New South Wales District Court CITATION: R v AMMARI [2010] NSWDC 301 HEARING DATE(S): 11 November 2010 EX TEMPORE JUDGMENT DATE : 11 November 2010 JURISDICTION: Criminal JUDGMENT OF: Berman SC DCJ DECISION: I revoke the order for suspension concerning the offence of embezzlement for which the offender was dealt with in the Local Court and sentenced to imprisonment for eighteen months. I therefore set a period of imprisonment of eighteen months. In the matter on indictment the offender is sentenced to imprisonment. I set a non-parole period of eighteen months, with a head sentence of three and a half years. That means that the overall effective sentence consists of a non parole period of two years, and a head sentence of four years. CATCHWORDS: CRIMINAL LAW - Sentence - Embezzlement - Offence represents a breach of a suspended sentence - Continued offending - Principle of totality to be applied. PARTIES: The Crown Glades Ammari FILE NUMBER(S): DC 2009/274351 SOLICITORS: Director or Public Prosecutions Legal Aid Commission SENTENCE 1 HIS HONOUR: Glades Ammari appears for sentence after having pleaded guilty in the Local Court at an early stage to an offence of embezzlement. She also appears for sentence because the commission of that offence represented a breach of a suspended sentence imposed upon her in the Local Court for a similar matter. Ms Ammari has, through her dishonesty, embezzled a substantial sum of money over a significant period of time. There is no alternative but that she serve periods of imprisonment. 2 The offence which is the second in time occurred when the offender was employed by Ragi Packaging Services Pty Limited. This company is a medium size operation, employing twenty people. It has between 300 and 500 customers. Ms Ammari was employed as a receptionist, although she also had responsibilities involving invoicing customers for their purchases. Customers were to pay their invoices by electronic funds transfer, putting the money into the company's bank account. In a remarkably simple but very effective way the offender managed to arrange for about forty customers to pay the money for their invoices not into the company's bank account but into her personal bank account. She simply contacted those customers by email, fax or telephone and told them that the account that they were to pay their invoices into had changed. She gave them details of her account, thus between 4 May 2009 and 27 November 2009 those forty customers paid Ms Ammari rather than Ragi Packaging Services a total of $540,160.83. 3 Not surprisingly the principals of the company had been noticing this loss of income. The managing director checked the accounts and believed that the financial circumstances of his company were due to economic factors, not realising what Ms Ammari had done. She was able to cover up her misconduct by providing various excuses as to why she was unable to provide reports which would have revealed her criminality to the managing director. Eventually on 27 November 2009 things came unstuck. The managing director inspected a particular account and realised that there were large amounts owing to the company. He then contacted sixteen of the forty customers. They told him that they had been paying, indeed one of the customers provided receipts. Those receipts showed that the money had been deposited not into the company's bank account but into the offender's personal bank account. The matter was reported to police. 4 When the offender came back to work on 30 November 2009 she was confronted with her dishonesty. She admitted what she had done, well at least partially, telling officers from the company that she believed that she had taken about $160,000. The offender printed out some bank transaction records. After looking at these Mr Barack from the company asked her where all the money had gone. He said "the balance of your account shows $41,500, you took out $417,000". (I interpolate here that the extent of the offender's criminality was not then known.) "Where is all the money"? The offender said "I don't know". She then contacted her uncle. In that conversation she said "I'm in big trouble, I have done it again". (I will return to the significance of the word "again" later on in these remarks on sentence.) Police then came to the company's premises and arrested the offender. 5 She participated in an electronically recorded interview and told police that she had used the money to fund her gambling addiction. It seems to be accepted by the Crown that the money has simply been lost through gambling. There is no suggestion that the offender has used the money to purchase anything or to fund an extravagant lifestyle. Indeed one of the circumstances relied on by Ms Hawkins for the offender concerns the financial situation in which the offender and her family now find themselves. 