STATE OF TASMANIA v ALEXANDER JAMES ABEY 9 DECEMBER 2019
and HARRY MICHAEL CORNER
COMMENTS ON PASSING SENTENCE PORTER AJ
The defendant Mr Abey has pleaded guilty to one count of stealing, one count of computer-related fraud, and one count of dishonestly acquiring a financial advantage. I am also dealing with his plea to a summary charge of making a false report to police. The defendant Mr Corner has pleaded guilty to one count of stealing. He is effectively jointly charged with Mr Abey on that count. All of the charges arise out of a course of events that happened in April 2019 and involve a TAB agency at which Mr Abey was working at the time. The defendants are school friends and remained best friends. The TAB Agency is at Derwent Park and was then managed by Mr Abey’s grandmother. What immediately precipitated the course of events seems to have been Mr Abey’s arrangement to purchase a car but he found himself $500 short. In an attempt to raise the money, Mr Abey placed a number of bets through the TAB computer system on credit. That is not allowed by the TAB. He placed 34 separate bets to a total value of $10,336. That constitutes the second charge. From those bets, he received dividends totalling $2,476.40, while one bet of $100 was cancelled. However, he did not take his winnings, but reinvested them on further bets. In addition, he took cash from the till on a number of occasions, the total being $235. That is the third charge. The net loss of this conduct was $7,994.60. That evening Mr Abey told Mr Corner what had happened. Mr Abey suggested they stage a robbery by ramming a car through the store window to recover the money. Mr Corner dismissed that idea as stupid and together they settled on conducting a robbery of the agency the following evening. Mr Abey’s motorbike was to be used as the “getaway vehicle”. The plan was discussed while driving around. That included a visit to the Domain to work out where the motorbike was to be left. The formulated plan included the time at which the robbery was to occur, what would happen – the defendants agreeing that Mr Corner would be the notional robber, Mr Abey would open the safe, take the money from it and put it in a backpack, whereupon Mr Corner would take the motorbike, park it at the pre-arranged spot, walk to his car a short distance away and drive home. On the evening of Monday, 15 April 2019 that is what they did. At 6.56pm on that day police were called to the agency in relation to a robbery. Mr Abey was present. He falsely told police that a male person had approached him as he was leaving the store and placed an arm around his neck forcing him back into the store. He said that the person demanded he open the safe, which Mr Abey did, the person then taking all the cash from the safe before tying him up with zip ties and leaving him. He said the person stole Mr Abey’s motorbike, motorbike helmet and mobile phone. Several police units were despatched in search of the offender. Very shortly after, the motorbike was found on Lower Doman Road, undamaged. Mr Abey made a statutory declaration to police outlining the details of the alleged robbery, much of which, as it turned out, had been captured on CCTV footage. A total of $32,800 was reported as being stolen, but following an analysis of records, the correct amount was $24,800. That of course is the charge of stealing. Police conducted a thorough investigation. Significant aspects were the use of the location mapping system on Mr Abey’s mobile phone, an eye witness putting a vehicle at the location at which the motorbike was later left, photographs of that same vehicle being found on Mr Abey’s phone, and CCTV footage showing the two defendants in the TAB agency for several hours the night before the robbery. Ultimately on 26 April 2019 police searched the homes of both men. Large quantities of cash were found at each home. The home of Mr Corner’s mother was also searched. Along with a suitcase containing over $16,000 in cash, some relevant clothing and some cable ties were found. Mr Corner was first interviewed. He made full and frank admissions, saying that Mr Abey had told him that he had gambled and lost about $8,000. He told police that he had kept $19,800 with Mr Abey getting $5,000, as he, Mr Corner “had put more on the line”. He admitted to using a box cutter to make the robbery look real. Shortly after, Mr Abey was interviewed and also made full and frank admissions. He told police he had unlawfully bet using credit and lost about $8,000. He admitted that he and Mr Corner orchestrated the robbery. After the robbery Tabcorp implemented security measures at various agencies in the vicinity at a cost of $4,620.
Mr Abey was 19 at the time; he is now 20. He has no recorded history of offending beyond four traffic infringement notices. Mr Corner was and still is 19 years old and also has a record of offending consisting solely of four traffic infringement notices. I will firstly deal with Mr Abey’s personal circumstances in greater detail. As to Mr Abey, his childhood was a little disjointed. He lived with his grandparents from the age of 2, and did not live with his parents when they were together. He still lives with his grandmother, his grandfather having passed away shortly after this offending, having been ill for some time, a matter to which I will return. Mr Abey was educated to year 12 standard and reports some bullying at school. As noted, he worked for his grandmother at the TAB agency. In the period leading up to the offending, his grandfather was ill resulting in him working for about 70 hours a week and being paid irregularly. He has no mental health or substance abuse issues. I am told that he is not able to identify the thought processes that set in motion the train of events commencing with him trying to win $500 through prohibited betting. It seems that he was distressed at his grandfather’s illness. I am told that he simply panicked when the betting escalated at the end. He placed one large bet in an attempt to break even. What then led him to involving Mr Corner and hatching the plot for the staged robbery remains unexplained. Since the offending he has sold a motorcycle, motorbike riding being a keen interest of his, and recouped some $3,000. He obtained casual employment unloading fishing boats for his cousin. He entered into an arrangement to pay off the amounts owing, and has made consistent and regular payments. He has now repaid a total of $12,614 made up of the net betting loss and the security costs. I have a number of personal references. The first is from his employer Mr Claridge who is, of course, related to him. Mr Claridge says he always known him to be of good character and honest, and not known as a gambler. He feels that Mr Abey was rather distraught at the time of his actions given his grandfather’s situation, his grandfather having raised him from the age of 2. Mr Abey is said to be very remorseful and continues to be “a good hard worker” with no chance of re-offending. The other references are from family friends, one of whom is also a patron of the TAB agency. In short, both attest to the propositions that the offending is out of character and there is little risk of reoffending. I take into account the early pleas of guilty which were entered on the second appearance in the Magistrates Court. I accept that Mr Abey has insight into the extent of his offending and is deeply remorseful. I also accept that there is very little chance of him reoffending, and of course his efforts at making restitution significantly count in his favour. Although not a gambler he has undertaken voluntary exclusion from the TAB, simply to distance himself from the situation.
