Director of Public Prosecutions v Adam, Kellie
[2012] VCC 1713
•1 November 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable For Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-02097
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KELLIE ADAM |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 November 2012 | |
DATE OF SENTENCE: | 1 November 2012 | |
CASE MAY BE CITED AS: | DPP v Adam, Kellie | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1713 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B.D. Nibbs | |
| For the Accused | Ms S. Leighfield |
HIS HONOUR:
1 Kellie Ann Adam, you pleaded guilty to an Indictment containing 10 charges. Three offences involve obtaining a financial advantage by deception; five offences involve obtaining property by deception and three offences involve theft. Each of those crimes carries a maximum term of imprisonment of 10 years.
2 The prosecution have provided me with a summary of Prosecution Opening. That has been read in court this morning and is Exhibit A on the plea hearing. I am not going to go through it again in detail. Suffice to say that so far as Charge 1 is concerned that involves your conduct between 27 November 2006 not long after you became employed by the medical practice at Rowville known as Liberty Avenue Medical Centre. That conduct involved you using nine separate cheques drawn on the medical centre to pay personal debts totalling $3280.05.
3 Charge 2 involves your conduct between 5 September 2007 and 17 April 2008 in which you used the medical centre EFTPOS card to pay personal debts on seven separate occasions in sums totalling $4001.19.
4 Charge 3 involves your conduct between 14 December 2006 and 8 June 2007 in which you used the Pulse Pharmacy account which had been the practice account on five separate occasions to make unauthorised purchases in sums totalling $667.19.
5 Charge 4 involves your conduct between 26 September 2007 and 6 May 2007 in which you used the same Pulse Pharmacy account for unauthorised purchases on three separate occasions in sums totalling $317.12.
6 Charge 5 involves your use of the centre EFTPOS card to make an unauthorised purchase from Coles Group Limited in the sum of $45.37.
7 Charge 6 involves your conduct on 27 December 2007 in which you used the centre EFTPOS card to make an unauthorised purchase of goods from Kmart in the sum of $10, Charge 7 on 6 May 2008 you used the centre EFTPOS card to make an unauthorised purchase from Jetty Surf in the sum of $154.90.
8 Charge 8 involves your conduct on 16 May 2007 by which you stole a microwave oven owned by the medical centre.
9 Charge 9 involves your conduct between 5 June 2007 and 25 July 2008 in which you stole cash totalling $8175.24 belonging to the centre. That conduct involved cheques being written out to yourself or to yourself and your husband and deposited into a bank account held by yourself or yourself and your husband jointly. There was 16 such cheques involved in that conduct.
10 The last instance I note occurred towards the end of your period of employment with the centre. The last cheque was banked by you on 25 July 2008 three days after you had concluded your period of employment.
11 Charge 10 involves your conduct between 3 September 2007 and 6 March 2008 and it involves your stealing cash belonging to the centre by using the centre's EFTPOS card to withdraw cash on six separate occasions in sums totalling $1950.
12 I said during the course of the plea hearing that there were a total of 47 occasions upon which you engaged in dishonest conduct which are effectively contained within these 10 charges. My more recent calculation suggests that the total is 50. It matters not. There were 47 or 50 occasions upon which you had to pause to consider whether you were going to act dishonestly or not and upon which you choose to act dishonestly.
13 It is undoubtedly the case, as your counsel conceded, that these are serious offences. They occurred over an extended period of time, some 20 months, involved multiply transactions and constitute a significant breach of trust. It is true that the total amounts involved total $18,600 or thereabouts plus the value of the microwave oven. That in the scale of offending there are many other cases that come before these courts where the amounts stolen or unlawfully obtained are significantly greater. Nevertheless offences of this kind are typically difficult to detect; they are committed by persons who have no prior criminal history; who are intelligent, as you apparently are; well‑educated, as you apparently are; well balanced in many respects, as you apparently are; and where you are capable of presenting a veneer of honesty which enables you to commit offences of this kind and to get away with it over an extended period of time.
14 You had ample time to consider what you were doing, to reflect upon what you were doing and after it became apparent that your conduct had been discovered to cooperate and bring these proceedings to a conclusion in a timely fashion.
15 I think it is fair to say that your interview with police, conducted as it was, on 13 April 2010 contained some admissions including admissions of dishonesty, but contained a good deal of false denial and prevarication, rationalisation of your behaviour and excuses to which you no longer adhere.
