STATE OF TASMANIA v SHARON MAREE BAILEY 7 APRIL 2025
COMMENTS ON PASSING SENTENCE MARSHALL AJ
Ms Sharon Bailey has pleaded guilty to 86 counts of fraud, contrary to s 253A of the Criminal Code. The various counts may conveniently be divided into two categories. The first category is count 1. The particulars of that count allege that Ms Bailey, on or about 23 March 2016, with intent to defraud or by deceit or any fraudulent means, gained a benefit, namely employment as a Support Worker with Community Based Support (“CBS”), by falsely representing that she did not have any convictions for crimes of dishonesty in connection with her application for employment.
In the second category, there are counts 2 to 86. All these counts concern, in effect, fraudulent gaining of money to pay for goods and services for herself, or her husband, from visa card accounts held with the National Australia Bank (“NAB”) and MyState Bank. Those cards and accounts were held in the name of the complainant, who I shall call “JF”. The fraudulent transactions, with two exceptions for relatively small amounts on a MyState bank visa card, were made on the NAB visa card.
In relation to count 1, the following points are relevant. In early 2016, Ms Bailey submitted an application for employment with CBS. CBS is a not-for-profit Tasmanian organisation, which delivers aged care and disability services to allow people to live safely in their own homes, enjoying access to their local community, if they so desire. CBS encourages motivated, values driven people who want to make a difference to others, to apply for employment with it.
CBS requires applicants for employment, given the nature of the employment, to provide their qualifications, a full National Police Check document and evidence of their entitlement to work with vulnerable persons. Ms Bailey supplied CBS with what purported to be a full National Police Check document. The document was missing pages 2, 3 and 5. There has been no explanation given to the Court as to why the person employed by CBS, who was to check such documents, did not realise that it had missing pages. In that regard, CBS was, in a real way, an author of its own misfortune. The pages omitted by Ms Bailey, left the impression that Ms Bailey had been convicted of only minor traffic offences.
The effect of the deletions from the National Police Check document was that the following convictions were not disclosed:
- 26 November 1997 – one count of attempted deception;
- 15 August 2001 – three counts of using a computer to defraud and one count of stealing;
- 7 January 2002 – one count of stealing (which involved one months’ imprisonment);
- 24 October 2003 – one count of attempted fraud on a creditor;
- 3 December 2003 – one count of attempted fraud on a creditor;
- 13 March 2012 – one count of stealing and four counts of using a computer with intent to defraud.
Had CBS conducted proper due diligence, and been aware of the omitted convictions, there is no way that Ms Bailey would have ever been offered the position of a Support Worker within CBS. Support workers have close contact with clients and assist clients with doing their daily living tasks, and are at all times required to act in the best interests of their clients and be completely trustworthy.
Ms Bailey commenced employment with CBS on 23 March 2016. She tendered her resignation on 4 October 2018, in circumstances where she had been called to a meeting where the future of her employment was about to be discussed and, in all likelihood, terminated by CBS, following confirmation by the police that she would be charged with fraud offences.
During the time of her employment with CBS, Ms Bailey received a gross income of $124,017.55. Her nett income from CBS was $102,186.55.
The remaining counts, being counts 2 to 86, relate to fraudulent conduct of Ms Bailey in relation to JF. Ms Bailey assisted JF one afternoon each week for about one hour. She was one of several carers who looked after JF. Ms Bailey had access to JF’s visa accounts with NAB and MyState Bank.
Ms Bailey used JF’s NAB credit card for her own benefit, and that of her husband, to pay for various items, such as motor vehicle registration, pet supplies, Telstra bills, department store bills, and retail store expenditure, including Strandbags. She also used JF’s NAB credit card to purchase Gold Coast holiday accommodation, airfares, airport shuttle services and pay a Ticketek bill with respect to an Elton John concert. The majority of the transactions involved relatively small sums, ranging from $22.49 upwards. Most were under $200.
Ms Bailey treated the vulnerable, wheelchair bound, elderly JF’s visa card accounts, in effect, as her own, to purchase a range of items, including a Gold Coast holiday for herself and family members, and for an attendance at an Elton John concert.
In May 2018, JF’s visa card with NAB was declined due to insufficient funds, when he attempted to use it. He subsequently learned that the card was in debt in the sum of just over $7,000. A bank employee assisted JF to identify a number of fraudulent transactions, going back to December 2017. In May or June 2018, the bank employee reported the matter to the bank’s fraud department. At that time, the negative balance was in excess of the $18,000 limit on the card. Interest and late payment fees had affected the total amount.
On or about 20 June 2018, JF’s visa account was closed and a new card issued. On 16 August 2018, JF reported the matter to the police. He was originally reluctant to do so as he did not believe that anyone he knew could possibly be responsible for the theft, including Ms Bailey.
Ms Bailey had manually recorded, on a piece of paper, the details of JF’s visa card numbers and used those details to conduct 76 online transactions to purchase items, or pay accounts, in her name or in the name of her husband, Kevin Bailey.
According to counsel for the State, the total amount obtained by Ms Bailey as a consequence of her fraudulent conduct, was $134,771.40. The gross income earned by Ms Bailey when employed by CBS, was included in that figure. When that amount is deducted from the amount obtained as a result of her fraudulent conduct, the nett figure is $10,753.85. That is, $10,753.85 was the value of goods and services improperly and fraudulently obtained by her, using visa cards belonging to JF.
