The Queen v Foley [2001] ACTSC 109 (15 November 2001)

Last Updated: 19 March 2002

THE QUEEN v NADIA FOLEY [2001] ACTSC 109 (15 November 2001)

CATCHWORDS

CRIMINAL LAW - sentence - stealing from employer - whether offender suffering from pathological gambling condition and major depressive disorder good vehicle for general deterrence - authorities considered - custodial sentence suspended upon entering recognizance

R v Talbot (1992) 59 A Crim R 383

R v Masolatti (1976) 14 SASR 124

Hurd v R (1988) Tas R 126

R v Kilmartin (1989) 41 A Crim R 22

R v Champion (1992) 64 A Crim R 244

Halsey v Haynon [1992] NTSC 34; (1992) 107 FLR 408

Parnis v R [1993] FCA 624; (1993) 49 FCR 304

Lauritsen v R [2000] WASCA 203; (2000) 22 WAR 442

R v Jepsen (unreported, ACTSC, 15 November 1996, SCC No 123 of 1996)

R v Dukes (unreported, ACTSC, 29 August 1997, SCC No 87 of 1997)

R v Parker [2000] ACTSC 68 (11 August 2000)

R v Kaiser (unreported, ACTSC, 23 May 2000, SCC No 249 of 1999)

No. SCC 123 of 2001

Judge: Higgins J

Supreme Court of the ACT

Date: 15 November 2001

IN THE SUPREME COURT OF THE )

) No. SCC 123 of 2001

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: THE QUEEN

Plaintiff

AND: NADIA FOLEY

Defendant

SENTENCE

Judge: Higgins J

Date: 15 November 2001

Place: Canberra

1. The offender, Nadia Foley, has pleaded guilty to stealing $77,893.11 in cash over a period between 1 July 1998 and 31 October 2000 from Ticketek Pty Ltd.

2. She was, in fact, employed from 1991 as the merchandising and ticket sales manager at the Canberra Raiders' shop which operated out of the Canberra Raiders Club at Mawson. Her duties included selling Raiders' memorabilia and other goods as well as tickets to football games and other events. The money for the sale of tickets was to be banked and accounted for to Ticketek Pty Ltd. It is not clear to me whether the tickets issued through the Ticketek terminal were, until the thefts came to light, ever reconciled with the monies banked.

3. In any event, it was not until 21 December 2000 that Ticketek management noted that there had been a discrepancy between the tickets issued and the monies credited to Ticketek.

4. At first the offender said she would need to look for the relevant paper work but, in fact, she had approached Ticketek's auditor, Mr Carpenter, and offered to deposit $34,000 when the discrepancy had been drawn to her attention. The offender then confessed that she had taken money from Ticketek sale proceeds.

5. She was then spoken to by Mr Kevin Neill, the Chief Executive of the Canberra Raiders. She confirmed to him that she had stolen money from ticket sale proceeds and was, of course, immediately dismissed from her employment.

6. The offender was not interviewed by police until 19 April 2001. I am told that interviewing police were favourably impressed by the genuineness of her remorse and the co-operation she extended to them. She did not seek to minimise or excuse her behaviour.

7. The delay was no doubt distressing to the offender but it was, I infer, necessitated by both the need to ascertain the extent of the deficiency and because Mr Neill did not wish to make a formal complaint before Christmas, out of compassion for the offender who was clearly distressed about what she had done.

8. The offender is a woman of past good character, highly regarded by all who knew her. She was a diligent and conscientious employee. How then, did she breach her employer's trust in her so grievously?

9. In 1996, the offender's father died. She had been very close to him. Ms Kate Barrelle, psychologist, concluded in her report of 10 May 2001 that the offender had suffered "prolonged and unresolved grief" as a result. She did thereafter commence playing poker machines at the Raiders Club, effectively to relax and distract herself from that grief. She probably concentrated more on work as a result of the same influence. However, her gambling, though significant, was not of problem proportions.

