R v Wsol [2015] ACTSC 112

CRIMINAL LAW - Sentence - dishonesty offences - obtaining property by deception - breach of good behaviour order

Crimes (Sentence Administration) Act 2005 (ACT) s 110

SCC 17 of 2014; SCC 35 of 2015

1. The offender adheres to pleas of guilty entered in the Supreme Court to the following offences:

(a) On 2 March 2013, obtaining property by deception (two vacuum cleaners and one deep cleaner from Masters Home Improvement Australia Pty Ltd), contrary to s 326 of the Criminal Code 2002 (ACT) (the Criminal Code). The maximum penalty is 10 years' imprisonment and/or a substantial fine.

(b) On or about 2 March 2013, obtaining property by deception ($715 from Woolworths Limited), contrary to s 326 of the Criminal Code. The maximum penalty is 10 years' imprisonment and/or a substantial fine.

(c) On or about 3 March 2013, obtaining property by deception ($1,695 from Masters Home Improvement Australia Pty Ltd), contrary to s 326 of the Criminal Code. The maximum penalty is 10 years' imprisonment and/or a substantial fine.

2. The offender asks that the following additional offences of 2 March 2013 be taken into account when sentencing on offence (a) above:

(a) Attempt to obtain property by deception, contrary to s 326 of the Criminal Code (by virtue of s 44(1)).

(b) Unlawful possession of stolen property (a credit card), contrary to s 324(1) of the Criminal Code.

3. The pleas of guilty were entered in the Supreme Court after a fresh indictment was presented on 27 February 2015. The matters had been listed for trial to commence approximately two weeks later. There were negotiations as to the charges. Ordinarily, the offender would receive a discount for the pleas of guilty but I will not apply a discount in this case because the sentences that I intend to impose are low, and render a discount virtually meaningless.

**4. On 1 June 2012 Burns J placed the offender on good behaviour orders and associated suspended sentences for matters of dishonesty. The most serious matter was an offence of aggravated robbery. During the currency of the good behaviour orders, the subject offences were committed.

5. On 2 March 2013 the offender stole a wallet that contained a Westpac credit card. At about 5.15pm on that day, the offender attended the Masters Home Improvement store at Majura in possession of the credit card. This is the subject of the additional offence of unlawful possession of stolen properly.

6. The offender selected three items (two vacuum cleaners and one deep cleaner) with a total value of $2,482. The offender attempted to persuade a checkout operator to accept the stolen credit card. The offender managed to finalise the transaction through a self-service checkout area. This is the subject of offence (a) of obtaining property by deception.

7. About five minutes later, the offender returned to the store with the items. She attempted to return them and have the purchase price refunded onto a different credit card. However, the attempt was unsuccessful. The offender eventually left the store with the items. This was the subject of the additional offence of attempt to obtain property by deception.

8. At about 6pm on the same day, the offender attended Big W at Majura Park. She stated that she wished to purchase two LG brand flat screen televisions, each valued at $715. She attempted to use the stolen credit card to pay for them but the attempt was initially unsuccessful. After some discussion with a store employee, the offender used the stolen credit card to pay for one of the television sets.

9. Soon thereafter, the offender approached the Big W service desk seeking a refund. She produced a receipt for the purchase of the television. The receipt was illegible, possibly because it had been interfered with. There was then a discussion about the problems with the illegible receipt and whether the credit card to which the offender wanted the refund credited was the one that had been used to make the purchase. The refund was eventually processed; the purchase price of $715 was credited to the offender's credit card. This is the subject of offence (b) of obtaining property by deception.

10. At about 1pm on 3 March 2013, the offender attended the Masters Home Improvement store at Majura in possession of two of the three items (one vacuum cleaner and one deep cleaner) that had been acquired on the previous day. Again, the offender requested a refund. The store attendant sought photographic identification and examined the offender's licence. The store attendant observed that the offender's licence details did not match those on the credit card. The offender managed to swipe her own credit card as the refund was being processed. The offender's credit card was refunded $1,695. This is the subject of offence (c) of obtaining property by deception.

11. There was further discussion between the store attendant and the offender. The offender became agitated and left the store, abandoning her licence and the stolen credit card.

12. On 14 April 2013, when the offender was interviewed by police, she made full admissions.

13. Westpac Banking Corporation seeks reparation in the sum of $3,197, being the total of the sums of $715 and $2,482.**

**14. I am asked to deal with the offender for a breach of the good behaviour orders that were imposed on 1 June 2012 and have not otherwise been dealt with. The good behaviour orders were breached by a theft committed in 2013.

