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R v Ayfandis [2023] ACTSC 94

The offender was sentenced following a plea of guilty to 1 count of theft from a Commonwealth entity contrary to s 131.1 of the Commonwealth Criminal Code. Offender also sentenced for state dishonesty offences.

Nature and Circumstances: Offender was employed by Services Australia which had entered into arrangements with other Commonwealth government agencies for the shared provision of Information and Communications Technology (ICT) equipment. Offender removed ICT equipment, with 453 items of Commonwealth property being found at their home during a search. That property was valued at $98,661.47. Offending went on over more than three and a half years. Offences were committed for personal gain, whether to gain a financial benefit for themselves or their fiancée.

Mental Condition: Offender diagnosed with autism spectrum disorder Level 1. Although the offender has been diagnosed with this disorder, there is no clear evidence that their moral culpability for this lengthy period of offending is thereby affected. On the other hand, offenders time in custody would be harder than would otherwise be the case because of their mental condition. Offender would be at risk of becoming a target for other prisoners due to their neurodiverse behaviours.

Remorse: Offender has paid money to the Commonwealth in order to cover the profit they made from the Territory offences. The recoverable property they appropriated has been returned to its rightful owner. Offender is unlikely to offend again. Offender’s very early plea of guilty, their assistance in having one package of appropriated goods return from the Philippines, and their payment of money to the Commonwealth suggest remorse. However, offender’s repeated claim that what motivated them was a desire to provide obsolete equipment to children in the Philippines to assist with their studies suggests that even now offender is not prepared to be honest as to why they committed these offences. Offender is not truly remorseful and they have failed to take full responsibility for the offending.

General Deterrence: Despite offender’s recent diagnosis of autism general deterrence remains important in this sentencing exercise. Offender occupied a position of trust within the Commonwealth and abused that position over a lengthy period and on many occasions. Many other people are in similar positions and it must be made clear to them that if they too breach the trust reposed in them by stealing from their employer significant sentences will be imposed on them. In the present case the diagnosis of autism spectrum disorder Level 1 was only made in preparation for the sentencing proceedings when the offender was in their 50s. Level 1 is the mildest form of autism which explains the late diagnosis. For these reasons the reduction in sentence on account of the reduced relevance of general deterrence will be a modest one.

Offender sentenced to 9 months of imprisonment with a recognizance release order permitting their release after serving six months imprisonment.
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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