money to make anything by way of luxury purchases or anything of that nature.

9. At the time that you were apprehended with respect to these offences, you made an offer to pay back the sum of $6,000.00 which I understand relates to the charge of dishonestly appropriating property (CC14/3289). At that time, you had a sum of $6,000.00 in your bank account, however, your offer of repayment was refused and subsequently, as I understand your evidence, you used that sum to pay for household expenses after you lost your employment. In that sense, of course, it is true that you used it for your own personal purposes, but I do take into account the fact that you had made an offer to return that money at that time which was rejected.

10. I also take into account the fact that there have been other stresses in your life such as those caused by problems seeing your grandson in recent times and that you have also been under very significant financial and work pressures. None of that, of course, justifies what you did, but it does provide some background to the offending.

11. I take into account the contents of the Pre Sentence Report. I also take into account in that regard the fact that you have been assessed as being at a low to moderate risk of reoffending. The author of the Pre Sentence Report found you unsuitable for periodic detention due to your work commitments, but found you suitable for a community service order. You have, nevertheless, indicated a willingness to participate in periodic detention if this Court considers it appropriate. It is clear from the contents of the Pre Sentence Report, however, that, in order to participate in periodic detention, you would have to resign from your present employment which requires you to work on weekends. In my opinion, it would not be in the best interests either of yourself or of the community for you to lose your employment at this time. As such, I do not intend to impose periodic detention.

12. The Crown has indicated quite correctly that these are serious offences made more serious by the fact that they involve a breach of trust. You were trusted by your employer with your employer's assets and you breached that trust by misappropriating significant sums of money. I must take into account in sentencing you that there appears to be little prospect at the present time of you being able to repay those sums.

13. The Crown has submitted that deterrence, both personal and general, are relevant sentencing considerations with respect to this offence and I agree with those submissions. I accept, based upon the evidence that you have given and also the contents of the Pre Sentence Report, that there is not a great risk of you committing further offences of this kind. I note that you had not committed offences of this nature for a long period throughout your life and that these occurred, whilst not over a short period such as a week or so, but over a fairly compressed period of six to eight months. As such, I am satisfied that personal deterrence, whilst it remains a relevant sentencing consideration, is not such as to require an immediate term of imprisonment. General deterrence is, of course, a very significant sentencing consideration for offences of this kind. They are often difficult to detect and in addition to which, as I have already indicated, they involve a significant breach of trust. It is important that any sentence that this Court imposes sends a message to those who may be minded to offend in a similar way that there will be real consequences for such conduct.

14. I note that you gave evidence during the course of the sentencing hearing and I generally accept your evidence. You made concessions which were against your interests where it was appropriate to do so. I accept, however, the submission made by the prosecution that you do appear to attempt somewhat to minimise your responsibility for these offences. Whilst it is my opinion that you were living a very chaotic life with a number of stressors at the time of these offences, you have, I think, attempted to minimise your knowledge of and involvement in the six transactions which resulted in the amount of $46,869.76 being misappropriated from your employer.

15. I intend to proceed by way of the imposition of terms of imprisonment which will be suspended and there will also be a significant community service order. I note that you have been found suitable for a community service order. I will also make a reparation order although, as I said, it appears to me that there is little prospect of you being able to repay the amounts involved.

16. With respect to the charge of obtaining property by deception (CC14/8533), you are convicted and sentenced to 18 months' imprisonment which I have reduced from 2 years in order to reflect your plea of guilty. That sentence will be suspended forthwith and there will be a Good Behaviour Order for a period of three years from today with conditions:

(a) first, that you are to accept the supervision of ACT Adult Corrections for a period of two years or such lesser period as deemed appropriate by your supervising officer and you are to obey all lawful directions of your supervising officer; and

(b) secondly, that you are to complete 300 hours of community service within two years as directed by officers of ACT Corrective Services.

17. With respect to the charge of dishonestly appropriating property (CC14/3289), you are convicted and sentenced to six months' imprisonment which I have reduced from eight months in order to mark your plea of guilty, of which three months will be cumulative on the sentence which I have just imposed on the charge of obtaining property by deception. That sentence will be suspended forthwith and there will be a Good Behaviour Order for a period of three years. However, I will impose no conditions with respect to that Good Behaviour Order other than the core conditions in the light of the orders that I have made with respect to the charge of obtaining property by deception.

18. I make an order that you make reparation to BSM Hotels Pty Ltd in the amount of $52,869.76.

19. The effect of the orders that I have made is that I have imposed a total sentence of 21 months' imprisonment. That consists of 18 months with respect to the first charge and 6 months with respect to the second charge of which three months is added to the 18 months, which adds up to 21 months. I have suspended those sentences and there will be a Good Behaviour Order for a period of three years. During a period of two years, you will be subject to supervision by Corrective Services. That may be less than two years, depending upon the assessment made by Corrective Services. During that period of supervision, however, you are required to attend as and when directed by Adult Corrections and also you will be required to undertake whatever actions you are directed to undertake by Corrective Services which may include, for example, attending for medical or psychological treatment and attending counselling with respect to financial budgeting.

20. You are also required to complete 300 hours of community service within the next two years as directed by officers of ACT Adult Corrections. Now, in that regard, you have an obligation to attend as and when directed. It is not a case of thinking, "Well, I've got two years to work off these 300 hours". You do not decide when you are going to attend for community service. Corrections decide when you are to attend. If you comply with the terms of the orders that I have just imposed, then there is no reason why you need serve that period of 21 months' imprisonment. However, if you do not comply with the terms of the orders, then you should expect to serve those terms of imprisonment.

I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Justice Burns.