Director of Public Prosecutions v Addison
[2014] VCC 1686
•1 October 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-14-01028
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VALERIE ADDISON |
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| JUDGE: | HER HONOUR JUDGE COHEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 14 August, 24 September 2014 |
| DATE OF SENTENCE: | 1 October 2014 |
| CASE MAY BE CITED AS: | DPP v Addison |
| MEDIUM NEUTRAL CITATION: | [2014] VCC 1686 |
REASONS FOR SENTENCE
---Subject: Sentencing; thefts
Catchwords: Plea of guilty; thefts from employer over 18 months; chronic depressive disorder affecting judgment;
Legislation Cited: Sentencing Act 1991
Cases Cited: R v Verdins & Ors [2007] VSCA 102
Sentence:TES: 20 months imprisonment, partially suspended; 5 months imprisonment to be served immediately and 15 months suspended for 3 years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Ellwood | Office of Public Prosecutions |
| For the Offender | Mr P. Tehan QC | Tony Hargreaves & Partners |
HER HONOUR:
1Valerie Addison, you have pleaded guilty to three charges of theft. You have also admitted a prior court appearance to which I shall refer later.
2I am going first to the circumstances of the offending.
3In October 2010, you commenced employment with a company called Smart Water Group Pty Ltd as administration manager, responsible for accounts payable and receivable. You had two other staff as subordinates to assist you. In your role, you were provided with unrestricted access to the banking facilities of the company via the Internet.
4In May 2011, you began dishonestly transferring sums of money from the company's accounts to your benefit. Most were transfers into various accounts of yours or your family members, but some were to make direct payments for your personal liabilities such as payments by BPAY for electricity, VicRoads car registration and private health insurance. Over the course of more than 18 months, you made 245 dishonest payments or transfers totalling $319,608.29. These have been divided into three charges, each a rolled up count, based on financial years and also taking into account that for the last financial year, that is from 1 July 2012, your employer merged with another company and became Smart Water Corporation Pty Ltd. The latter is the victim of the last 46 dishonest transactions totalling $63,041.76 committed over the period 1 July to 30 November 2012.
5You left that employment on 30 November 2012 accepting a voluntary redundancy offer. Five of the transfers were made that month, the last on your last day of employment. Following your departure, your thefts were discovered.
6The maximum penalty for theft is ten years' imprisonment. I must take that into account as reflecting the level of seriousness with which Parliament regards the range of offences that constitute theft, and that is a wide range. Theoretically, as there are three charges of theft, the potential maximum penalties are of 10 years' imprisonment on each charge. In fact there were 245 separate acts of theft. However, I view your offending as a continuing course of conduct against your employer, and have taken the maximum penalty for one charge as the appropriate measure of a maximum in this case. Having said that, I say at this stage so as not to prolong the anxiety for you, that you are going to receive a term of imprisonment for these charges, and it is going to require some immediate time actually served in prison.
7Although I have regarded the appropriate maximum penalty as if there were a single charge, I do not mean that to underrate that there were in fact 245 separate acts of dishonest misappropriation of funds by you. Over a sustained period of more than 18 months, you stole from your employer, and each transaction involved you making a decision to take money in an unauthorised manner. Moreover, you apparently were making decisions on each occasion as to where to direct the transfer, with five or six different bank account or credit card accounts of yours or your husband, variously the recipients of most of the transfers, as well as your son's business and various other recipients in payment of specific debts due. The number of accounts used reflects that there was a degree of forethought or deliberation behind each transaction, and sometimes transfers to different accounts on the same day.
8Further, these thefts were made from a relatively small business which you knew was in financial difficulty. You worked at the same premises with the owner, Mr Andrews, and had discussions with him about the company's financial position. You must have known that your stealing from the business at such sustained rates would be directly harming the business's financial position further, and with it, both the owner and his family, and ultimately other staff whose jobs depended on its continuing. I am satisfied that you knew that Mr Andrews loaned $200,000 from personal funds into the business to sustain it during the period when you were stealing from it.
9I regard as serious both the objective seriousness and subjective culpability of your actions. To steal from any employer is a betrayal of trust, but when it is from a position where you have been entrusted with unsupervised access to the employer’s accounts, it is particularly serious. Modern electronic methods of payment enable an employee in a position such as yours to carry out dishonest transactions with much more ease than used to be possible when paper based payments usually required some checks and scrutiny. While employers ultimately must bear the consequences if they do not put in place appropriate checks and supervision, the actions of a single trusted employee in a small business can wreak considerable damage. There was no sophisticated disguising of your thefts, but your position enabled you to keep from your employer's scrutiny what was occurring.
