STATE OF TASMANIA v REBECCA DOROTHY BAKER GEASON J
COMMENTS ON PASSING SENTENCE 27 JULY 2020
Ms Baker you appear for sentence on your plea of guilty to a charge of stealing by misappropriation. The amount involved is a little over $43,000.
Your offending occurred between March 2013 and May 2015, when you were aged 23 and 24 years. You are now aged 29. During that period you were employed by the Ability Tasmania Group, a charity based in Burnie, and which assists people with a disability to find employment. It is a not-for-profit organisation funded by government.
When you commenced your employment you signed a code of conduct and you were made aware of the correct procedures in relation to the use of credit cards.
In 2012 you were appointed senior administration officer and in February 2013 you were appointed finance and accounts manager. You were second in charge to the general manager. You were paid a fortnightly salary, and you were not entitled to any other financial benefits. You were involved in the preparation of the charity’s fraud policy statement, the objectives of which included the prevention, detection and investigation of fraud within the organisation. Your position required you to assist in the management of the 40 Burnie based employees and one of your duties was to oversee business credit card use. You were given a corporate credit card to be used for expenses incurred in the operation of the charity. Expenditure on the card was capped at $3000 per month. You were also required to provide a monthly report in relation to your credit card use.
In early 2015, it became apparent that you were struggling in your administration role and you were offered assistance. In April that year you went on leave. Whilst you were on leave another employee became aware of some unpaid accounts, the payment of which had been your responsibility. The general manager was alerted and a review of your use of the corporate credit was undertaken. It was determined that there were many transactions on that card that were not work-related. You were made aware of the concerns about this spending and you were told that an accountant was being engaged to review the account use. You were required to return the credit card.
The auditing exercise established that between March 2013 and May 2015 there were 374 non work-related transactions carried out by you totalling $43,414.14. These included purchases of food, alcohol, payment of phone bills, personal bills such as optometrist, dentist and hairdresser bills, concert tickets, clothing and furniture items. You hid the details of these transactions by failing to record them or coding them so that they appeared legitimate. It was not a sophisticated method but one you were able to carry on because of the position you occupied, and to hide for as long as you carried on that role.
In May 2015, after the audit had been completed, you were asked to attend a meeting with your employer. You did not attend that meeting. Medical records confirm that you were admitted to hospital having attempted suicide by carbon monoxide poisoning. During that hospitalisation you were diagnosed with an adjustment disorder with depressed mood. You have a history of depression and anxiety.
It is not suggested that your mental health circumstances reduce the moral culpability of your behaviour or indeed enliven any of the other principles referred to in Verdins.
Whilst your offending involved expenditure on personal items and things that could not be regarded as necessities, it is put to me that your partner was spending significant sums pursuing proceedings in the Family Court, and that some of your expenditure was for purchases you regarded as contributing to the relationship such as groceries, renovations and covering the cost of things that your partner could not because of the demands on his income. It is submitted that you succumbed to the pressure to provide those things so that he could cover those other legal costs. You also contributed about $20,000 from your own salary to his legal fees.
I am satisfied that the relationship dynamics should not be ignored in making an assessment of the reasons for your behaviour. That is because you have not previously committed offences of dishonestly and this conduct was clearly out of character.
It is not possible to categorise each and every transaction but I will sentence you on the basis that your conduct exhibited greed and self-interest, but also a succumbing to relationship dynamics which created a sense of pressure to contribute when your partner could not or would not.
Some years have passed since these offences were committed. Since then you have worked as a health care assistant and you enrolled at TAFE where you completed studies to become an enrolled nurse. You obtained permanent part-time work as a health-care assistance and you completed a Bachelor of Nursing degree, graduating in November last year. You accepted a graduate position in the intensive care unit at a public hospital where you have been working since. You have turned things around in your life by undertaking those further studies and gaining employment as a nurse. Your mental health issues have receded and you have not reoffended.
