New South Wales Court of Criminal Appeal CITATION: Kartono v R [2009] NSWCCA 88 HEARING DATE(S): 05/03/2009 JUDGMENT DATE: 6 April 2009 JUDGMENT OF: Beazley JA at 1; Blanch J at 2; Howie J at 3 DECISION: Application for leave is granted but the appeal is dismissed. CATCHWORDS: Criminal Law - Sentence - Dishonesty offences against employer - relevance of motive - involuntary restitution - whether sentences manifestly excessive. LEGISLATION CITED: Crimes Act 1900 - ss 300, 178BA CATEGORY: Principal judgment PARTIES: Marsiana Kartono v Regina FILE NUMBER(S): CCA 2007/8510 COUNSEL: J Dwyer - Crown Self - Applicant SOLICITORS: S Kavanagh - Crown Self - Applicant LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2007/8510 LOWER COURT JUDICIAL OFFICER: Ashford DCJ IN THE COURT OF CRIMINAL APPEAL 2007/00008510 BEAZLEY JA BLANCH J HOWIE J MONDAY 6 APRIL 2009 Marsiana KARTONO v REGINA Judgment 1 BEAZLEY JA: I agree with Howie J. 2 BLANCH J: I agree with Howie J. 3 HOWIE J: The applicant was sentenced in the District Court by Ashford DCJ (the Judge) for three dishonesty offences arising from the applicant's employment at the time the offences were committed. The offences were 1 count of using a false instrument contrary to s 300 of the Crimes Act and 2 counts of obtaining a benefit by deception contrary to s 178BA of that Act. The maximum penalty for the s 300 offence is imprisonment for 10 years and for each of the s 178BA offences imprisonment for 5 years. The s 300 offence was committed on 1 May 2007 and the other two offences on 14 July and 11 August 2006. In respect of the s 300 offence there was a matter on a Form 1, being a s 178BA offence committed on 14 July 2006. 4 The applicant was sentenced in total to a term of imprisonment comprising a non-parole period of 3 years and 6 months and a balance of term of 2 years and 6 months. The applicant is eligible for release to parole on 28 December 2010. 5 The facts can be summarised as follows. On 19 June 2006 the applicant commenced employment with Sanofi-Aventis as payroll manager. She had secured that position through an agency by the use of a false name and false references. 6 On 14 July 2006 the applicant transferred the sum of $105,000 into an account in the name of Anthony Lai. That money was due on his retirement to Mr Cole, one of the employees of the company. He noticed that the money had been transferred into an account that was not connected to him and raised a query about it. The applicant told her superior that it was a mistake. She was able to convince this person that the money had been transferred to Mr Cole's personal account and not the superannuation fund as he had requested. 7 On 16 August the applicant told her superior that she had received a bank cheque for $100,000 from Cole. She showed her a photocopy of a cheque. These funds were later cleared into the company's account, but the sum of $5,000 remained outstanding. Inquiries revealed that the $100,000 had been paid out of an account belonging to Tat Hin Lai and Thian Moy Wong. On 22 August 2006 the applicant's employment was terminated because of unsatisfactory work performance. This matter gave rise to the offence on the Form 1. 8 After the applicant had left that employment, a payroll officer was informed in October 2006 that the company had not paid its payroll tax for the preceding June. Investigations of the company's records revealed that money had been drawn to pay the tax in the sum of $351,376.04, some $200,000 more than was due and a further sum of $125,387.04. Further inquiries showed that the applicant had contrived to have these amounts paid into an account in the name of Tat Hin Lai and Thian Moy Wong. It is unnecessary to detail the way she achieved this result but it involved her deceiving other employees to authorise the payment into an account that the applicant pretended was that of the NSW Office of State Revenue. This conduct gave rise to the two offences of obtaining a benefit by deception. 9 The company then instructed a firm of solicitors to recover the sum of $481,763.08 plus interest from the accounts of Lai and Wong into which the money had been paid. Orders were made in the Supreme Court to preserve the assets of the account holders. The solicitors engaged the services of a firm of private inquiry agents to serve documents upon Lai and Wong. On 27 October 2006 one of the employees of this firm attended at the new address of these persons. No one was at home but a note was left indicating the attendance of the agent. 10 That afternoon the agent received a phone call from a female person calling herself Marsiana and arrangements were made for them to meet at the address. On 28 October the agent attended the address and spoke to Marsiana who said she was the niece of Wong and Lai. She indicated that they were travelling interstate in Victoria. The agent later identified the person he spoke to as the applicant. 11 On 20 November 2006 the applicant was made a party to the Supreme Court proceedings. 