6 As I said, when contacting her uncle the offender told him that she had done it "again". This is a reference to the offender's misconduct while working for a different company for which she was sentenced on five offences of embezzlement with a further ninety-two appearing on a form one. 7 Using an identical means of operation she was able to illegally obtain $120,000 from her former employer Peacock Brothers. For four of the offences she received a suspended sentence for twelve months but for one of them the suspended sentence was for eighteen months. The offender breached the conditions of the bond by committing this further offence in 2009, although the bond had only a few days to run when she committed the first act involved in the 2009 offence. The $120,000 odd that was obtained was fully repaid, not by the offender but by her uncle. Her parents then had to take on the burden of a mortgage, despite them being on the pension. Because of the offender's now new offending her family will suffer significantly so in a financial way. As I mentioned the new offending involves a loss to the company of approximately $540,000. I will make orders shortly that the contents of Ms Ammari's bank account, some $48,800 odd will be repaid to the company but in broad terms that still leaves a half million dollar loss. 8 I received as evidence a document signed by one of the directors of Ragi Packaging Services setting out the consequences to him and his company of the offender's crimes. They reveal precisely what could be expected, significant financial loss arising not only from the direct actions of the offender in taking money but also consequential financial losses. The company employed others to reconstruct accounts and to put the company's paperwork back into order. The statement also reveals personal loss to people involved in the company, in particular the author of the statement who says that he is on antidepressant tablets and sleeping pills. That is entirely the sort of consequence that can be expected from gross misconduct of this kind. It is entirely foreseeable harm which the offender must have been aware of as she committed her offences. 9 The offender had an unremarkable upbringing. She is now thirty-one years of age. Her family were stable and secure as she grew up. Her parents were hardworking and she was always well provided for. No other member of the family has committed a criminal offence. Problems started for the offender after she married at the age of twenty-seven. Although the first few years of the marriage were good, eventually she separated from her husband before her daughter was born. He has never seen their daughter. She also took upon herself the burden of a mortgage. It was in those circumstances that she began to gamble. That explains where $120,000 from the earlier matter has gone and the half million dollars from the later matter. Gambling is promoted as a harmless activity but in truth to many people it has the effect of destroying many aspects of their lives. But it must be recognised that people like Ms Ammari have a choice. They are not powerless to resist the urge to gamble. Once Ms Ammari had gambled away all of her own money she was then faced with a choice, would she continue to gamble, obtaining money illegally to do so or would she simply stop. It was her decision to keep gambling, it was her decision to embezzle money from her employer so that she could do so. It is true that in her mental state she was less able to reason about the wrongfulness of her conduct but she did have, as I have just explained, a choice as to whether she would commit these offences or not and in particular having offended on one occasion and having realised the consequences of her gambling behaviour, she had a choice about whether she would do it a second time. 10 Another matter of relevance concerning gambling is that it is so common an explanation for offences of this type that if it had a significant impact on the sentence to be imposed upon a person it would significantly reduce the deterrent effect of sentences for this sort of crime. I do have to say that it appears that the decision to impose a suspended sentence on Ms Ammari did her no favours at all. In common with most people who receive the benefit of a suspended sentence of imprisonment all she heard was that she did not have to go to gaol. It is entirely possible that by receiving the suspended sentence she failed to have brought home to her the consequences of committing criminal offences. Even now she seems to be unaware of the reason that I will be imposing a significant sentence upon her, a significant sentence of imprisonment. 