16 I sought in the course of the plea hearing to elicit some kind of satisfactory explanation for your behaviour during this period that might reduce your moral culpability and to some extent explain why a person who had the advantages that you have would behave in this persistently dishonest manner in breach of the trust of your employers.
17 I again think it is fair to say that although your counsel pointed to aspects of the report of psychologist Mr Newton as indicating some rationale behind your offending, that there was really no identified mitigation of your offending or excuse for your conduct. Your offending involved exploitation of your position and greed rather than need.
18 Offences of this kind are frequently difficult to detect and difficult to investigate. That is particularly so where the offender has taken advantage of the position of cash manager, bookkeeper and practice manager to perpetrate the offending conduct.
19 Turning to matters that are personal to you. Your counsel provided me with an extensive and carefully prepared outline of submissions, which is Exhibit 1, and a folder of materials, which is Exhibit 2. That folder contains a report from the forensic psychologist Dr Patrick Newton dated 25 October 2012; the medical report of Dr Dick Merigan dated 18 October 2012; medical report of Dr Denver Jansen dated 30 October 2012; copy of a cheque in the amount of $18,601.06 which evidences the payment of restitution on 24 October 2012 by you for the amounts referrable to the charges to which you pleaded guilty.
20 There were also provided in this folder character references from Kerryn Lajoie, Sharon Street, Julie West, Julie Manning, Jasmine Hexter, Randall West and Dawn Cunningham.
21 The report of Dr Newton sets out a history of your background, which has had of course some ups and downs as with most family backgrounds. However your early life and schooling seems to have been relatively unremarkable. You were fortunate enough to have had a good marriage and two children by that marriage, one of whom is in court today, two sons now aged 23 and 21 years of age.
22 It is true of course that you have been subject of significant stress, particularly since 13 April 2010 when the police came knocking on your door and executed a search warrant and you became aware of the nature of the allegations against you. It seems that you suffered, as a result of those facts, a reactive depressive illness and you commenced treatment for that with Dr Merigan soon after the police had come to you see in April 2010.
23 In addition you have had other stressful factors involving a health issue with your older son and some issues with your younger son which more recently have involved him being charged with major indictable offences which I understand are still pending and which he is contesting.
24 Despite that until 2010 it seemed that you suffered from no mental illness or other condition which would or could have contributed to any or any significant degree to your offending conduct. Nor it seems, apart from perhaps drinking more than that which is within the generally accepted health guidelines, does your consumption of alcohol seem to have been any problem. Nor have you been involved in other substance abuses that have contributed to your offending conduct.
25 You do, of course, have no criminal history of any kind. Your educational history, your family history and what is reflected in the references, some of which are glowing references, would suggest that this period of offending is out of character. It is inexplicable in terms of the kind of person that you have presented to those who have written references on your behalf. But unfortunately of course, as I pointed out, that is so often the case where there is a breach of trust because it is that very presentation of a decent, honest person that gives rise to the opportunity which in your case you have unfortunately taken to engage in persistent, dishonest conduct.
26 It is posited by Dr Newton that the chaotic and stressful nature of the work within the medical practice in respect of which you engaged in your dishonesty contributed to a level of work-related stress. That may also have given rise to a sense that you were engaging in unpaid overtime and a sense that there was some entitlement to some of the money that you dishonestly appropriated.
27 Dr Newton indicates that you expressed remorse to him. It is I think reasonable for me to accept that you are remorseful now. I noted in the course of discussion with your counsel that your conduct up until recently had not suggested that you have been remorseful, because at least until the beginning of this year, it seems you were intent on contesting these charges. It is only relatively recently that it appears you have come to accept your guilt in respect of this conduct.
28 I have no doubt that you are now regretful of your behaviour and indeed your predicament, but I am prepared to accept that you are also now genuinely remorseful.
29 So far as Dr Newton's assessment of your mental health is concerned, he identified the fact that your depressive symptoms have primarily arisen as a reaction to your ongoing legal predicament. He opined that your social problems and dependant personality created a vulnerability to developing a more serious depressive condition or to having your current reactive symptoms persist for an extensive period of time even after the present stressors are resolved.
30 He noted that there would be a genuine risk of deterioration in your mental state and of an intensification of suicidal ideation. I think that may be summed up in the proposition that all of those factors need to be considered in the light of an appropriate sentence in your case.