12 On 21 March 2007 the applicant attended at Ryde Police Station and was arrested. When interviewed she stated that it was her half-sister, Bianca, who had committed the offences. Police checked with immigration authorities who had records of the arrival in Australia of the applicant but not of a person named Bianca Kartono. When informed of this, the applicant accused the authorities of falsifying the immigration records. She told the police that Bianca had deposited the funds into the accounts of persons, whom she said were the applicant's aunt and uncle, without their knowledge. The applicant told police she would try to find Bianca and tell her to contact police. 13 Investigations by police revealed that Wong and Lai were actually the applicant's parents and Anthony Lai her brother. It was also discovered that a person named Bianca Kangto was aged 11 years old. On 29 June 2007 the applicant was charged with these offences. 14 The charge under s 300(2) of using a false instrument arose from the applicant's employment with the AIH Group, a company that operated four restaurants in Sydney city. On 8 January 2007 the applicant commenced employment as a payroll officer under the name of Anna Wong after being interviewed by a recruitment agency. She supplied the agency with false information. 15 On 12 January 2007 the Finance Manager of the firm wrote out 17 cheques for superannuation payments for staff members. The cheques were authorised and handed to the applicant to be entered into the records and then sent to the payees. 16 The applicant left this company on 26 February 2007. On 27 March the company became aware that the 17 cheques had not been presented. Inquiries revealed that the payees had not received them. A stop was placed upon the cheques. 17 On 26 April 2007 a solicitor from the firm undertaking action against the applicant contacted her in relation to payment of $614,308.72 as a result of a Supreme Court order. The applicant was informed that action would be taken to recover the debt after 28 April. The applicant said that they had received money from a family friend but declined to name the person. Arrangements were made for the applicant to attend at the solicitors on 30 April with a bank cheque for the amount owed. 18 On 30 April the applicant attended upon the solicitors. She had a St George Bank cheque for an account in the name of the AIH Group and payable to a superannuation fund. That payee had been crossed out and the name of the firm of solicitors inserted. The amount of the cheque had apparently been altered and replaced with a sum of $648,000. The cheque was handed back to the applicant because it was not a bank cheque. The applicant was asked why the cheque was in the name of AIH Group and she stated that had been given by a family friend. The solicitor contacted the AIH Group. 19 On 2 May 2007 a St George cheque was paid into the solicitor's account. The cheque was in the name of the AIH Group. Inquiries revealed that the cheque was one of the 17 cheques given to the applicant when she worked for that company. The applicant was identified as the employee who had received the cheques and the police were contacted. Investigations revealed that the applicant had deposited the cheque into the solicitor's account. The cheque had originally been drawn in the sum of $1038.46 and dated 12 January 2007. 20 The applicant was arrested on 29 July 2007 and refused bail. A search warrant was executed at premises where the applicant had been living and another cheque in the name of the AIH Group was located. 21 The applicant was born on 23 October 1973. She had no prior criminal record. There was in evidence a psychologist report. This revealed the following information about the applicant. She was born in Jakarta and came to Australia with her parents when she was aged 8 years. She apparently adjusted well to her new environment but her parents did not. At the date of the report her father was retired but her mother worked in housekeeping. The applicant said that she had accepted the responsibility of assisting her parents whenever possible including caring for her younger brother. The psychologist opined that the applicant had become over-protective of her family and generally lived at home despite attempts at independence. 22 The applicant claimed that the offences were committed because of desperation as a result of financial difficulties at the time associated with purchasing a property for the family. She believed that she felt under pressure to solve the family's financial problems. She expressed remorse but largely for the impact of the offences upon her family. The applicant claimed that she felt anxiety as a result of the financial pressures but that she had to try to ease the burden of the situation upon her parents. The psychologist believed that she could benefit from treatment to allow her "to manage better emotionally and cope with stressors more appropriately". 23 There was a pre-sentence report in evidence. It indicated that the applicant disputed the police facts and claimed that the cheques in her possession had been cancelled and were to be destroyed. It summarised the offending as follows: The offender's promising career had advanced and she was working long hours. An intended new home purchase was not working out as envisaged, banking finance, built in penalties in a contract and leveraging against her parents' home had caused unforseen pressure and stress. These events thus gave rise to poor decision making by the offender who did not confide in others. [The applicant's] family remains close and supportive and they are looking forward to their daughter's return. 