STATE OF TASMANIA v DARRON JOHN BAKER 8 AUGUST 2024
COMMENTS ON PASSING SENTENCE JAGO J
Darron John Baker, you have pleaded guilty to 141 counts of fraud, four counts of dishonestly acquiring a financial advantage and four counts of stealing by misappropriation. The crimes were committed by you between 19 September 2016 and 13 February 2018 whilst you were Treasurer of a non-profit organisation known as the “Launceston Tamar Valley Tourism Association”. This association consisted of approximately 70 members who paid annual membership. The funds were intended to be used for activities that benefited the members of the association by enhancing tourism in Northern Tasmania.
In July 2016 you became the Treasurer. In the same month the association opened a bank account which had Eftpos facilities, a cheque book and internet banking. You were one of the signatories to the account.
You changed the mailing address for the account to your home address without the knowledge or authorisation of the committee to enable you to control who had access to the bank account statements. You retained custody of the cheque book and the Visa debit card. You activated the Visa debit card with a PIN. You set yourself up as the only person who had access to the internet banking connected to the account. You then proceeded to use the funds in the association’s account for your own personal needs.
Your offending was ultimately detected when another member of the association made enquiries with the bank. It was revealed that the association’s account had been closed on 8 February 2018 due to it being overdrawn by $1,232.08. When confronted by association members as to the whereabouts of the funds, you admitted that you had misappropriated all of the money from the association’s bank account and that the money had been spent on personal items because you had a gambling addiction.
A subsequent audit of the association’s books revealed that there had not been an independent audit conducted since you became Treasurer. When it was done it showed that you had used the Visa debit card to pay for a number of personal items including groceries, the payment of accounts with both Foxtel and Optus, taxi travel and your grandmother’s in-home care fees. Additionally, it revealed you had withdrawn cash from various ATMs in the Launceston area. In the 11 month period, you unlawfully withdrew from the association’s account $20,392.17. Additionally, you used internet banking to transfer $490 from the association’s bank account to your personal bank account. You also used the association’s cheque book and wrote four cheques payable to yourself, totalling $3,055. In total then, your fraudulent conduct resulted in a loss to the association of $24,427.09.
In order to hide your fraudulent behaviour, on 14 occasions between 3 October 2016 and 30 February 2018, you presented treasurer reports to the association in which you made false representations regarding the balance of the ANZ bank account. On each occasion, you inflated the balance of the ANZ bank account to conceal your theft of money from the account.
At the association’s AGM on 19 September 2017, you prepared an income and expenditure statement for the financial year ending 30 June 2017 which falsely represented that the balance of the association’s account was $10,322.78 when, in fact, the true balance was $1,772.90. Again, this was done to conceal your theft of money from the account. The repeated false representations you presented to the association’s committee enabled your fraudulent conduct to continue undetected for a lengthier period of time.
In a further endeavour to hide your fraudulent behaviour, you also used a cheque book which had been issued to a club known as the “Mustang Owners Club” to write cheques which would inevitably be dishonoured to bolster funds in the association’s account. You were treasurer of the Mustang Owners Club, and a friend of yours was the president. By 27 April 2017, you had depleted all of the available funds in the association’s bank account and it was overdrawn. You deposited cheques drawn on the Mustang Owners Club account on nine occasions between 27 April and 23 August 2017. On each occasion there was insufficient funds in the Mustang Owners Club’s account to honour the cheques, but because the funds of the cheques cleared immediately, it had the effect of boosting the balance of the association’s account and placing it into credit.
Immediately after the Mustang Owners Club cheque had been deposited into the association’s account, you would then withdraw the money, before the cheque was dishonoured. All of the cheques deposited from the Mustang Owners Club were incapable of being honoured because the Mustang Owners Club account was itself overdrawn and never in credit. As a result of your fraudulent conduct, the association’s account was also charged fees for dishonoured cheques in the amount of $489.92.
As is apparent, I am satisfied you went to considerable lengths to hide your fraudulent activities, both by the creation of false treasurer’s reports and by depositing cheques that would inevitably be dishonoured.