As to Mr Corner, he had a difficult childhood with his parents divorcing when he was 7 and his mother the subject of physical abuse by a subsequent partner. That relationship ended and his mother entered into another relationship which is now of about 9 years’ standing. Mostly Mr Corner has lived with his mother and stepfather, with both of whom he has a good relationship. At the time of his offending he was living with a partner, but has moved back with his parents. He completed year 11 and then commenced an apprenticeship as a motor mechanic with a large automotive dealership. He lost his apprenticeship because of the loss of his driver’s licence but his employer kept him on. He has now regained his licence and hopes to resume the apprenticeship. I have a reference from a service manager. He says Mr Corner has proved himself to be honest, respectful and reliable. He feels that the offending is very out of character, and he believes that Mr Corner is very remorseful for the mistake he has made. An important aspect of Mr Corner’s personal circumstances is his mental health. He has experienced difficulties in this respect since grade 9. He has suffered from anxiety and depression and has been diagnosed as having borderline personality disorder. He has engaged in self-harm. Late last year he was involved in two quickly successive suicide attempts which led to him seeing a psychologist and a psychiatrist. He is presently the subject of a treatment management plan and is on medication. The dosage now seems settled and his symptoms seem to have improved and stabilised. Mr Corner says his mental health issues were affecting the way he was thinking and that this affected his decision-making at the time of the offending, as he had little care for the consequences. He started taking his medication about a month beforehand and believes this had a significant contribution to what happened. I take into account the early pleas of guilty which were also entered on his second appearance in the Magistrates Court. I accept that he too has insight into the extent of his offending, and is embarrassed and ashamed of his behaviour, and remorseful. I note that he has agreed to assume responsibility for the amount of $775 still outstanding from the so-called robbery. I have reports from Community Corrections on both men. Mr Abey is suitable for home detention but there is a difficulty with his compliance due to being subject to short notice in relation to his employment obligations. Seven days is the minimum Community Corrections can cope with. Mr Abey will most likely lose his employment if such an order is made although I am told there may be some room to move with the employer in terms of alternative duties. Mr Abey is pursuing a self-employment option by training in dog grooming, but such a vocation may present the same difficulties. Mr Corner cannot be the subject of a home detention order because he lives in an area where electronic surveillance is not possible. Such deficiencies need to be fully addressed, particularly as these orders were introduced as part of a government plan to phase out suspended terms of imprisonment. If not remedied, the set of sentencing options is not universally available, and otherwise like cases cannot be treated in a like manner. That is a breach of a fundamental principle.
Clearly this offending is to be regarded in a serious light. Mr Abey engaged in unauthorised betting which escalated to chase losses and took money in the process. That the two agreed to stage a robbery and report it to police in order to repay the money lost is deserving of strong condemnation. Making the false report of an armed robbery caused alarm and security concerns. Police resources were wasted. A matter of concern that has not been explained is that although the money was taken on 15 April 2019, the deficit of approximately $8,000 had not been made up from what was taken when police searched the homes eleven days later, and at least, there seems to have been an intention to keep the balance. General deterrence and denunciation are important factors. I accept that there is a very low risk of either man reoffending, and that specific deterrence is accordingly not a prominent factor. I take into account their young ages and lack of records. Also operating in their favour are the pleas of guilty, genuine remorse, recovery of much of the proceeds and, in Mr Abey’s case, substantial and ongoing restitution. On balance, I think the greater emphasis should be placed on rehabilitation.
I have explained the factors that I see to be relevant and the weight to be given to them. As I said, I think the public interest is better served by focussing on your rehabilitation. I do not think immediate imprisonment is called for in either case. Devising and carrying out the ruse of an armed robbery to cover up Mr Abey’s dishonesty was quite outrageous behaviour. There might be an element of foolish immaturity present, but the matter must be treated seriously. Mr Abey, the course of events started when you breached the trust of your employer by unauthorised gambling and taking money. You initiated the discussions and the plans about staging the robbery. You are convicted of all crimes. You are sentenced to 18 months’ imprisonment the execution of which is suspended on condition that you commit no offence punishable by imprisonment for a period of two years. In addition, I make a community corrections order for two years. You must within that period complete 200 hours of community service and you must attend educational and other programs as directed by a probation officer. You will have to report to a probation officer at 3 Terry Street, Glenorchy by 5pm tomorrow.
Mr Corner, you are only to be dealt with for the crime of stealing but it is relevant to the context that you were part of the ruse of an armed robbery. You are convicted of the crime and sentenced to 14 months’ imprisonment the execution of which is wholly suspended on condition you commit no offence punishable by imprisonment for a period of two years. I make a community corrections order in your case also. That will be for 18 months. You must complete 160 hours of community service within that period. You will also have to report to a probation officer at 3 Terry Street, Glenorchy by 5pm tomorrow.
I make a restitution order in favour of Tabcorp Holdings Ltd in the sum of $6,440 being the amount seized from Mr Abey on 26 April 2019. I make a restitution order in favour of Tabcorp Holdings Ltd in the sum of $17,585 being the amount seized from Mr Corner on 26 April 2019. I make a compensation order against both defendants in the sum of $775 in favour of Tabcorp Holdings Ltd.