24 The Judge noted the importance of general deterrence and that "the community rightfully expect proper punishment for such breaches of trust". She stated that consideration had to be given to the amount of money defrauded, any degree of planning, "the abuse of trust factors", whether there has been any restitution and the effect upon the victims. Her Honour found that there was "a serious breach of trust" and noted that the applicant had obtained her employment by the use of false names and references. She also found there was "a large degree of planning". The Judge assessed the degree of objective criminality as falling "within the mid range of objective seriousness". The applicant was given the benefit of a discount of 25 per cent for the plea of guilty. 25 The Judge referred to the psychologist report and the pre-sentence report. She stated: It seems that she does have a strong involvement with her family and indeed it was because of such involvement to a degree that she engaged in these offences from the facts before me. ………… I accept that she did consider there to be some pressing financial need to assist her family in committing these offences. However that does not excuse her behaviour but under the circumstances I am prepared to find special circumstances. 26 Her Honour imposed the following sentences: Count 2 Non-parole period of 18 months from 29 June 2007 balance of sentence of 12 months. Count 3 Non-parole period 2 years from 29 December 2007 balance of sentence of 12 months. Count 1 Non-parole period of 2 years 6 months from 29 June 2008 to expire 28 December 2010 with a balance of sentence of 2 years 6 months. 27 The grounds of appeal relied upon are that the Judge: "1. Erred in failing to give sufficient weight to the fact that the Appellant (sic) had no prior convictions and that the Applicant had never previously been in custody. 2. Erred in failing to give sufficient weight to the Applicant's psychological stresses caused by financial difficulties confronting the Applicant's family as outlined in the Psychologist's Report tendered on sentence. 3. Erred in failing to properly adjust the non-parole period to reflect the finding of special circumstances. 4. Erred in imposing a sentence in respect of the count of using a false instrument (s 300 of the Crimes Act 1900, NSW) which was excessive in the circumstances. 5. Erred in failing to give sufficient weight to the fact that some reparation had been made by the Appellant." (sic) The applicant's counsel's written and oral submissions on these grounds were very brief. I can, therefore, take the liberty of answering them briefly. 28 Counts 1, 2 and 4 are answered by considering the sentences imposed. Her Honour was correct to partially accumulate the sentences as she did, for to do otherwise would not have resulted in a sentence that reflected the total of the applicant's criminality. These offences were marked by seriously fraudulent activity in breach of her position of trust which itself was obtained by fraud in each case. They were separate acts of criminality even though they were committed through the same motivation, to address the family's financial difficulties. The s 300 offence carried a maximum penalty of 10 years imprisonment and the sentence had to reflect the matter on the Form 1, which was itself serious. 29 The fact that the offences were committed in order to help meet the financial difficulties into which her family fell was of little mitigation. The simple fact is that the family intended to build an investment property even though it was one in which they would live. It was to cost them $1.5 million yet her parent's existing home was valued at $385,000. In effect they bit off more than they could chew. In any event the motive for such criminal conduct as the applicant committed against her employers is rarely mitigating. Given the planned nature of the offences and the separate and distinct criminality involved, it was of little weight that she had not previously had any criminal convictions. There was little remorse shown for her conduct and she brazenly tried to lie her way out of trouble from first to last. 30 Ground 3 is answered by the fact that the non-parole period is 71 per cent of the total sentence and, therefore, it was reduced from the statutory ratio as a result of the finding of special circumstances. The non-parole period had to reflect the seriousness of the offending, and both general and specific deterrence. No lesser sentence would have achieved that result. In any event 12 months is more than adequate for the applicant to attempt to rehabilitate herself on release from custody. 31 Ground 5 is answered by the fact that the reparation was not voluntary, but was a result of action taken on behalf of the company in the Supreme Court. There is little mitigation in that fact but her Honour took it into account. There was still a considerable amount of money outstanding. 32 I propose that the application for leave be granted but the appeal be dismissed. ********** 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.