Settled by Judge Rice on 10/12/09
IN THE DISTRICT COURT
CRIMINAL JURISDICTION
ADELAIDE
THURSDAY, 10 DECEMBER, 2009 AT 9.28 A.M.
BEFORE HIS HONOUR JUDGE RICE
NO.DCCRM-09-1352
R v EMMA KATE AUBERT
HIS HONOUR IN SENTENCING SAID:
Emma Kate Aubert, you have pleaded guilty to 19 counts of abuse of public office, one count of dishonest dealing with documents and one count of produce prohibited material.
For the 19 counts of abuse of public office, the maximum is seven years imprisonment on each count. The one count of dishonest dealing with documents has a 10 year maximum, and the one count of producing prohibited material has a maximum of three years imprisonment.
In addition to those charged acts, there are some uncharged acts. You cannot be sentenced for any of those uncharged acts but, taken in conjunction with the charged acts, it gives a more complete picture of the nature and extent of your activities. It provides a context against which the charged acts can be viewed.
The essence of your offending is relatively straightforward. At the relevant times in 2008 and 2009, you were a public officer working for the Department of Transport, Energy and Infrastructure as a customer service officer. You worked in that capacity at a number of offices of that Department, both in the city and throughout the metropolitan area. You performed various administrative functions which included being permitted access to the Department?s computer system through which it conducted its business, such as registering vehicles and creating and maintaining licences.
By accessing the Department?s computer system, you abused your office in the following ways: one, by clearing defects from vehicle records without proof that the defect had been repaired or rectified; two, the creation of a false driver?s licence; three, removing restrictions on two motorbike licences when the holders of the licences had not satisfied the relevant authority that they were proficient to hold the unrestricted licence; and four, releasing private address details for names and registration details of civilians whose details were stored in the Department of Transport computer system as part of their registration records.
The bulk of your offending was in the form of clearing defects without proof that the defect had been rectified. You let it be known, for reasons I will come to shortly, through your friends and people with whom you would mix socially, that you were in a position to improperly and unlawfully remove defects for a fee. Your fee was normally $1,000 cash or thereabouts. Sometimes a middleman was involved whereby the person wanting the defect removed was charged $1,500, $1,000 to you and $500 to the middleman. Generally, however, your fee was $1,000, which was sometimes paid or partly paid in amphetamine.
In addition to those, you created a false driver?s licence for a fee of $5,000 cash.
It must be said that these are very serious offences of their type. There are many of them over an extended period of time. Your motive for committing them was essentially commercial. You needed the money to support your drug habit and that of your partner. It was not as if you were doing it for a friend who was in dire straits, doing it as a simple favour with no financial reward. But it goes further than that. By clearing defects from vehicles, the users of them could drive on public roads and compromise public safety.
As you would now well know, I am required to take into account the need for general and personal deterrence. As to personal deterrence, the need to deter you from like offending is quite minimal because it is highly unlikely that you will ever be in such a trusted position again. I consider it unlikely you will offend again in any way, certainly in the foreseeable future.
The need to provide a general deterrent is quite another matter. I agree with the prosecution submissions that the integrity of the public record keeping systems rely upon the honesty of those employed to operate and use those systems. There is a significant potential for public confidence in those systems to be impaired and the public interest to be affected by actions which compromise those systems. There is a significant temptation for those who work in government departments to improperly and illegally alter records or allow access to those records, particularly for financial reward. Penalties for these types of offences need to deter such actions.
I have taken into account your pleas of guilty at a very early stage and your co-operation in the administration of justice. You bypassed the normal committal procedure. You made full and frank admissions to the police. You have provided the police with assistance as to those whom you helped. You have provided statements and are prepared to give evidence against those concerned. I accept that your personal safety is at serious risk, given your situation. You now live an isolated existence and I think yours is quite an exceptional case.
Shortly I propose to use s.18A of the Criminal Law (Sentencing) Act and impose a single sentence. That sentence will be discounted by about 50 per cent to take into account those and other matters referred to by your counsel.
I now turn to your personal circumstances. You are now aged 32 years. You have an eight year old son with whom you do not live. Obviously you no longer work for the Department.
As I have already touched upon, your motive for offending was the fairly base motive, money. When you were aged 21 years, your father died suddenly, within six months of being diagnosed with metastatic bowel cancer. You began using amphetamines, initially orally, but later as a daily intravenous user. At one stage you were into smoking crystal amphetamine, or "ice". Your heaviest use of amphetamines was around 2007 to 2008. You spiralled down in 2007 as the result of the breakdown of your five year relationship with your partner. You then moved to yet another relationship and were introduced, or re-introduced, to the intravenous use of drugs, particularly amphetamine.