10I also take into account that your offending was not the result of one isolated moment of temptation, or a single reaction to a particular stressor nor even a short burst of illegal transactions from which you desisted when you had time to reflect. This was a sustained course of offending; not as long as in some other cases that come before the courts, but with knowledge of the serious consequences to the business's finances. That it only ceased when you left on being offered a voluntary redundancy package reflects that there was no sense of guilt or self restraint on your part that brought that offending to an end.
11I turn now to your subsequent conduct. Police first contacted you at your home on 11 March 2013, some three and a half months after you had left the employment. You immediately admitted your offending and expressed relief that it had been detected. As you were recovering from recent surgery, an appointment was made for you to be interviewed by police later. On 2 May 2013, you attended the police station as arranged, brought with you considerable paperwork such as bank statements and a spread sheet you had prepared detailing the offending transfers. You also brought a cheque for $217,159 to repay your employer.
12The prosecution concedes that your cooperation and input in tracking the payments has saved police investigators hundreds of police man hours. In that initial interview, you admitted a substantial proportion of the offending. You did assert that a number of the impugned payments were owed to you, so the transfers you made for those were justified. These were referred back to your employer and then you were, many months later, interviewed again about those. Although you maintained to some friends that some of those amounts were owed to you, you conceded that you could not prove that they were owed to you, and have ultimately pleaded guilty to theft of the total amount.
13You have also made further repayments, and shortly before your plea hearing started the last amounts were paid such that full restitution has now been made.
14Smart Water Group Pty Ltd had been effectively owned and operated by Mr Gary Andrews for more than 20 years before you joined it. In the year before you started employment there, however, profit had significantly declined. That decline continued after your employment commenced in October 2010, and as at 30 June 2012, Mr Andrews accepted a merger with another company following which the name was changed to Smart Water Corporation Pty Ltd.
15Mr Andrews attributes significant losses of profit to your fraudulent actions. Clearly you could not have been responsible for the decline in the financial year before you commenced. Nevertheless, I accept from his Victim Impact Statement which he read out in court, and it is part of the agreed facts, that you were aware over the course of your offending that the business was suffering substantial losses which were of great concern to Mr Andrews and indeed he discussed those concerns with you. You were also aware that he personally had loaned $200,000 to the business in order to keep it operating.
16I am satisfied that when your thefts were discovered, Mr Andrews felt deeply personally betrayed on both a business and personal level. Unlike with a large and impersonal institutional employer, you worked with Mr Andrews, knew that the business had been built and operated by him, and you betrayed not only the objective trust of an employer but the personal trust of the owner of that business. You contributed to significant personal stress for him and his family as well as putting financial strain on them.
17He claims that the financial state to which you reduced the business by your thefts led to his accepting a merger on less favourable terms than had you not, by your thefts, reduced the business's paper profitability. I am not in a position to, and do not, make findings as to whether or to what extent your thefts caused him or the company financial losses beyond the amount stolen by you. Restitution has now been made by you of the stolen amounts of money. The personal cost to him cannot be repaid.
18I take into account as a fact in your favour that you have already made full restitution of the amount stolen. Your counsel submitted that you have little of your superannuation retirement amount left, having made those repayments or the last of those repayments from superannuation funds and also because of legal costs relating to these charges. I do not consider that a matter for particular sympathy, given that it was entirely brought about by your offending.
19What remains unusual about your situation is your apparent lack of immediate financial need as motivation. Although contrary to what Dr Walton was originally told, you had indeed spent portions of the money stolen and not kept it all untouched, you apparently did not have any particularly pressing financial need for most of this money. It seems that almost half of the initial repayment, some $100,000, was kept by you in cash in a safe at your home, and the balance was available in bank accounts for you to call upon to have a cheque for $217,159 available on 2 May 2013. Although some of the payments were diverted to your son's business and some in payment directly of utilities and insurance and other expenses, it would seem that your offending was not motivated by some dire or pressing financial need that you had personally, nor that any member of your family had.
20Unlike an unfortunately large number of people who come before this court for offending of a similar nature, you appear to have no gambling history or problem with gambling, and of course no use for money such as drug addiction. There is some speculation in the materials before me that you might have been accumulating funds to enable you to leave your husband, but as the majority of the amounts stolen were transferred into accounts in his or your joint names, I am not satisfied that that was the likely or at least primary motivation.