10. In mid-1998, however, a significant event occurred. She was asked to lend some of the Ticketek money to the Club Operations Manager to supplement the poker machine float. She gave him a bundle of notes she believed totalled $5,000. Such temporary use of those funds did occur from time to time. However, the next day the manager returned only $4,500 to her. He said that his reconciliation indicated that to have been the sum he received. The offender could not, of course, verify that assertion then and there. She put the $4,500 in the storeroom intending to later carry out her own reconciliation with her records. Other duties distracted her and she did not go to get the money till the next day. She then found the money was missing from the storeroom. She was greatly distressed and was too afraid to tell her supervisor or Mr Neill. She felt she had let him down and would have destroyed his faith in her. In desperation she stole money from the Ticketek proceeds in order to try and replace the money by playing the poker machines at the Raiders Club.

11. That led to a vicious cycle of stealing more to make up the past further losses. She lost control of the process about mid-1999. From there on, the poker machine playing became an entrenched addiction engaged in to alleviate the depressive state into which she had fallen rather than to try to make up past losses. She told Ms Barelle that while she was playing the poker machines "I could just forget about everything."

12. Her depressive state, according to Ms Barelle was a Major Depressive Disorder (Appendix B(1)-DSM-IV). It had started with the death of her father. It stepped up dramatically with the loss of the $4,500. From then on the cycle of theft and losses fed the depressive illness further.

13. She became suicidal. She made a serious attempt at suicide after Ticketek began to seek records to enable them to reconcile the receipts in September 2000. She resiled from that attempt out of concern for her husband.

14. Ms Barelle considered that the offender had also, by this time, developed a pathological gambling condition (Appendix B(2)-DSM-IV).

15. Of itself, such a state, though a mental disease, would not warrant leniency. It does explain the behaviour of the addicted person but it does not excuse their use of others property to satisfy their addiction. It is analogous to a person suffering drug addiction committing crimes to satisfy that addiction.

16. Nevertheless, it helps to explain why a person of otherwise good character would commit such crimes as this offender has done. It also points to the greater weight which may be accorded to rehabilitation.

17. What then of the character of the offender? A number of testimonials were tendered. They all speak in glowing terms of her integrity, compassion and eagerness to please and serve others. All were shocked by the revelation that she had stolen money from her place of work. Two such testimonials are of particular note. It should be noted that although monies intended for and belonging to Ticketek were stolen, it was the Canberra Raiders organization which bore the brunt of the loss. It had to compensate Ticketek.

18. Donald John Furner, former Raiders' coach and current General Manager (Sponsorship and Business) attested to the offender's character. He praised her understanding, compassion and patience. The misappropriation of funds was, he considered, "totally out of character." He concluded:

" I still regard Nadia as a person of very good character and honesty, who is truly sorry for her actions. I believe she was caught up in the circumstances of time, which made her make irrational decisions."

19. That expression of opinion is remarkable enough given that the Canberra Raiders organisation is the true victim here. It is not, however, the only such opinion from Raiders' executives. Mr Kevin Neill, Chief Executive of the Raiders, came to Court to offer his personal testimony and support for the offender.

20. He stated that when he was first told of the offender's misappropriations he was very angry but when he considered the matter further:

"I could not get out of my mind the good things she'd done."

21. His view of her was consistent with that of Mr Furner.

22. This leads to a consideration of the genuineness of the offender's remorse.

23. She has made full and frank admissions as soon as it became apparent that her defalcations were about to be revealed. There was an offer of amends even before an audit had been done. Of course, as against that it was not honoured and turned out to be nearly half of the gross sum later found to have been misappropriated.

24. Early in February 2001, the offender sought assistance, realising that she had a serious problem. For that purpose she consulted Ms Kate Barrelle, a clinical psychologist. She found the offender to have "a deep sense of shame and remorse." Despite her actions, she had a sense of strong loyalty to her employer. She expressed anxiety to make "retribution" (sic - "restitution") for her offence. Her reported presentation was such that I would accept that her remorse was genuine.

25. She sought counselling from Lifeline on 16 February 2001. She has made excellent progress according to Ms Anderson, a Lifeline counsellor.

26. Those expressions of remorse were confirmed by the Pre-sentence report.

27. In addition, the offender gave evidence before me expressing directly her deep sorrow for the offence and her personal shame and disappointment. She expressed the desire to make amends. Indeed, she stated that she was intending to commence with a repayment of $20,000 from the recent sale of the family home. This repayment is to be out of her share of the nett proceeds of that sale.