15. On 24 July 2013 Burns J was called upon to consider the cancellation of those orders. Because of the timing of the breach, the only good behaviour orders that were considered by Burns J were the orders relating to the aggravated robbery and the burglary. In respect of those matters, Burns J cancelled the good behaviour orders and re-sentenced the offender to two years and four months' imprisonment, backdated to 21 April 2012 and suspended with the imposition of two year good behaviour orders from 24 July 2013. The good behaviour orders required the offender to complete community service requirements that remained outstanding.

16. As a result, I am to deal with the offender for the breach of good behaviour orders that relate to two theft offences committed in 2011 and an obtain property by deception offence committed in 2010.

17. I am satisfied that the offender breached the good behaviour orders imposed by Burns J on 1 June 2012 for two theft offences and one obtain property by deception offence. Pursuant to s 110 of the Crimes (Sentence Administration) Act 2005 (ACT), I cancel the good behaviour orders and I re-sentence the offender to the rising of the Court.

18. Following further breaches, on 14 November 2014, Burns J cancelled the good behaviour orders that he had imposed on 24 July 2013. His Honour re-sentenced the offender to an effective sentence of 22 months' imprisonment from 14 October 2014 to 13 August 2016 with a non-parole period of 10 months. The non-parole period was to expire on 13 August 2015. The offender is currently serving that sentence.**

19. The objective seriousness of the offences is relatively low but the flavour and the persistent nature of the offender's attempts to extract money from stores cannot be allowed to pass without note. The collective financial loss to Westpac was relatively small. A significant aggravating feature is that the offender was on conditional liberty at the time for a number of offences of dishonesty. Some of those offences were very serious.

**20. The offender is 39 years of age. She was 36 years of age when the March 2013 offences were committed. She has an unstable family background. She was exposed to alcohol abuse within her home and subjected to abuse by her now deceased stepfather.

21. She has two children. The elder is aged 21 years. The younger is 16 years of age and resides with the offender's mother. The offender enjoys a supportive relationship with her mother.

22. The offender was educated to Year 11 and thereafter had a reasonable employment history. However she has been unemployed since 2011, inferentially because of drug abuse.

23. The offender has long standing and serious problems in relation to polysubstance abuse. She first used alcohol at nine years of age. Alcohol consumption became problematic by the time that the offender reached her late 20s. She first used cannabis at 15 years of age and was a heavy user by her late teens. She remains a not infrequent user of cannabis. She commenced amphetamine use at 15 years of age and became a regular user from 18 years of age. Since that time, she has generally been a reasonably heavy user of amphetamines. At times, she has injected those drugs. At other times she has abstained for a period. She commenced opiate use at 16 years of age and, after a break, recommenced use at 29 years of age. She has been a very heavy user at times since then. At times, she has been abstinent from that drug.

24. The offender has made several attempts at rehabilitation while in the community. She has attended programs in New South Wales and at Karralika in the ACT. She entered Karralika (for the second time) in May 2011 and remained on that program until approximately two weeks prior to graduation, when she transferred to Lesley's Place. Thereafter, she relapsed into drug use, initially using at a much reduced level.

25. Since being in custody (on this occasion), the offender has committed herself to rehabilitation. She has undertaken the SMART Recovery Program and has engaged strongly with AA. She undertakes counselling and has been learning mindfulness. She has been proactive in relation to drug rehabilitation and is one of three women prisoners who have lobbied the prison authorities to extend the Solaris Therapeutic Community Program to women. Unfortunately, that Program discriminates against women and is available only to men. The offender is not optimistic that, during her period in custody, she will receive the benefit of the Program, but she has decided to lobby for the benefit of women prisoners in the future. Her engagement with drug rehabilitation throughout her period in custody is commendable.**

26. In sentencing the offender, the sentencing purposes of general and specific deterrence must be borne in mind. However, the offences are now quite dated. The sentences should support the offender's rehabilitation efforts, but must also reflect the sentencing purposes of punishment, accountability and denunciation.

28. For offence (a) of obtaining property by deception, taking into account the additional offences, the offender is sentenced to three months' imprisonment. The current sentence of 22 months will expire on 13 August 2016. The three months' sentence that I impose will run from 14 August 2016 to 13 November 2016.

29. For each of the remaining offences (b) and (c) of obtaining property by deception, I impose a concurrent sentence of one month's imprisonment from 14 August 2016 to 13 September 2016. The current non-parole period is extended to 24 September 2015 and the offender is eligible for release to parole at that time.

30. I decline to make an order for reparation as the offender has no immediate prospects of employment and it would be counterproductive to her rehabilitation to impose such a requirement upon her.**

I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice Murrell.