You were interviewed by police on 19 July 2018. You did not admit to your behaviour. You pleaded not guilty to the charges when they were before the Magistrates Court, although I accept that that plea was entered at a time when there had not been full disclosure of relevant materials.
After you were committed to this jurisdiction, there has been a considerable delay in the matter being finalised. I am told that the file had to be returned to police for completion. This occurred in February 2020 but it was not returned until April 2022. Apparently, much of this delay was associated with the various banks that were involved providing the relevant information to police. You then, I am told, had difficulty in being able to see your Counsel, and it was not until September 2023 that this was able to occur in a fulsome manner. In October 2023, for reasons which are not, in my view, relevant to sentencing, that counsel withdrew from acting for you. You experienced difficulties in obtaining alternate legal representation. In April 2024, you were finally able to secure the assistance of Legal Aid and within a short period of time thereafter, this matter has resolved.
Whilst the matter had been listed for trial earlier this year, and there had been some preparation undertaken in that regard, no witnesses had been briefed. In my view, the plea of guilty retains a utilitarian benefit because the trial would have been a relatively long and complex one. I also accept, that whilst delay per se is not mitigating, in your circumstances, given the mental health difficulties you suffer, which I shall discuss shortly, I accept the delay has caused you a level of stress and anxiety beyond that which is usually experienced. I also note that this offending occurred between 2016 and 2018, and there has been no repeat offending since. In that time you have sought professional assistance for your mental health difficulties and you have abstained from gambling, which appears to have been the catalyst for this offending.
Gambling has, in fact, been a problem for you for some time. I am told it was also the reason why you committed similar crimes in 2008. In 2009 you were sentenced to five months’ imprisonment, which was wholly suspended, for 37 counts of dishonestly acquiring a financial advantage, six counts of stealing and six counts of dishonestly inserting into a computer false data. On that occasion you unlawfully took funds from your then employer, because you were gambling and living beyond your means.
You are 36 years of age. You were 28-30 when the offending occurred. You suffer from a number of health conditions, including fibromyalgia which leaves you with chronic pain, a major depressive disorder and suspected autism. I have received a forensic psychological report authored by Dr. Georgina O’Donnell. She is of the view that the delay in this matter being finalised has taken a “severe toll” on your physical and mental health. She notes you have previously been diagnosed with major depressive disorder with suicidal ideation, anxiety and situational stress, but is of the opinion that your presentation raises the question of undiagnosed autism spectrum disorder. Dr O’Donnell opines that “because the defendant is a highly intelligent man with sound tertiary qualifications and a solid past employment record, his high level of functioning may have resulted in a previous lack of exploration of impairments in his social and interpersonal functioning domains.” In the report, she goes on to say:
“In my opinion, Mr Baker presents with features of probable autism spectrum disorder. This condition has relevance in the current matter, as a primary coping strategy that Mr Baker has employed to cope with his social and interpersonal functioning impairments, is to frequent establishments to play poker machines. The environment allows him to feel that he is socialising, as he has the company of other people, but it requires limited requirement to interact with others. He advised that playing poker machines ‘filled a vacuum of boredom’ after he completed his university studies. He advised that once his assignments and research tasks were gone from his routine, he needed something to fill the void.
Using poker machines is the coping strategy that led Mr Baker to live outside of his means, and rely on drawing funds in his capacity as treasurer to cover living costs.”
In respect to the considerations outlined in R v Verdins (2007) 16 VR 269, Dr O’Donnell opines:
“I have formed the view that Mr Baker’s offending behaviour is causally linked to his probable autism spectrum disorder and major depressive disorder. …he developed a habit of attending pub and casino establishments to play poker machines to fill the void of his time due to his social impairments. Being in this social situation assisted Mr Baker to fill in social time without the demands of social interaction.”
Dr O’Donnell also opines that Mr Baker is suffering from a complex array of physical and mental health problems that are likely to deteriorate in a custodial setting, and therefore a period of imprisonment is likely to be a harsher outcome for him than others who are not beset by his medical conditions.