Essentially, you offended because of the need to get money to support your drug habit and that of your then partner. Apparently your drug dealer let you know there were people who would pay for clearing defects. You then used the money to pay your drug dealer for drugs. Initially, you did not know that some of the people wanting assistance were involved with so-called outlaw motorcycle clubs. I accept you no longer use drugs. You have depressive and anxiety symptoms which appear to relate to the potential outcome of this case rather than from earlier on.
I note you have no criminal record. Although the offending is not of the normal type, the explanation for it is quite unremarkable. You became addicted to amphetamines and the cost of it to you outstripped your income. In that situation, you abused your position in the ways I described earlier. Bearing in mind the character of some of the people you assisted, it is probably fair to say you were targeted because you were known to be vulnerable and in need of money, not only for drugs but for normal, ongoing household bills.
I also accept that you have made genuine efforts to turn your life around since your arrest. You have made substantial progress towards your rehabilitation. Your pleas of guilty and your preparedness to further co-operate with the administration of justice, despite its dangers, are powerful indicators of reform. I accept, obviously, that you are contrite.
Your offending has assisted the Department in improving the safeguards and audit procedures to prevent a recurrence of your type of offending.
Your counsel has submitted that there are good reasons to suspend the inevitable period of imprisonment. There is obviously an element of discretion if the circumstances enliven that discretion. One of the many factors to be taken into account is the degree of risk if you are immediately imprisoned. In my view, you would be at real risk within the prison system.
In my view, taking all matters into consideration, there are good reasons to suspend the single sentence of imprisonment.
But for your pleas and co-operation that I have touched upon, I would have sentenced you to gaol for six years, but that is reduced to three years with a non-parole period of 18 months. That sentence is suspended upon you entering into a $500 bond to be of good behaviour for three years.
Ms Aubert, you understand what that means?
PRISONER: Yes, I do.
HIS HONOUR: There is a sentence of imprisonment there that is suspended, provided essentially that you remain of good behaviour for three years. If you are of good behaviour for three years, that is the end of this matter, but it will remain on your record forever more, so if you get into strife again a court will know you have been given the benefit of leniency and perhaps have not taken full advantage of it. I assume you are prepared to enter into that bond?
PRISONER: Yes.
BOND ACKNOWLEDGED
HIS HONOUR: I formally make the order suppressing the image of Ms Aubert and I make that order in the interests of the administration of justice. Anything else sought?
COUNSEL: No.
ADJOURNED 9.40 A.M.
Settled by Judge Rice on 16/12/09
IN THE DISTRICT COURT
CRIMINAL JURISDICTION
ADELAIDE
MONDAY, 14 DECEMBER, 2009 AT 9.20 A.M.
BEFORE HIS HONOUR JUDGE RICE
NO.DCCRM-09-1690
R v GEORGE ADRIAN FARAONIO
HIS HONOUR IN SENTENCING SAID:
George Adrian Faraonio, you have pleaded guilty in the Adelaide Magistrates Court to two counts of bribe a public officer to do an act or make omission, contrary to s 249(1)(a) of the Criminal Law Consolidation Act. Having pleaded guilty, you were committed to sentence.
The first count relates to your offending on 25 February, 2009 when you bribed a public officer to illegally remove a defect notice issued on your own car which carried the number plate "CAPR1CE". You paid the public officer $200 on this occasion to remove the notice from the computer systems of the Department of Transport, Energy and Infrastructure.
The second count relates to your offending on 20 March, 2009. You bribed the same public officer to illegally remove a defect notice on your friend?s vehicle with the registration XRT 154. This defect was not, in fact, removed because the officer within the Department effecting the removal was moved within the administrative structure and no longer had the necessary access.
The maximum penalty for each count is seven years imprisonment.
These were not isolated incidents of offending. Your offending occurred against a background of several other similar acts. However, you have not been charged with any other offences. Your counsel, Mr Stokes, submitted that there were about 10 transactions in total. While I cannot sentence you or take into account in any sentencing against you for any of those uncharged acts, they provide a context for which the charged acts can be viewed.