Count 1 involves significant offending. The deceit engaged in by Ms Bailey in obtaining employment, aided by the incompetent vetting by CBS, enabled her to access a vulnerable person who was an easy target for her dishonest conduct. On this offence, general deterrence and specific deterrence both loom large, as does denunciation of the offending conduct. The Court convicts Ms Bailey for the offence on this count. It will impose a global sentence dealing with this count and Counts 2 to 86, involving a term of imprisonment, which would have been in the order of six months lighter had Ms Bailey not fraudulently procured employment with CBS.
Counts 2 to 86 involve the deceitful exploitation of a very vulnerable old man. It is fortunate for him that NAB has taken financial responsibility for his losses. A smaller, less well resourced, financial institution may not have done so. This offending was particularly serious given that it involved the taking advantage of a person in a powerless position, and the inherent gross breach of trust involved. General deterrence and specific deterrence, again, both loom large with these counts.
The judiciary deals regularly with cases where offenders deceitfully take advantage of their employers, fellow employees or customers, often in amounts far larger than the total amounts stolen from JF in this matter, but rarely in respect to complainants who are as vulnerable as JF was in this case.
Counsel for Ms Bailey conceded, appropriately, that a term of imprisonment is warranted in respect of the matters to which Ms Bailey has pleaded guilty. In sentencing Ms Bailey I take into account her guilty pleas, which served to obviate the need for a long and complicated trial. I also take into account that this matter has been hanging over her for a considerable period of time since she was charged in 2018. However, as her counsel correctly conceded, she has contributed to the delay herself, and that delay is a neutral factor for sentencing purposes. However, it should be noted that some of the delay was caused by conduct of Ms Bailey which was similar to the conduct that has underpinned these charges, being dishonesty. In that regard it is noted that Ms Bailey submitted a false medical certificate to the Court to obtain an adjournment of her matter, thereby delaying the taking of her pleas and consequent sentencing.
Other aggravating factors include the fact that Ms Bailey has shown little remorse for her offending. She made no attempt to repay NAB for the financial advantage she obtained as a result of her fraudulent conduct. I also take into account her significant criminal history involving dishonesty. That was referred to earlier in these Comments on Passing Sentence. Although the last of that offending occurred over 13 years ago, it should be borne in mind that some of the earlier offending involved conduct which occurred in similar circumstances to the current matter, where a breach of trust by Ms Bailey was able to see her gain a financial benefit. The sentencing judge in a matter in December 2001, noted that Ms Bailey had shown no remorse for her conduct on that occasion. The Judge noted that, “the life savings of an elderly woman were systematically pillaged. The offender has shown no remorse.” The only remorse appeared to be shown by Ms Bailey on this occasion, is that she was remorseful for the fact that she had been found out.
The Court also convicts Ms Bailey on counts 2 to 86 inclusive.
Taking into account all 86 counts, including count 1, the Court imposes the following sentence.
Ms Bailey is sentenced to a term of imprisonment of three years, with a non-parole period of 18 months. The sentence is to be operative from 13 November 2024, the date upon which Ms Bailey was taken into custody.
The State has sought compensation orders under s 68 of the Sentencing Act 1997. The first application is for an order to be made in favour of CBS for the amount of $124,017.55, being the gross wages earned by Ms Bailey when employed by CBS. That is so, notwithstanding the wages she actually received were $102,186.55.
In submissions made in support of the making of that order, the basis for the claim for compensation appeared to be that the State desired to punish Ms Bailey for gaining employment she had no right to gain, having gained it as a result of dishonest or fraudulent conduct.
Compensation orders under s 68 of the Sentencing Act are not vehicles for punishment. The Court has punished Ms Bailey for her conduct under count 1 by imposing a larger global sentence than it would otherwise have imposed, in the order of six months, for the total offending.
In making the application, the State has failed to have regard to the plain wording of the section under which it has applied.
Section 68(1)(b) of the Sentencing Act provides, insofar as is material, that:
“If a person is found guilty or convicted of an offence and the court finds that another person has suffered injury, loss, destruction or damage as a result of the offence, the court may…order the offender to pay compensation for that injury, loss, destruction or damage.”
When questioned by the Court, counsel for the State was unable to identify any injury, loss, destruction or damage suffered by CBS as a result of Ms Bailey gaining employment with it fraudulently. Ms Bailey completed her work as directed. CBS took the benefit of that work. Ms Bailey was subject to a probation period, which she completed successfully. No issue arose with her employment until CBS was informed that she was about to be charged. To the extent that it may have suffered some unquantifiable reputational damage, CBS, in a real sense, was the author of its own misfortune by accepting an obviously doctored National Police Check document, which was missing pages. More than a cursory examination of the document would have resulted in the discovery of that fact.
Section 68 of the Sentencing Act does not empower the Court to grant compensation to a person or entity in circumstances where that person or entity has not suffered injury, loss, destruction or damage as a result of the offending.
As Slicer J said in DPP v Avery [2009] TASSC 27 at [48], in reference to s 68:
“Central to its application is the requirement that a person has suffered loss or damage as a result of the offence. … An applicant must be able to prove a causative link between the conduct and the loss or damage suffered.”
To seek to have Ms Bailey repay CBS her wage (whether gross or nett) is to seek to punish her and is not to seek to compensate CBS. On the contrary, it would provide a windfall for CBS. That is not the aim of s 68 of the Act.
The first application under s 68 by the State is misconceived. It is rejected.
The second application under s 68 deals with the question of reimbursement of NAB for the loss suffered by it as a result of the fraudulent use of a credit card in the name of JF, underpinned by his being a client of the NAB. The Court makes, without opposition from counsel for Ms Bailey, a compensation order under s 68 of the Sentencing Act, in favour of the NAB, in the sum of $10,753.85 for the actual loss suffered by it as a result of Ms Bailey’s offending.