R v Savanhu [2017] ACTSC 217

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

R v Leighton [2016] ACTSC 354

Office of the ACT Director of Public Prosecutions (Crown)

1. On 8 July 2016, an indictment was filed in the Supreme Court charging the offender with fifty-one counts of obtaining property by deception. The matter was due to be heard on 19 June 2017.

2. A fresh indictment was filed on 22 May 2017. It contains 11 counts of obtaining property by deception. The offender pleaded guilty to all of the counts on that date.

3. The maximum penalty for each offence is a fine of $150,000 and/or ten years imprisonment.

4. The 11 counts relate to 36 fraudulent transactions between 24 March 2011 and 10 January 2014. The total amount defrauded was $28,654.70.

5. The offender was employed by the Public Trustee of the ACT (the Public Trustee) from 2008. The Public Trustee manages the financial affairs of persons suffering from a legal incapacity.

6. Each 'client' of the Public Trustee is assigned a Trust Officer to manage a client's financial affairs. If the client owns a property, the Trust Officer organises, and arranges payments for, any work to be done at the property.

7. The offender was a Trust Officer. Part of the induction process was to work with a mentor. One of the offender's mentors was Mr Timothy McLeod. On 29 May 2017, Mr McLeod entered pleas of guilty to four offences of a similar type. The offences involved a much larger sum of money than is the case here.

8. The offender was born in Zimbabwe (then called Rhodesia) in 1979. He has friends in the Zimbabwean community. In the course of his employment, he created false cheque requisition forms requesting funds on behalf of clients who were being managed by the Public Trustee. The cheque requisition forms would request money be paid out to contractors he knew in the Zimbabwean community. The work was either not done at all or done differently to that for which the requisition had been made.

9. The fraudulent activity concerned 11 clients. Although the primary victim of the fraud was the Public Trustee, the fraud must be seen as having had the potential to deplete the funds available to each client. It is to be remembered that each client was a person suffering from an incapacity.

10. Following the discovery of the fraudulent activity, the offender was suspended from work on 21 January 2014. Greater detail of the criminal activity can be found in the Statement of Facts, which is Exhibit A.

11. The offender came to Australia with his mother and sister when he was 13 years of age. He remains in a supportive relationship with his mother and sister. He has never met his father.

12. The offender is married with four children. The eldest is 20 years old and the youngest is three years old. The 20-year-old has left home.

13. The offender's wife is very ill. The offender cares for her, now on a full-time basis. I will return to her incapacity a little later.

14. The offender has no problems with illicit drugs. He does not drink very much alcohol, but this has not always been the case. He has five convictions for drink driving. After the last conviction in 2010, he served a term of imprisonment of three months by way of periodic detention.

15. According to the presentence report, which I accept, the offender has accepted responsibility for his crimes and expressed sympathy for his victims. He does maintain that his co-offender should share some of the blame.

16. I have been provided with a number of references. Of particular importance is the letter from Dr Tausif which gives details of the offender's wife's illness. She was found to have a large tumour growing in her lower back, placing pressure on the spinal nerve. This impeded her capacity to move. She came to surgery in June 2017 and is still in post-surgical rehabilitation. She is unable to work or carry out any household tasks. She and the children that live at home are dependent on the offender for all household chores, shopping, taking the children to and from school and taking her to medical appointments. The doctor concludes:

Mr Savanhu's family is very much dependant on him for day to day care and continued support, if Mr Savanhu were not around his family would not cope and suffer further severe hardship or worse.

17. Other referees talk of the offender's generosity, charitable nature and devotion to his family. They also describe his remorse. I did not get the impression that their views would have been different if they knew more about the driving offences. It is more important that they were aware of his fraudulent activities.

18. Two letters that deserve extra attention are from his mother and wife respectively. Mrs Savanhu describes her son as kind and helpful. He is always ready to help others, including his mother. She also describes his reaction to the offences. She says:

The past four years have been very difficult for my son. These have been years of reflection and remorse, he has been sad, torn, depressed and beside himself. He has expressed to me a deep and sincere sense of regret and the distress caused to all the parties involved and his family. This has tormented him so much to the extent of not being able to sleep and having anxiety. I am positive and I know he regrets his lapse in judgment and he is apologetic and has learnt from this experience.

19. The letter from Ms Bertrand, the offender's wife, describes the errands that he carries out for her. He is effectively her full-time carer. Her rehabilitation is continuing. She is not permitted to drive or lift anything heavy. Her husband will need to take care of her for some time.

20. There are some New South Wales authorities which suggest family hardship should only be taken into account in exceptional circumstances. However, s 33(1)(o) of the Crimes (Sentencing) Act 2005 (ACT) says that the probable effect on the offender's family is a relevant consideration.

21. The offender was closely cross-examined in relation to arrangements that might be made if he went to prison, in particular by way of assistance from family members. I am satisfied that it would be very difficult for the offender's extended family to provide the full-time care that is currently necessary. I emphasise, however, that in an appropriate case, an offender would not be spared a prison sentence because of family commitments.

22. The sentencing exercise requires a fine balance to be struck. On the one hand, there is the need for deterrence, both specific and general, and the importance of showing to the public that criminal behaviour will be punished. In this case, the criminal behaviour involved the funds of incapacitated people. In addition, as his job title inferred, the offender was in a position of trust.