You met Ms Aubert at the Wheatsheaf Hotel. You saw her there on a number of occasions and also at the local football club at Virginia. During these meetings you became aware that Ms Aubert was employed at the Department of Transport, Energy and Infrastructre, or commonly known as "Motor Reg".
Your counsel has submitted that the arrangement between yourself and Ms Aubert was initially proposed by her. However, I am not entirely convinced about that.
It seems to me from your evidence that Ms Aubert may have indicated to you that her position gave her access to remove defects and you later raised with her that your workmate had received a defect notice and she subsequently cleared it. That is the basis upon which I will proceed. This was the first defect that you had cleared by Ms Aubert.
After that occasion, you had Ms Aubert clear numerous other defect notices at your request. Generally, you would first receive a request from a friend or acquaintance who knew of your "connection". Then you would contact Ms Aubert either in person or by phone and arrange for the defect to be cleared. You would provide the details of the car that was defected to Ms Aubert and either pay her the money before or after the notice was deleted. You met Ms Aubert at her home or the local pub to make these transactions.
Generally, Ms Aubert charged around $1,000 for each defect to be cleared. However, for your first charged offence, you paid Ms Aubert a discounted fee of $200 to remove the defect notice on your own vehicle. Through her position with "Motor Reg", Ms Aubert would improperly and unlawfully remove the notices without the defects being properly rectified. You made these transactions with Ms Aubert on about 10 occasions, only two of which have been charged. Most of the people for whom you arranged to have defects cleared were friends of yours or people you had met through your work at the Pooraka Farmers? Market.
Mr Stokes has submitted that you did not receive any personal monetary benefits from either the charged or uncharged transactions. You acted as a middle man between the public officer and acquaintances of yours who had defect notices issued against their vehicles. You said that Ms Aubert would name her price for each transaction and suggest you charge an extra one or two hundred dollars as your commission. However, you chose to charge your friends only the amount quoted by Ms Aubert. You said you were trying to do your friends a favour and did not intend to rip them off. Mr Stokes described your motivation for committing such offences was to "make a big fellow of yourself in front of your mates". You said yourself that you did it "to be cool" and not for any sort of financial gain. These motives were foolish and immature as well as illegal which you well knew and accepted. I will sentence you on this basis.
You have no relevant history or prior offending. You are now 25 years of age. You left school during year 12 and have maintained constant employment since. You are currently employed full-time as a warehouse and store operations manager at the Produce Market at Pooraka. Your employer describes you as reliable and genuine. You work between 50 to 80 hours a week and receive good income from your employment. I have taken into account those character references and your volunteer work.
You live at home with your parents. You are in a stable relationship although you do not live with your partner. You spend some time looking after your mother, who is unwell, and your grandmother who also lives at the family home where you reside. You have a great deal of support from your family.
General deterrence is an important consideration when sentencing for offending of this nature. As Ms Agnew, for the Director of Public Prosecutions, rightly pointed out, you facilitated Ms Aubert to breach her duty and allow her to remain at arms-length from the people who were seeking to clear the defects. It used to be said often, if there were no receivers, there would be no breakers. Similarly here, if there were no people like you, public officers would not, or would be less likely to, succumb to temptation.
Your actions have undermined the integrity of the Public Service. Further, facilitating these defects to be cleared illegally jeopardised public safety by allowing possibly unsafe vehicles to remain on public roads. I note that a primary policy of the criminal law is to protect the safety of the public, including on the roads. It is of great importance that others are deterred from similar offending and that confidence in the Public Service discharging their duties with integrity is maintained.
In considering personal deterrence, I believe that the need to deter you from further offending is quite minimal. Although at the time of your offending you knew what you were doing was wrong, you did not quite grasp the seriousness of your behaviour. I accept you are now remorseful for your actions and are a low risk of re-offending.
I propose to use s 18A of the Criminal Law (Sentencing) Act and impose a single sentence.
Taking into account all of the matters I have outlined, your plea of guilty and your co-operation with the police in their investigation of these matters, I sentence you to 12 months imprisonment. I fix a non-parole period of six months. The need to deter offending like yours and, consequently, the need to deter public officers from accepting bribes, makes these offences too serious to suspend that sentence.
Mr Faraonio, do you understand the effect of that? The effect of that is you are sentenced to 12 months imprisonment with a six month non-parole period. I take the view that the nature of your offending is too serious to warrant the suspension of that sentence. So you have got basically a six month non-parole period to serve. That is all.
ADJOURNED 9.29 A.M.
Yeah I like Kawasakis.