11 She has been in custody since 7 October and says that gaol is not the place for her. In many respects gaol is not the place for anyone but she must go to gaol for a significant period of time for a number of reasons, the most important of which is perhaps the need to punish her for her wrongdoing. She also needs to be deterred from future misconduct of this kind and I note in this respect that whilst she was employed up until the time she went into gaol on 7 October she had not told her most recent employer about her criminal history, a matter that she agreed today meant that she was effectively being dishonest. In Ms Ammari's case there is a need, more than most, to specifically deter her from future offending and finally of course she needs to go to gaol so that others in her position might be deterred from doing what she has done. Corporations can only really conduct their business by placing their trust in their employees. The offender, as is inherent in offences of embezzlement, has breached that trust in a significant way. The law is clear that when offenders such as Ms Ammari are detected substantial sentences must be imposed upon them in order to ensure the deterrent aspect of the criminal law. 12 Ms Ammari's offending was very serious indeed. Three particular factors point to that conclusion. The first is that there were multiple criminal acts involved, not only did she contact a significant number of the customers but she also covered up her misconduct through other dishonest activity and every time she went to her bank and withdrew money from it she was reminded of her ongoing criminality. The second aspect of relevance to an assessment of the objective gravity of her conduct concerns the amount involved, a very significant amount indeed. The third aspect concerns the length of time over which her offending occurred, more than six months. Nor is there any suggestion that Ms Ammari was going to stop voluntarily. The only reason her offending came to an end was because it was detected. 13 Ms Hawkins recognised that the hardship that has been occasioned to Ms Ammari's family was not exceptional but because of the circumstances I will shortly outline the offender will do her time in custody harder than would otherwise be the case. As a result of her offending her parent's home will have to be sold. Another result of the offender's crimes is that her elderly parents have to care for her five year old child and because of a decision made by Ms Ammari her child is not even seeing her since she went into custody. These sorts of consequences are commonplace when breadwinners are sent into custody and so Ms Hawkins is right to say that the hardship is not exceptional but I repeat Ms Ammari's knowledge of what she has done to her family will make her time in custody harder than it would otherwise be. 14 Ms Ammari was remorseful in giving evidence before me today. She is, I am satisfied, ashamed and disgusted with her behaviour, particularly because of the effect it has had on her family but also because of the effect it has had on her employer. Despite my finding that her expressions of remorse are genuine it does not mean that the offender is unlikely to re-offend or that she has good prospects of rehabilitation. I cannot make those findings at all. There are areas of Ms Ammari's behaviour which are of a great deal of concern and I am not at all satisfied that upon release from custody she is capable of leading an honest lifestyle without considerable assistance. 15 I accept, as Ms Hawkins, said that a little bit of gaol will go a long way for the offender. Gaol is a terrible place, deprivation of liberty is but one aspect of a person's time in custody. What is perhaps more awful is the sort of person that you have to deal with, Ms Ammari will not easily fit in with many offenders in prison. More than most, I expect that the sentence of imprisonment I will impose upon Ms Ammari will have a personal deterrent effect upon her. Were it not for that circumstance the sentences I will shortly announce would have been significantly longer. 16 I will discount the sentence I would otherwise have imposed upon Ms Ammari for the new offence by twenty-five per cent to reflect the utilitarian value of her plea. Because the principle of totality is of application here I have no alternative but to revoke the order for suspension made in the first offence but I will not impose a sentence for the second offence which is totally cumulative nor however will I make it totally concurrent for these separate acts of criminality. Ms Ammari needs to be separately punished. 17 I take into account that for almost eighteen months she was serving her sentence in the community without committing further offences in deciding the extent of the accumulation. The Crown concedes that there are special circumstances in this case, it is the offender's first time in custody and as I think I have made clear she will need an extended period of supervision on parole in order to promote her rehabilitation. The orders I make therefore are these. 18 I revoke the order for suspension concerning the offence of embezzlement which the offender was dealt with in the Local Court and sentenced to imprisonment for eighteen months. I therefore set a period of imprisonment of eighteen months, to date from 7 October 2010. That is a fixed term for the sentence because of the sentence I will now announce. In the matter on indictment the offender is sentenced to imprisonment. I set a non-parole period of eighteen months, to date from 7 April 2011 with a head sentence of three and a half years. That means that the overall effective sentence consists of a non parole period of two years, to date from 7 October 2010 and a head sentence of four years. The offender is eligible to be released to parole on 6 October 2012. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.