It is significant, in my view, that the defendant has now ceased all forms of gambling. As noted, there is nothing before me to suggest there has been any further offending since these crimes occurred. The defendant is no longer employed and is reliant on a disability support pension, because of his complex physical and mental health difficulties. He is therefore unlikely to be in a position, anytime soon, whereby he can again commit these types of crimes. That being said, a somewhat guarded approach is warranted given the defendant’s prior criminal history. Clearly his gambling habits have led to the commission of crime twice now. Specific deterrence is an important sentencing consideration. I accept the defendant’s mental health condition is a complex one, and it contributed to his desire to gamble and to some extent, the commission of these crimes. I am satisfied his moral culpability is reduced, but only in a limited way. General deterrence remains a relevant sentencing consideration particularly given the breach of trust involved in these crimes and the considerable lengths the defendant went to, to conceal his offending. In my view, the defendant obviously appreciated the wrongfulness of his behaviour and was prepared to engage in further deceit in an endeavour to conceal and prolong it.
In my view, the duration of the defendant’s offending and the steps he took to hide it, coupled with the fact he is not a first offender, strongly suggests imprisonment is called for. The issue I have grappled with is as to the type of imprisonment I impose, and whether home detention is a sufficiently punitive response. It is of note that since this offending was detected, the defendant has behaved responsibly. He has obtained and continues to receive treatment for both his mental health and his physical conditions. He has ceased gambling. Given his mental health difficulties I accept a period of actual imprisonment would weigh heavily upon him.
All of that must be balanced against the seriousness of the behaviour, and the loss caused to others. None of the money stolen has been repaid and it is unlikely it ever will be. The amount of money involved in the fraud was not insignificant, but I accept nor was it to the upper end of the range with which this Court regularly deals.
I had the defendant assessed as to his suitability for Home Detention and he is suitable. On balance, I am satisfied that it is appropriate to impose such an order. I make the following orders. Darron John Baker, you are convicted of all matters to which you have pleaded guilty. I impose one sentence. I make a Home Detention Order. The operative period of the order is 10 months from today. I specify the premise at which you are to reside during the operational period of the order as [address stated]. I order that as at 9 am tomorrow, Friday, 9 August, you report to the office of Community Corrections at 111 Cameron Street, Launceston for induction into this order.
The order will be subject to all of the core conditions set out in the Sentencing Act 1997, s 42AD(1). These will be set out in the written document that will be given to you, but include that you must submit to electronic monitoring. I specify that you must be at the Home Detention premises at all times unless for a relevant reason you are absent. In short, that means that you must be at those premises unless there is a need for urgent medical treatment, there is a serious risk of death or injury, or you already have the approval of a probation officer to be absent. It will be for the probation officer to determine what to approve so as to allow for treatment or rehabilitation or to enable you to undertake.
The conditions imposed include a condition that you must not commit another offence punishable by imprisonment and that you comply with all directions given to you by a probation officer.
Additionally, the following special conditions will be imposed:
- You must permit a probation officer, a police officer, or other prescribed officer to enter the home detention premises.
- You must permit a police officer to conduct a search of the premises, conduct a frisk search of you and take a sample of any substance found on the premises or on your person.
- You must submit to electronic monitoring, including the wearing or carrying of an electronic monitoring device.
- You must not remove, tamper with, damage, disable or interfere with the proper functioning of that device or equipment, or allow anyone else to do so.
- You must comply with all reasonable and lawful directions given to you in relation to the electronic monitoring device, including directions relating to the installation, attachment or operation of the device, if those directions are given to you by a police officer, a probation officer, or other authorised person.
- You must maintain in operating condition an active mobile phone service, provide the contact details to Community Corrections and be accessible for contact through that device at all times.
- You must not take any illicit or prohibited substances.
- You must not take any medication containing an opiate, benzodiazepine, buprenorphine, hydrochloride or pseudoephedrine unless you provide written evidence from your medical practitioner that you have been prescribed that medication.
- You must not during the operational period of the order consume alcohol and you must, if directed to do so by a police officer, or community corrections officer, submit to a breath test, urine test or other test for the presence of alcohol.
- You must submit to the supervision of a Community Corrections Officer as and when required by that Officer.
I make a compensation order in favour of Launceston Tamar Valley Tourism Association in the amount of $24,427.09.