23. On the other hand, the offender's prospects of rehabilitation, and particular circumstances, must be taken into account. I am satisfied that, on the basis of the references that I have read and the pleas of guilty, the offender is remorseful and is unlikely to reoffend. The offender's evidence today fortified my impression of his remorse.

24. Fortunately, the offences were restricted to the monetary sum of about $28,000. In addition, $14,200 has been paid back and the offender has consented to an order under the Confiscation of Criminal Assets Act 2003 (ACT), obliging him to repay, by instalments, the balance of the monies owing.

25. The purposes and objects of sentencing are important. They can be found in sections 6 and 7 of the Crimes (Sentencing) Act 2005 (ACT). Section 10 tells the court not to send a person to prison if there is any other appropriate option.

26. There are no precisely comparable cases. I have been referred to R v Leighton [2016] ACTSC 354, in which the offender was also involved in a fraud on the Public Trustee. Burns J sentenced the offender to a total term of imprisonment of 4 years with a non-parole period of 19 months. I think it is evident that the sentences would have been longer but for a particular element relating to that offender.

27. The significant difference in that case is that there was a much larger sum of money involved, namely over $675,000. The Crown submitted that, in terms of criminal involvement, the offender is more culpable than Mr Leighton because he was an instigator rather than a receiver. Technically this may be correct, but I observe that without receivers, there would be no thieves.

28. In addition, I think the comparative culpabilities are overwhelmed by the respective sums of money involved and the unseemly uses to which Mr Leighton devoted the more than $200,000 that he received.

29. Both counsel agreed the offending was objectively serious, a characterisation which was mostly influenced by the offender's position of trust. They also agreed that a sentence of imprisonment was inevitable. I add my agreement to this position.

30. The Crown also properly cautioned me to take into account the offender's breach of the Good Behaviour Order made in 2010 (and an earlier one) as an indication of the offender's lack of respect for previous court orders. It is necessary for me to deal with the breach of the 2010 order imposed by Magistrate Campbell. I intend to follow the Crown's suggestion of making no further order but take into account the breach in sentencing the offender for the fraud offences.

31. I intend to impose a term of imprisonment but suspend it with immediate effect on condition that the offender enters into a good behaviour order for a period of two years.

32. There are 11 separate counts. Arguably, any sentence imposed should accumulate, or partially accumulate, the penalties for the different offences. However, having regard to my decision to suspend the sentence, I think it more appropriate to deal with them concurrently but by way of a slightly longer term.

33. I note here that I have applied a discount of approximately 20% to the length of the terms to reflect the pleas of guilty.

(a) In respect of count one, obtain property by deception (CC 2015/7760), the offender is sentenced to a term of imprisonment of 18 months commencing on 10 August 2017 and ending on 9 February 2019.

(b) In respect of count two, obtain property by deception (CC 2015/7761), the offender is sentenced to a term of imprisonment of 18 months commencing on 10 August 2017 and ending on 9 February 2019.

(c) In respect of count three, obtain property by deception (XO 2017/31121), the offender is sentenced to a term of imprisonment of 18 months commencing on 10 August 2017 and ending on 9 February 2019.

(d) In respect of count four, obtain property by deception (XO 2017/31122), the offender is sentenced to a term of imprisonment of 18 months commencing on 10 August 2017 and ending on 9 February 2019.

(e) In respect of count five, obtain property by deception (XO 2017/31123), the offender is sentenced to a term of imprisonment of 18 months commencing on 10 August 2017 and ending on 9 February 2019.

(f) In respect of count six, obtain property by deception (CC 2015/7766), the offender is sentenced to a term of imprisonment of 18 months commencing on 10 August 2017 and ending on 9 February 2019.

(g) In respect of count seven, obtain property by deception (CC 2015/7767), the offender is sentenced to a term of imprisonment of 18 months commencing on 10 August 2017 and ending on 9 February 2019.

(h) In respect of count eight, obtain property by deception (XO 2017/31124), the offender is sentenced to a term of imprisonment of 18 months commencing on 10 August 2017 and ending on 9 February 2019.

(i) In respect of count nine, obtain property by deception (XO 2017/31125), the offender is sentenced to a term of imprisonment of 18 months commencing on 10 August 2017 and ending on 9 February 2019.

(j) In respect of count ten, obtain property by deception (CC 2015/7771), the offender is sentenced to a term of imprisonment of 18 months commencing on 10 August 2017 and ending on 9 February 2019.

(k) In respect of count eleven, obtain property by deception (XO 2017/31126), the offender is sentenced to a term of imprisonment of 18 months commencing on 10 August 2017 and ending on 9 February 2019.

(l) Each term of imprisonment is suspended with immediate effect upon the offender entering into a good behaviour order for two years during which time he is to accept the supervision, and obey all reasonable requests, of the Director-General of Corrective Services, or his delegate, for so much of the two years as is thought necessary.

(m) In respect of the breach of the Good Behaviour Order imposed by Magistrate Campbell on 26 May 2010, imposed in relation to a charge of drive while disqualified (CC 2010/1457), no further action is taken.

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