You are entitled to claim that significant progress has been made in your personal life and to urge upon the Court that that personal growth is evidence of rehabilitation relevant to the likelihood of reoffending and thus the need for personal deterrence.
The pre-sentence report records that you are assessed as having a low criminogenic risk, an assessment I can easily accept based upon your demonstrated behaviour since 2015. In Mill v The Queen (1988) 166 CLR 59 at [14] case the High Court made clear that a court was entitled to give weight in sentencing to progress made in the period between the offending and the matter finally being disposed of.
For those same reasons I do not think that you should be seen as a continuing risk to the community.
I take account of the fact that you have repaid the money you stole. That is significant. In a practical sense it serves to reinforce the point that no-one must gain from their criminal behaviour, and in the final result you have not. It is practical evidence of your remorse, your desire to make amends and bring this chapter to a close. I give weight to all those matters.
Despite those positive aspects it cannot be ignored that your offending involved a significant breach of trust and a relatively large sum of money. The objective seriousness of your offending is therefore relevantly high, not least because of the repeated nature of that conduct. This type of offending is difficult to detect, particularly when it is undertaken by people who are in a position to cover their tracks, as you were. You had an opportunity to reflect upon your wrong-doing each time you carried out a fraudulent transaction. Your conduct only ceased upon detection.
These are matters which necessitate a sentence which punishes you and operates as an effective deterrent to others who may be tempted to do what you have done.
I give weight to the fact that you are still a relatively young person. You will endure community censure for your behaviour. You may even find that opportunities are closed to you as a result of your dishonesty. There may be employment impacts, though that is not clear at this stage.
You have been forced to wait some time for sentencing due to circumstances arising from COVID-19 and your engagement within a hospital. This has meant that sentence has been hanging over you for some time and that no doubt will have weighed heavily upon you.
You appear before me without any prior convictions for similar offending. That is not uncommon for this type of crime though that does not make it irrelevant. As I have noted already you are entitled to claim that the conduct was out of character and your behaviour since reinforces that proposition.
I turn to the question of the appropriate penalty. Your plea of guilty came at an early stage and the Court should reflect the benefit which accrues to the administration of justice thereby. I will reduce the sentence I would otherwise have imposed by 20% in recognition of that.
Whilst it is a fundamental principle of sentencing that a custodial sentence is a punishment of last resort, and should not be imposed unless it is necessary and when no other punishment is appropriate, I have determined that in the circumstances a term of imprisonment is appropriate. That conclusion is based principally on the need for general deterrence. That is less about you and more about sending a message to others that conduct like this attracts a severe penalty.
Ms Baker I convict you. I sentence you to 16 months’ imprisonment.
I am required to consider whether the relevant sentencing objectives can be achieved by suspending all or part of that sentence. Cases such as Dinsdale make that obligation clear. The purpose of suspending a sentence is not limited to the issue of rehabilitation, which I have observed is not a significant consideration here because of the progress that you have made. An important, perhaps the main consideration here, is whether a suspended or partially suspended term of imprisonment can have the required deterrent effect. I have considered this matter carefully. In my view, if coupled with a community based punishment which serves to incorporate a punitive consequence for your offending, that objective can be met even if I suspend the term of imprisonment that I have just imposed. It is accepted that a community correction order fulfils a number of sentencing objectives including deterrence and imposes significant burdens on an offender.
So having regard to the age of the offending, your progress since, that you have repaid the money you misappropriated and you are productively employed, I am going to suspend the whole of the term of imprisonment that I have just imposed, but make another order requiring you to perform community work.
I make a community corrections order requiring you to perform 240 hours of community service. Having regard to the extent of the period of community service I have just ordered, that order will operate for a period of 24 months. A further condition of the suspension of the sentence will be that you do not commit an offence punishable by imprisonment for a period of 3 years.
The effect of the sentence that I have just imposed upon you is that you are sentenced to 16 months gaol, wholly suspended on condition that you perform 240 hours of community work and commit no offence punishable by a term of imprisonment for a period of 3 years.