31 I do accept that in view of Dr Newton's assessment that in part the Verdins principles are engaged to the point where there is a risk that a period of immediate incarceration may lead to a deterioration in your mental state and an intensification of your suicidal ideation and are likely to lead to your level of stress within the prison environment being more severe than that of a prisoner without the psychological and personal challenges that he identified in his report. I do take those factors into account in determining an appropriate sentence.
32 Dr Newton also expressed an opinion that you were aware of the nature and consequences of your actions at the time of your offending and that you were not under any compulsion at the time of your offending. He took the view that your capacity for moral judgment was not impaired and he estimated that your intelligence fell within the high average range.
33 He identified your symptoms to warrant a diagnosis of "adjustment disorder with depressed mood" but that they would not meet criteria for major depressive disorder or other primary mood disorder. Although he did point out that there was a genuine risk of developing more serious depressive mood disturbance in circumstances of increased stress or reduced support such as of course a prison environment.
34 I do not think I need say more about the content of Dr Merigan's report because it is consistent I think with Dr Newton. Dr Merigan confirms that prior to April 2010 you had not suffered from any form of mental disorder, but that at that stage you were diagnosed as suffering from depression (adjustment disorder) relating to stressors associated with your previous employer.
35 The report of Dr Jansen I should mention in passing. He deals with an assessment of you on 15 June 2011 in relation to issues surrounding your mental health and he notes:
"She informed me that she was facing criminal allegations from a previous employer and the stress associated with these allegations and there potential implications were having a significant, detrimental impact on her wellbeing, particularly her mental health.
I understood that Ms Adam was still in disbelief that the allegations had arisen and that they were being pursued with such vigour. She informed me that as a result of the mental anguish she was experiencing she started to consume alcohol to reduce her level of anxiety and agitation."
36 It seems to me, with respect, that had you at that time chosen to come clean and try to assist in the identification of the scope of your offending conduct, not only would you have saved yourself a good deal of stress, you would have saved the investigation a good deal of time and effort in reaching a conclusion and these proceedings would have been concluded at a much earlier stage than they are being concluded. That is not to take away from the proposition that delay is relevant to the sentencing discretion in the ways that were outlined by your counsel. In particular it is noteworthy that there has been no further offending; you have pleaded guilty. Although there was a necessary period of negotiation leading to the Indictment to which you have pleaded guilty, it is not possible to pray in aid the proposition that this was an early plea.
37 It nevertheless is a plea which attracts, and should attract, a significant reduction in sentence. It is I think consistent with remorse. It is certainly a plea which has indicated a willingness to facilitate the course of justice and has significant utilitarian benefits. It has saved the court and the community the expense of a trial or trials which would otherwise have been necessary to resolve the position that we are now in.
38 The delay, has enabled you to demonstrate remorse through your plea and through restitution. It has enabled you to demonstrate that you are, if not rehabilitated, on the way to rehabilitation. It has enabled you to demonstrate that you are in the low risk category as far as reoffending is concerned. I note that although to some extent you have contributed yourself in my opinion to the continuing and extended period of stress, you have had to suffer this stress hanging over your head for a considerable period of time. No doubt that has contributed to the level of reactive depression from which you currently suffer.
39 I think it is a fair proposition, as your counsel submitted to me, that the need for specific or individual deterrence, that is deterring you from further conduct of this kind, is significantly reduced.
40 I should have mentioned the fact that the prosecution also relied upon two Victim Impact Statements, they are Exhibit B. They were not read out in court and they contain relevant material and material which is not relevant to the consideration of these charges. I indicated that I would take into account only those bits that were clearly relevant and ignore for the purposes of sentencing those parts that were not clearly relevant.
41 That is not to denigrate the authors of those Victim Impact Statements. They are expressing feelings that they genuinely hold, but the law has to proceed on the basis of material that can properly be regarded as relevant to sentencing on these particular charges. I am sure they will understand that from the discussion that was had earlier in this hearing and from what I am saying now, but I make that clear in passing sentence upon you, Ms Adam, that that is the case. You are only to be sentenced here today for the offences to which you have pleaded guilty.
42 I think that the character references do speak of a person who has a significant degree of good in them. You are entitled on occasions such as this to pray in aid that long history of consideration for others and of doing good deeds for others, of being a mother and a wife who is well respected and well loved and who is prepared to participate in the community and to help others and to go well beyond the extent to which most others would go in helping people in particular need. In particular I refer to the character reference provided by your sister Julie Manning, the character reference from Jasmine Hexter and the character reference from Dawn Cunningham. They speak volumes about you in that regard.