What then of her prospects for rehabilitation?

28. Ms Anderson, the offender's Lifeline counsellor, reports that she has made and will continue to make "excellent progress" not merely in dealing with her gambling addiction but also related issues.

29. Having regard to the character evidence given as well as the long period of exemplary service to the Raiders, attested to in glowing terms by its most senior executives, it seems to me that I can and I do accept that there is little likelihood of the offender relapsing into offending behaviour. In other words, not only is rehabilitation a strong prospect, it has largely been achieved and that by the offender's own initiative.

30. I have to say that the impression I gained of the offender when she gave evidence was consistent with the other evidence as to her character and prospects for rehabilitation. I also accept the genuineness of her desire, even need, to make reparation to her former employer.

The "just and appropriate" sentence.

31. It is never easy, in cases of this kind, to arrive at a just sentence fair to both the offender, the victim and the community. The powerful subjective factors in this case tend strongly towards a response that will be regarded as lenient. The kind and scale of the offence raises the need for general deterrence. So also does the fact that such offences, even if enabled by a lack of sufficient scrutiny or supervision, are the result of a grave breach of trust. Such a breach may well be by a trusted and well-regarded employee in respect of whom effective security measures would be regarded as otiose.

32. I have been offered some guidance by reference to authority.

33. So far as the nature of the offence is concerned it falls squarely within those cases where the offending behaviour is engaged in for the purpose of satisfying the craving of an acquired addiction.

34. Although the existence of the addiction may explain the behaviour, it does not excuse it. Nevertheless, it is relevant to examine how the addiction was acquired to assess properly the degree of moral responsibility of the offender in acquiring it and, hence, in acting to satisfy it.

35. That factor was considered to be of importance in R v Talbot (1992) 59 A Crim R 383 where the lack of moral culpability in the offender in the acquisition of the relevant addiction was considered to be a sufficiently exceptional mitigating factor to warrant a sentence not including immediate custody, even for an armed robbery.

36. Further, there is the consideration that persons who engage in criminal acts by reason of or in consequence of a mental disease or defect are an inappropriate vehicle to convey general deterrence. See R v Masolatti (1976) 14 SASR 124 (SASC Full Court); Hurd v R (1988) Tas R 126 (Tas CCA); R v Kilmartin (1989) 41 A Crim R 22 (Vic CCA); R v Champion (1992) 64 A Crim R 244 (NSWCCA); Halsey v Haynon [1992] NTSC 34; (1992) 107 FLR 408 (NTCCA); Parnis v R [1993] FCA 624; (1993) 49 FCR 304 (FCAFC on appeal from ACTSC); Lauritsen v R [2000] WASCA 203; (2000) 22 WAR 442 (WACCA).

37. I was also referred to a number of matters in this Court following pleas of guilty by persons in similar circumstances to this offender.

38. In 1996, Deborah Kathleen Jepsen pleaded guilty to a series of thefts. She stole about $130,000 over a two year period from her employer. Restitution was, however, impracticable, though as the sentencing judge, Gallop J, noted, restitution is a very relevant factor in favour of mitigation. The offender suffered from a gambling addiction. She was in the depths of despair. She expected to be caught and to then commit suicide. She confessed her offences before detection. She was in ill-health physically though not otherwise mentally. The offender was sentenced to 5 years imprisonment. A non-parole period of 18 months was set (see R v Jepsen (unreported, ACTSC, 15 November 1996, SCC No 123 of 1996)).

39. In R v Dukes (unreported, ACTSC, 29 August 1997, SCC No 87 of 1997), Miles CJ sentenced an offender who pleaded guilty to stealing from his employer ACTION bus tickets to the value of $24,000.

40. His Honour said:

"Ultimately, I think the community would really be outraged if I did not consider very seriously a custodial sentence because the message must go out that people are not entitled to help themselves to an employer's property...."

41. In that case neither a community service order nor periodic detention could for various reasons be imposed. The offender was sentenced to two years imprisonment but released forthwith on recognizance, inter alia, to be of good behaviour for five years and pay a penalty of $5,000 to the Territory. (I assume the tickets were returned when the offender was apprehended).

