STATE OF TASMANIA v H 23 NOVEMBER 2021 COMMENTS ON PASSING SENTENCE
Mr H you have pleaded guilty to a number of counts of computer related fraud and fraud.
Your offending occurred over the period from February 2017 to March 2018. The total loss caused by your conduct is $28,613.38.
Your crimes were committed against the New Norfolk Golf Club. You were its Treasurer. You held that role in a voluntary capacity from November 2016. As Treasurer, you were responsible for the financial management of the club including paying all liabilities incurred and being responsible for all incoming monies including sponsorship and membership fees. At the time you commenced in that role, the club operated an ANZ bank account. In mid November 2016 you opened an account with MyState Bank a course which had been approved by the club committee. That account was used to pay wages, accounts and bills associated with the running of the club. The ANZ account, was used predominately to process EFTPOS transactions. It had an online capability so that fund transfers between the two accounts to which I have referred could occur. Shortly after the MyState account was opened, you activated internet banking on that account, with the knowledge of the President, but you were the only person who knew the login details and passwords. In January 2017 two debit cards were issued on that account, one in your name and one in the name of the President. You had permission to use the card but only for club business.
You held a position of trust at the club having access to both accounts as required in order to discharge your obligations as Treasurer.
In May 2018 you resigned from that position for health reasons. Another person took over the role and in 2018 he reviewed the club’s accounts and financial records. It was discovered that you had used the club’s MyState debit card at EFTPOS machines or provided the cards details to various websites in order to conduct 30 unauthorised transactions. These occurred between 3 February 2017 and 22 July 2017, 13 September 2017 and 27 November 2017, between 21 December 2017 and 19 January 2018, and again on 1 March 2018.
You used those funds to pay for your hospital and medical bills, airline travel and other travel costs and goods and services not authorised by the club. In addition you used the MyState debit card at various automatic teller machines in and around Hobart to withdraw cash for your personal use. In total 30 unauthorised transactions conducted by you totalled $11,113.38. The review also discovered that on seven separate occasions you electronically transferred funds from the club’s ANZ and MyState bank accounts to your own personal savings account in the amount of $17,500.00.
In about August 2018 once the extent of the loss was known you were confronted about the matter. You admitted having used the club’s money as your own and you said that you had been battling. You agreed to repay the money when your house was sold, however, when a representative of the club attempted to place a caveat on your property, a course you had agreed to, it was discovered that you were an undischarged bankrupt and another creditor had already placed a caveat on the house. This had been in place since 2012 when you had been declared bankrupt. The money you have taken remains unpaid.
On 4 October 2018, after the matter was reported to police, you attended the Bridgewater Police Station and participated in an interview. You denied using the debit card yourself telling police you got involved with a Spanish woman, who you did not name and you said that you gave her the card and the login details for the club’s bank accounts. You told police that this woman had conducted all of the electronic transfers from the club’s bank accounts and you claimed that she withdrew those amounts in cash using the one of those cards. You admitted knowing about the transfers when they occurred and you said you should not have let her have access to any of the club’s accounts.
The State does not accept that explanation, in relation to the electronic transfers, and your bank statements reveal that the money was used by you to pay for general and household expenses including your mortgage. Some of the money, $5,200, (counts 27 to 29 inclusive), was used by you to travel and stay in the Philippines between 27 August and 18 September 2017.
I have had the benefit of detailed submissions in mitigation. I have regard to them. I have also had you assessed for a home detention order. As to that particular sentencing option you are considered suitable because you are willing to relinquish your employment. That is necessary because your employment otherwise prevents you from providing community corrections with notice of your commitments and activities.
The substance of the plea in mitigation identifies you as the victim of a dating scam. Apparently you met a woman online some time ago, and began engaging online with her. You hoped to bring her to Tasmania at some point. She apparently requested money from you on a regular basis, and you expected to be repaid. She told you that she had been left gold by her grandfather, and that she needed money for the purposes of obtaining that gold, and paying insurance. You claim to have sent all the money you had, leaving yourself with nothing to live on. You then exploited your position as Treasurer of the Club to access more money to cover your own living costs, loans and other bills.
You present with a good work history, having been employed in hotels, management roles, and been employed with a bank, and a client services officer within detention centres throughout Australia. You are presently employed as a taxi driver and have been in that position for five years. You work four days per week and you average eleven hours per day. Commencing at about 4.30am your income is based upon commission. You earn approximately $350 a week from that position, and you use that to pay rent and groceries. As I have noted you will relinquish that role if a Home Detention Order is made.
There is no history of alcohol abuse or mental health issues. You are on medication to treat heart and cardiovascular illness. Those conditions prevent you from undertaking an order involving community service work.
Your offending is serious, and whilst the circumstances which gave rise to it do not fall into the typical category of such offending, for example to fund gambling, there is still a significant impact resulting from your conduct. You too are a victim – a victim of the manipulation of others. At the same time your participation in that activity with this person was directed towards ultimately satisfying your own needs for company, and a relationship. That need is a human one, and I view it empathetically at that level. However, such conduct cannot be condoned, and requires a penalty which deters others. Your offending is aggravated by reason of the position of trust you occupied, and the protracted nature of your offending.
At the same time, I accept that this conduct is out of character for you, and I expect that this entire episode has had a significant impact upon you. I consider that you are unlikely to reoffend, and that the need for personal deterrence in your case is low.
It is the obligation reposed in the Court to punish you for your conduct and to deter others which necessitates the imposition of a strong penalty.
Those relevant sentencing objectives can be fulfilled through the imposition of a term of imprisonment. However, on the basis of your age, the absence of prior convictions, your health and circumstances which have been put to me in mitigation, I have decided to make a Home Detention Order. That such order has a general deterrent effect cannot be doubted and the Court of Criminal Appeal has said as much in DPP vWebb and DPP v King  TASCCA 8.
Mr H I convict you. I will sentence you on the indictment. The sentence of the Court is a Home Detention Order for a period of 15 months. That order is subject to the standard conditions in appearing s 42AD of the Sentencing Act which includes electronic monitoring. I do not make any special conditions. I have previously made a compensation order in favour of the New Norfolk Golf Club.
Do you understand what I have just done Mr H ? I have made you subject to a Home Detention Order. That is because I would otherwise have imposed a term of imprisonment and unless I am satisfied that a term of imprisonment is an appropriate sentencing order I cannot move to consider home detention. On the basis on the report that I have received and the matters put in mitigation I have decided to make that order and it will operate for a period of 15 months.
Total loss $28,613.38
STATE OF TASMANIA v H 23 NOVEMBER 2021 COMMENTS ON PASSING SENTENCE