SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: / R v Jacqueline McGowan
Citation: / [2016] ACTSC 369
Hearing Date: / 9 December 2016
Decision Date: / 9 December 2016
Reasons Date: / 14 December 2016
Before: / Robinson AJ
Decision: / Good behaviour order amended. Community service component to commence on Monday, 7 August 2017.
Catchwords: / CRIMINAL LAW – SENTENCE – Punishment – amendment of good behaviour order – changed circumstances of the offender – medical deteriorating pending surgery – order amended
Legislation Cited: / Crimes (Sentence Administration) Act 2005 (ACT) s 112
Criminal Code 2002 (ACT) s 44, 332, 326, 346
Cases Cited: / Goundar v Goddard [2010] ACTSC 56
R v Jacqueline McGowan [2015] ACTSC 320
Parties: / The Queen (Crown)
Jacqueline McGowan (Offender)
Debra Howell (Applicant)
Representation: / Counsel
Mr M Fernandez (Crown)
Self-represented (Offender)
Self-represented (Applicant)
Solicitors
ACT Director of Public Prosecutions (Crown)
Self-represented (Offender)
Self-represented (Applicant)
File Number: / SCC 43 of 2015

ROBINSON AJ:

Application

1. Ms Debra Howell has applied under s 112(1)(a) and (b) of the Crimes (Sentence Administration) Act 2005 (ACT), in her capacity as an officer in ACT Corrective Services, to amend the conditions of a Good Behaviour Order imposed upon the offender. The applicant seeks the deletion of the Community Service Condition of that Order.

2. Under the Act standing is given to an “interested party” to apply for an amendment. I did not question that standing as it was clear that the offender herself joined in the application.

3. For relevant purposes, under those provisions, a Court may, by order amend an offender’s Good Behaviour Order and the power to amend includes the power to omit or substitute a condition of the Order.

Background

4. The offender pleaded guilty on 4 June 2015 to four “rolled up” charges. These were to the effect:

(a) Between 1 April 2008 and 28 February 2011 the offender by deception dishonestly obtained a financial advantage to the value of $59,517.13 from Bacardi Lion. (Contrary to s 332 of the Criminal Code 2002 (ACT) (Criminal Code) with 10 years maximum penalty).

(b) Between 1 April 2008 and 28 February 2011 the offender by deception dishonestly obtained property, namely things in action to the value of $54,915.18 belonging to Bacardi Lion. (Contrary to s 326 of the Criminal Code with 10 years maximum penalty).

(c) Between 1 April 2008 and 28 February 2011 the offender made false documents with the intention of using the documents to dishonestly induce someone else to accept the documents as genuine. (Contrary to s 346 of the Criminal Code with 10 years maximum penalty).

(d) On 1 December 2010 the offender attempted by deception dishonestly to obtain property, namely, a thing in action to the value of $15,000 belonging to Bacardi Lion. (Contrary to s 44 and s 332 of Criminal Code with 10 years maximum penalty).

5. As a result of these transactions, Bacardi Lion, her employer, had suffered a loss of $114,432.31.

6. For the reasons given in R v Jacqueline McGowan [2015] ACTSC 320, I sentenced the offender on 22 October 2015 as follows-

(a) For the offence that between 1 April 2008 and 28 February 2011 the offender by deception dishonestly obtained a financial advantage to the value of $59,517.13 from Bacardi Lion, you are convicted and sentenced to 18 months imprisonment. That sentence is to commence today. The offender is to serve that sentence by way of periodic detention for a period of 6 months, with the balance of the sentence to be suspended at the expiration of that period upon her entering a Good Behaviour Order for 3 years, with that order to include a condition that she complete 200 hours of community service work.

(b) For the offence that between 1 April 2008 and 28 February 2011 the offender by deception dishonestly obtained property, namely things in action to the value of $54,915.18 belonging to Bacardi Lion, you are convicted and sentenced to 18 months imprisonment. That sentence is to commence from 22 October 2016. That sentence of imprisonment is suspended upon the offender entering into the Good Behaviour Order imposed in relation to the first count.

(c) For the offence that between 1 April 2008 and 28 February 2011 the offender made false documents with the intention of using the documents to dishonestly induce someone else to accept the documents as genuine, you are convicted and sentenced to 12 months imprisonment. That sentence is to commence from 22 April 2017. That sentence of imprisonment is suspended upon the offender entering into the Good Behaviour Order imposed in relation to the first count.

(d) For the offence that on 1 December 2010 the offender attempted by deception dishonestly to obtain property, namely, a thing in action to the value of $15,000 belonging to Bacardi Lion, you are convicted and sentenced to 6 months imprisonment. That sentence is to commence from 22 April 2017. That sentence of imprisonment is suspended upon the offender entering into the Good Behaviour Order imposed in relation to the first count.

7. There was, at the sentencing hearing, a substantial medical issue pertaining to the offender’s physical and mental condition and to her suitability for periodic detention.

8. The evidence filed in the current application, shows that the offender commenced her periodic detention on 23 October 2015 and completed this on 20 May 2016. During this time the offender did not attend on five occasions when, according to the staff at the periodic detention centre she appeared to be suffering from her ongoing health issues. However, otherwise her attendance was satisfactory. On 14 July 2016 the offender attended her Community Service Work Induction program. The offender was assigned to commence community service work at Salvos Tuggeranong from 20 July 2016. The offender failed to attend that community service work and advised that she had been unwell.

9. I record that the offender has now made full restitution in respect of the offences.

Changed circumstances

10. I am satisfied that the circumstances have changed since the imposition of the Good Behaviour Order in October 2015. See Goundar v Goddard [2010] ACTSC 56 at [27].

11. It is not necessary to set out in detail those circumstances. They are of a medical nature and the fact that the offender now lives in Ulladulla and the New South Wales Corrective Services Department is unable to take over the administration of the Good Behaviour Order. I accept that as things stand it is not possible for the offender to travel four hours per day to attend to her community service in Canberra.

12. The component of 200 hours of community service was and was intended to be seen as punishment for the offending. I will not simply delete this component. The offender is to undergo surgery the object of which is to seek to alleviate the medical disabilities so that the offender can once again function sufficiently in everyday life albeit with great inconvenience.

13. I will make an order suspending the commencement of the community service component of the Good Behaviour Order until 11 August 2017 to allow for the proposed surgery and a period of recovery thereafter.

14. I suggested to the offender during the hearing of this application that she might take the initiative and find herself a placement with a community service organisation in Ulladulla and commence work there as soon as she is able, to the intent that that service will be credited against the 200 hours. The offender, in her own interests, should keep ACT Corrective Services apprised of her situation and seek their concurrence to her activities.

15. If the offender is ultimately unable to perform any community service work she will need to provide the court with options to replace this component of her “punishment”.

Order

16. I amend the good behaviour order by adding the words “to commence on Monday, 7 August 2017”.

I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Robinson.
Associate:
Date: 14 December 2016

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