42. It was a single theft, though there were sustained efforts to "fence" the tickets. There was some stress and depression suffered by the offender, though not to the point of psychiatric illness.

43. In R v Parker [2000] ACTSC 68 (11 August 2000), Crispin J had to consider a sentence for a mother of three young children who had acted out of character in misappropriating, over a six month period, $178,230.67 from the Commonwealth, her employer. Due to work and family pressures, she developed a pathological desire to gamble on poker machines. She was losing up to $1,000 per day.

44. However, it was not the pursuit of the elusive goal of wealth which motivated her. As with this offender it was not "simple greed or the seductive thrill of winning." It was engaged in as a psychological refuge from her life problems and stresses. She was genuinely remorseful. She had made significant progress since her apprehension, submitting to counselling and psychological treatment.

45. The gravity of the offences persuaded his Honour that some time in custody had to be served. The need for general deterrence, though much reduced, could not be wholly disregarded. Imprisonment for two years, with release on recognizance after four months, was imposed.

46. I note that, although the offender in this matter committed her acts of theft over a longer period, a much smaller amount was removed. I have to say also, that, compelling though Ms Parker's personal circumstances may have been, they were not as compelling or so imposed by unexpected misfortune as was the case with this offender.

47. Perhaps less different was the case of R v Kaiser (unreported, ACTSC, 23 May 2000, SCC No 249 of 1999). The offender's motivation to steal from her employer was driven by a desire to escape the stress of a difficult home situation. She also suffered from a severe level of depression. The amount taken was somewhat less ($55,000) than in the present case but the offender was much younger and so had a lesser period of proven good character to call upon. Full restitution had, however, been made. Sentence was deferred subject to a three year good behaviour recognizance with supervision.

48. In the present case whilst the sums removed, calculated by reference to the general deficiency, seem clear enough, the nett loss to the offender's employer is not the same figure.

49. Whilst the "outstanding" figure was $77,893.11, outstanding bankings made on 12, 13 and 15 December 2000 reduced that sum to $74,522.81. That represented the amount wrongfully removed by the offender. Ticketek, for reasons not explained, "waived" a further $9,278.70. Thus the total paid by the Canberra Raiders' to Ticketek was $65,244.11. That sum is very large but the offender accepts responsibility for it. There is also the fact that all of the misappropriated monies were returned to the Canberra Raiders' poker machines so that some portion of it would have inflated the profits earned by the Raiders Club. It is not possible for me to calculate that benefit so I simply take account of it as lessening the impact of the offence on the ultimate victim. There was also a sum of $600 being the cost toTicketek of its audit.

50. I do not consider that a wholly non-custodial sentence, such as Crispin J imposed in Kaiser, is appropriate. The offence was simply too serious a breach of trust for any lesser response. Nevertheless, the personal circumstances and mitigatory factors, save for the important matter of restitution, are at least as compelling. Thus I propose to proceed as follows.

NADIA FOLEY Stand:

51. On the single count of stealing to which you have pleaded guilty I record a conviction and sentence you to two years imprisonment but I direct that you be released forthwith upon entering into a recognizance, self in the sum of $2000 to be of good behaviour for a period of four years from today.

52. It is a further condition that for that period you are to be subject to the supervision on probation of the Director, Corrective Services ACT, or the nominee or nominees from time to time appointed by the Director and to obey the reasonable directions from time to time given by the Director or nominee as the case may be. Such directions may include, but are not limited to, attendance at and submission to counselling or other relevant psychological or psychiatric therapy.

53. It is a further condition that you make restitution as follows:

(i) To Ticketek Pty Ltd, the sum of $600;

(ii) To Canberra Raiders the sum of $65,244.11;

by such instalments at such intervals as shall from time to time be specified.

I certify that the preceding fifty three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice

Associate:

Date: 15 November 2001

Counsel for the Crown: Ms M Jones

Solicitor for the Crown: ACT Director of Public Prosecutions

Counsel for the offender: Mr S Gill

Solicitor for the offender: pappas j - attorney

Date of hearing: 29 October 2001

Date of sentence: 15 November 2001