STATE OF TASMANIA v RACHAEL ANNE HARDY 24 MAY 2021
COMMENTS ON PASSING SENTENCE ESTCOURT J
The defendant Rachel Anne Hardy has pleaded guilty to one count of receiving stolen property and a related summary offence of dishonestly acquiring a financial advantage on complaint 3763 of 2020.
The complainant is Dr Christopher Lueg. Dr Lueg is the owner of a property at 27 Sherwood Court, Lindisfarne in Tasmania. On 21 October 2019 Lisa Maree Wells signed a six months Residential Tenancy Agreement in respect of the property in Lindisfarne. The agreement included the following clauses:
“This lease does not include use of the locked downstairs storage area. The tenant must not access that at any time. The owner has the right to attend this area at any time by providing 24 hours notice in writing”.
“The owner has permission to leave a camper trailer stored in the garage area. This is not to be used, touched or removed by the tenant during this tenancy”.
The locked storage room referred to was a standard bedroom sized rumpus room which contained the complainant’s property to an approximate value of $121,920. The complaint was a collector of art, books, CDs, DVDs and Blu-Ray discs. The camper trailer referred to in the rental agreement was stored in the garage.
Sometime during December 2019, Ms Wells gained access to the locked storage room by manipulating the lock with a fork. She searched through the complainant’s property. Shortly thereafter she, and her associates, began taking and selling the property.
On 27 February 2020 the property manager for EIS Property, Ms Crawford, attended the Lindisfarne address to do an inspection. She noticed that the camper trailer was not present and asked Ms Wells where it was. Ms Wells responded that she had lent it to a friend named ‘Cameron’ and that he still had possession of it. Ms Crawford advised Ms Wells that she would return to do another inspection the following day and if the camper trailer was not returned by that time, she would contact police.
Ms Crawford attended the property again the following day. She waited approximately 15 minutes before Ms Wells arrived. Ms Wells went upstairs into the house while Ms Crawford stayed in the garage. Ms Crawford then heard a loud scream and went upstairs to find Ms Wells laying on the floor saying that there had been a break in.
Sometime after 5:00pm on 28 February 2020, being the following day, Ms Wells contacted police and made a formal report claiming that the house had been broken into while she was at work that day and property stolen. Police attended and began an investigation. Over the following days, police became suspicious about the authenticity of the report.
On 9 March 2020 Ms Wells provided a statutory declaration outlining the alleged circumstances of the break in and described the items allegedly stolen. She alleged that the complainant’s property from the rumpus room had been stolen.
In early March 2020 police attended Cash Converters and viewed CCTV and documents which revealed that the following items belonging to the complainant had been sold to Cash Converters:
- On 20 December 2019 Ms Wells’ son sold 130 Blu-Ray discs.
- On 27 December 2019 Ms Wells sold a DC Comics Bat Signal figurine
- On 17 February 2020 an associate of Ms Wells, Candida Smedley, sold an Apple keyboard, a blender and 55 Blu-Ray discs.
- On 18 February 2020 Ms Smedley sold a further 260 Blu-Ray discs.
- Importantly, on 28 February 2020 Ms Hardy, sold 206 Blu-Ray discs (charge 1, complaint 3763/2020 – dishonestly acquiring a financial advantage).
- The ‘buy contract’ with Cash Converters required the person selling the property to declare that the property is their own personal property. Both Ms Wells and Ms Hardy had signed those documents upon selling the property to Cash Converters.
On 9 March 2020 Ms Wells provided police with a signed statutory declaration in relation to the alleged aggravated burglary.
At 6:35pm on 10 March 2020 police attended 6/2 Diana Circle, Clarendon Vale, being the residence of Ms Hardy, in possession of a search warrant. Under caution, Ms Hardy showed police to some of the complainant’s property located in the house. Ms Hardy made the following comments under caution:
- Ms Wells asked her to store the property.
- She brought it home in her car from the house in Lindisfarne.
- Ms Wells told her to sell certain items. She sold those items at Cash Converters, took some money for petrol and gave the rest to Ms Wells.
- She sold the DVDs for $50.
- She knew at the time it ‘probably wasn’t legit‘, but ‘silly me, I’m always doing things for friends‘ she told police.
- She does not know if the ‘burglary’ report by Ms Wells was legitimate.
The property recovered from Ms Hardy’s residence was to a total approximate value of $16,140. At the conclusion of the search, Ms Hardy was arrested.
Police then attended the Lindisfarne address and arrested Ms Wells.
On 16 March 2020 Ms Wells contacted police and advised them she wished to hand in some of the stolen property. She later attended the Bellerive Police Station with property to a total approximate value of $35,540.
In total, approximately $121,920 worth of the complainant’s property was stolen, of which $51,680 worth has been recovered.
