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District Court 11 November 2010

R v AMMARI

[2010] NSWDC 301

Fraud & dishonesty
CRIMINAL LAW SENTENCE EMBEZZLEMENT CONTINUED OFFENDING PRINCIPLE OF TOTALITY TO BE APPLIED.

Citation: R v Ammari [2010] NSWDC 301
Court: District Court of New South Wales
Date: 11 November 2010
Judge(s): Berman SC DCJ

Background

The offender appeared for sentencing on two related matters. First, she had pleaded guilty in the Local Court to embezzlement committed while employed as a receptionist at a packaging company. Second, the commission of that offence also constituted a breach of a suspended sentence she was already serving for an earlier series of embezzlement offences against a different employer.

The earlier offending involved the illegal obtaining of approximately $120,000 from a previous employer using the same method, resulting in suspended sentences of up to eighteen months. That debt was ultimately repaid by the offender's uncle, not by the offender herself.

The new offending, between May and November 2009, involved the offender redirecting invoice payments from approximately forty customers into her own personal bank account, resulting in a total loss to the company of $540,160.83. The offender admitted to police that she had used the funds to sustain a gambling addiction.

  • Whether the suspended sentence imposed for the earlier embezzlement offences should be revoked following the new offending
  • What custodial sentence was appropriate for the new embezzlement offence on indictment, taking into account the guilty plea, the offender's personal circumstances, and the nature and scale of the offending
  • How the principle of totality should be applied when structuring the cumulative sentences across the two matters
  • Whether special circumstances existed to justify a longer-than-standard parole period

Decision

The court found that imprisonment was unavoidable. The scale of the offending, the substantial loss caused, the existence of prior convictions for materially identical conduct, and the fact that the new offences were committed while the offender was on a suspended sentence all pointed firmly toward full-time custody.

Berman SC DCJ acknowledged several mitigating factors, including the offender's early guilty plea (attracting a 25 per cent discount), her gambling addiction and its relationship to the offending, her first-time experience of imprisonment, and positive prospects for rehabilitation with appropriate support. The court noted, however, that gambling addiction does not eliminate personal culpability. The offender had a choice at each stage and had previously experienced the consequences of identical conduct.

On totality, the court declined to make the sentences for the two matters either fully concurrent or fully cumulative. The offender had served approximately eighteen months of her earlier sentence in the community without further offending, and this was taken into account in calibrating the degree of accumulation. The court revoked the suspended sentence for the first matter and imposed a fixed term of eighteen months for it, then structured the sentence for the new matter to run partially cumulatively.

The Crown conceded, and the court accepted, that special circumstances existed justifying a non-parole period that was proportionally shorter than the statutory norm. The offender's first time in custody, combined with her assessed need for an extended period of supervision on parole to address rehabilitation, supported this finding.

Orders Made

  • The suspended sentence for the earlier Local Court embezzlement offence was revoked, and a fixed term of eighteen months imprisonment was imposed for that matter, commencing 7 October 2010.
  • For the new indictable embezzlement offence, a non-parole period of eighteen months was set, commencing 7 April 2011, with a head sentence of three and a half years.
  • The overall effective sentence comprised a non-parole period of two years from 7 October 2010, with a total head sentence of four years.
  • The offender was eligible for release to parole on 6 October 2012.
  • The contents of the offender's bank account (approximately $48,800) were ordered to be repaid to the victim company.

Key Takeaways

  • The District Court confirmed that where a fresh offence is committed during the currency of a suspended sentence, revocation of that suspension is the expected outcome, particularly where the new offending mirrors the conduct for which the suspension was imposed.
  • A guilty plea entered at an early stage attracted a 25 per cent utilitarian discount even in serious dishonesty matters, consistent with established sentencing practice.
  • Where two separate episodes of serious offending are sentenced together, the principle of totality requires the court to construct an overall sentence that is just and proportionate rather than mechanically cumulative or concurrent.
  • Special circumstances, justifying an adjusted ratio between the non-parole period and the head sentence, were established where the offender was entering custody for the first time and required an extended parole period to support genuine rehabilitation.
  • Gambling addiction, while relevant to the court's understanding of the offending, was treated with caution as a mitigating factor. The court noted the frequency with which gambling is advanced in dishonesty sentencing and the risk that over-weighting it would undermine general deterrence for this class of offence.

Legislation and Cases Referenced

No specific legislation or cases were cited in the judgment text or metadata. The court applied the following general sentencing principles by name:

  • Principle of totality (structuring cumulative sentences to produce a just overall outcome)
  • Special circumstances (grounds for adjusting the statutory non-parole to head sentence ratio)
  • Utilitarian value of a guilty plea (basis for the 25 per cent sentence discount)