43 I do regard you as being a person who is substantially rehabilitated, with a low risk of reoffending and a person with the capacity to continue to contribute significantly to the community.
44 You are fortunate of course still to have the support of family and friends and that will no doubt assist you in your continued rehabilitation.
45 The prosecution have submitted that the nature of the offending conduct involving, as it does, a breach of trust, a significant number of transactions. I think whether it is 47 or 50 that there were a significant number of transactions, which are inherent in these 10 charges on the Indictment. The prosecution also stressed the need to give significant weight to the sentencing principle of general deterrence, that is deterring others from engaging in conduct of this kind. Acknowledging as they do that offences such as this are frequently committed by first time offenders they submit that these factors should lead me to conclude that a term of imprisonment is the only appropriate sentence in all the circumstances and that part of that sentence must be served immediately.
46 Your counsel on the other hand has urged me to pay particular regard to the value of the moneys and goods unlawfully obtained; the plea of guilty; the fact that you have made full restitution; the absence of prior or subsequent convictions; the delay; your strong work history; the development and ongoing impact of your depression; and your otherwise good character as militating in favour of a sentence which does not involve a term of imprisonment.
47 Your counsel eloquently has put forward a case in favour of a Community Correction Order. She reminded me that the introduction of that sentencing alternative was to be an alternative sentencing option for offenders who would otherwise be sent to gaol and may be appropriate even where there are serious offences involved which would ordinarily warrant an immediate term of imprisonment. She urged me to adopt that course or, to the extent that I found that it was necessary to impose a term of imprisonment, to wholly suspend that term of imprisonment.
48 I am bound to express in my sentencing the denunciation of this court of conduct of this kind and to punish you appropriately for the offences having regard to the maximum terms of imprisonment that Parliament has prescribed for these offences. To the extent that it is appropriate I am required to give weight to deterring you from committing further offences of this kind and more particularly in this case to give proper weight to the principle of general deterrence, that is deterring others from committing offences of this kind.
49 I am also required to facilitate your rehabilitation to the extent that I can do so consistent with having proper regard to the competing sentencing considerations.
50 In all the circumstances I am of the view that I can only do my duty having regard to each of those sentencing considerations, in particular general deterrence, by passing a sentence of imprisonment and one which does involve a period of actual incarceration.
51 I do so with a heavy heart, but nevertheless I think the circumstances here involving the consistent breach of trust with really no mitigation which goes to your moral culpability and a high degree of moral culpability involved in the offending conduct requires me to do that.
52 Kellie Ann Adam, on Charge 1 I sentence you to imprisonment for six months.
On Charge 2 I sentence you to imprisonment for six months.
On Charge 3 I sentence you to imprisonment for three months.
On Charge 4 I sentence you to imprisonment for two months.
On Charge 5 I convict you and discharge you.
On Charge 6 I convict you and discharge you.
On Charge 7 I sentence you to imprisonment for one month.
On Charge 8 I sentence you to imprisonment for one month.
On Charge 9 I sentence you to imprisonment for eight months.
On Charge 10 I sentence you to imprisonment for five months.
In relation to each of the 10 charges I convict you.
53 The sentence of eight months on Charge 9 is the base and I order further that two months of the sentence on Charges 1, 2 and 10 and one month of the sentence on Charge 3 be served cumulatively on each other and upon the sentence on Charge 9 which makes a total effective sentence of 15 months imprisonment.
54 I order that you serve a minimum term of eight months before you are eligible for parole.
55 I indicate that but for your plea of guilty I would have sentenced you to two years imprisonment with a nonparole period of 14 months imprisonment.
56 I make orders for the disposal of property in accordance with the drafts that I have received in relation to the microwave oven, which is the subject of Charge 8 on the Indictment.
57 MS LEIGHFIELD: If Your Honour pleases.
58 HIS HONOUR: Are there any other orders that I need make?
59 MS LEIGHFIELD: Your Honour, I ask that custody management issues be ‑ ‑ ‑
60 HIS HONOUR: Yes, I am glad you reminded me of that. I would like to have that noted; that there are concerns for the deterioration of the prisoner's mental health and concerns for that developing into an increased suicidal ideation. I shall have that noted on the order.
61 MS LEIGHFIELD: Thank you, Your Honour.
62 HIS HONOUR: Yes, you can take her down.
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