It is asserted by the Crown that Ms Wells is criminally responsible for the stealing of the $22,850 worth of property that was recovered. While it is not asserted that the defendant Ms Wells is criminally responsible for the remainder of the items stolen, it is asserted that after she broke into the secure room and started stealing from there, she allowed others to live in the house and that they stole from the room that was no longer secured, to the extent that a great number of valuable items were stolen from the home owner. It is also asserted she is criminally responsible for knowingly selling property that did not belong to her, in the form of a Batman Signal, and to dishonestly acquire a financial advantage in the sum of $60 from Cash Converters.
It is asserted by the Crown that Ms Hardy is criminally responsible for receiving, and having in her possession, the complainant’s stolen property at her house, to the value of $16,140. It is also asserted she is criminally responsible for knowingly selling property that did not belong to her, in the form of Blu-Ray discs, in order to dishonestly acquire a financial advantage.
The defendant has not spent time in custody in relation to this matter. She has no prior convictions for dishonesty. Her plea of guilty to the charges she faces may be regarded as very early.
The defendant is now aged 45. She is single with no children or dependents. She resides alone at Clarendon Vale in a house rented for the last 20 years through Mission Australia. She receives a Disability Support Pension for anxiety and depression and she is recovering from breast cancer and she is currently in remission. She still attends a number of specialist appointments annually. She has also since undergone psychological treatment for depression, anxiety and anorexia and she continues to fear the return of her cancer.
The defendant’s counsel, Mr Fisher, submits that there are factors in Ms Hardy’s interpersonal background and history that are relevant to how she became involved in this offending. She instructs that when she underwent chemotherapy, that was without the support from family and she found the experience very difficult and isolating.
She instructs that this resulted in her becoming overly eager to form and maintain close friendships and relationships and that could often manifest in her going out of her way to please others, being too trusting in others and being vulnerable to being taken advantage of. She instructs that those feelings played a role in and have since been further amplified by her experience of a significant family violence relationship in 2017 and 2018. She instructs that she met Ms Wells through mutual friends and over time they became close friends, though the friendship did often involve Ms Hardy doing favours for Ms Wells, in particular by driving.
In February of 2020, Ms Wells contacted Ms Hardy to ask for help moving the items that are the subject to the charge, out of the rental unit and asking if Ms Hardy could temporarily store the items at her home. At the time, Ms Wells told Ms Hardy that the items belonged to her, Ms Wells, and that she would give Ms Hardy some petrol money for her trouble. Ms Hardy agreed and she transported the property in her car, and she instructs she took it in three trips. She was aware that Ms Wells had taken some items from her landlord, the complainant, during her tenancy. Ms Hardy instructs that she discouraged Ms Wells from doing so, and that she, Ms Hardy, had actively avoided becoming involved and did not offer to assist at any stage.
She accepts that because of that knowledge, despite Ms Wells’ claims to own all of the property, that she, Ms Hardy, suspected that at least some of it, if not all of it, had been stolen by Ms Wells. She accepts that she was reckless and in her words acted with wilful blindness. She instructs that initially she wanted to believe that Ms Wells owned all of the property, because she considered her a close friend and hoped that Ms Wells would not have sought to involve her in storing stolen property.
She instructs that on 28 February she became frustrated with Ms Wells, the fact that Ms Wells had not given her any petrol money for the three trips that she had promised. She discussed that with Ms Wells, who told her that she could get her petrol money essentially by selling the Blu-ray DVDs. She suggested to Ms Hardy that she should do that at Cash Convertors, and that is what Ms Hardy did. That is the subject of the dishonestly acquiring financial advantage charge. Ms Hardy instructs that Ms Wells at that time maintained that she owned all of the Blu-ray DVDs.
Ms Hardy, however, has pleaded guilty on the basis that she suspected that they may not have belonged to Ms Wells, she did not question her about it, and she was reckless as to whether they belonged to her or were stolen.
She recognises that she should have contacted police, but she did not do so out of a continued, misguided, now she accepted, loyalty to Ms Wells. Police attended Ms Hardy’s address on 10 March. She directed them to where the property was being stored. Police recalled that all of the property that Ms Hardy had in her possession was recovered, save for the Blu-ray DVDs that she sold. The property was also recovered in a condition in which it was able to be returned to the complainant.
She had little to gain personally and in fact, all she did gain was the two-hundred and six dollars.
The defendant Ms Hardy is very clearly the least criminally culpable of the two women and having regard to all of the circumstances, including her motivation, her previous good character and the lack of any significant personal gain, I am of the view that an actual sentence of imprisonment is not warranted.
The defendant Hardy is convicted of the offences to which she has pleaded guilty and I impose a single sentence of three months’ imprisonment which sentence is wholly suspended for a period of two years on condition that she commit no offence punishable by imprisonment within that time.