21It is submitted on your behalf, based on materials to which I shall refer further shortly, that your offending was due to or motivated by psychological reaction to various problems in your personal circumstances, particularly family stressors, and precipitated by your perception of your employer's demands and behaviour being unfair and being similar to those of your husband, such that your stealing from your employer was some transference of reaction to the abuse you say you received from your husband. I will discuss some of the material about that shortly.
22I take into account in your favour that you have given cooperation to the police investigation from the outset. You also indicated a plea of guilty early enough to save the time and cost of a disputed committal hearing or trial. In assisting police as you did and pleading guilty, you have saved the community significant time and costs in both investigation and prosecution, saved witnesses having to give evidence and you will receive considerable leniency for doing so.
23Your admissions to police and plea of guilty also indicate acceptance of responsibility for at least a significant portion of the offending. You did seek to justify some $50,000 to $60,000 of the payments, although you ultimately accepted responsibility for those too on the basis that you could not prove your alleged entitlement to them.
24I infer from your cooperation and pleas of guilty that you have felt some genuine remorse for your actions, although that remorse has not been unequivocal, given your attempts to justify some of the transactions and also to ascribe to Mr Andrews' manner and behaviour a motivation for your offending, and indeed, an accusation of bullying and harassment of you. I have read a letter of apology you have written to the court. From the circumstances and focus of your letter, I accept that you do realise and feel remorse for the hardship you have caused Mr Andrews and his family and co-workers. However, I find that your regret is more for the consequences to you and the impact and reactions of your family and friends. I shall specify the amount by which your sentence has been reduced for your plea of guilty when I have imposed my sentence.
25I turn now to your personal circumstances. You are now aged 55. You have been married to Colin Addison for more than 30 years, and have two adult children aged 31 and 29 respectively who have lived independently of you for many years. Each of them now has a child and you take pleasure in your involvement with your two grandchildren.
26You were born in England, the youngest of four children, with three older brothers. The whole family migrated to Australia when you were aged 10 and you finished school and matriculated in Melbourne. After completing school, you commenced work as a receptionist in the accounts department of Harston Partridge & Co. You were apparently 16 when you first met your husband Colin at that work, and you married him when you were aged 23 and he was 34.
27You have maintained employment for most of your adult life. After some four years working at Hewlett Packard, you left for the birth of your first child, but returned to work for a further year before becoming pregnant with your second child. Following your daughter's birth, you worked for your husband doing his book work, although I am told elsewhere that you suffered some post natal depression at that stage. Then, from 1992 to 2006, you worked as the finance assistant at the Knox City Council. From 2006 to 2010, you worked as the administration manager for another company, and then from October 2010 at Smart Water. As I have already said, in November 2010, you took a voluntary redundancy package, leaving that employment and there is reference to your regarding yourself now as retired.
28There can be no doubt that, given your history of working in accounts and as an accounts or administration manager for various organisations, the offences for which you are now being sentenced will probably prevent you ever obtaining employment in the trusted roles you have held for most of your working life.
29I am told that you were exceptionally close to your mother who passed away aged 83 in August 2012[1]. She had apparently a history of ill health, including amputations as a result of diabetes, and then suffering a heart attack and a stroke over the last 18 months of her life. This rendered her bedridden and in need of considerable care. I accept that you found your mother's last months of illness and then her death extremely distressing, and that these placed particular stress on you emotionally and psychologically. Your son, in his evidence, said that you described your mother's death as “tragic”, which Mr Tehan, on your behalf, submits is a particularly noticeable reflection of your reaction to it, given that she had reached 83 years of age after many years of health difficulties.
[1] Corrected by agreement from 2011
30Your father is now aged 85 and suffers from several health problems including his heart. He lives alone. One of your sisters-in-law has been receiving a carer's pension in respect of her role with him for some years, but more recently has been diverted because of her own husband's ill health. You have been visiting him twice a week, doing his shopping and cooking and, until bail restrictions prevented it, you were staying overnight after those visits at least once or twice a week to assist with your father's care. You have also been taking him to medical appointments as reflected in his GP's report, and I am also told that there are some prospective appointments this month with a cardiologist. I am satisfied that despite the role of your sister-in-law, and there being other family members living in Melbourne, if you are imprisoned there would be emotional and practical adverse consequences for your father.
31I have been told, through your counsel and through the reports of Mr Newton and Dr Walton, that your marriage has been unhappy for very many years. It is described as bleak and loveless and one riddled with your husband's infidelity and also his subjugation and control of you. If your marriage has been as bleak and emotionally oppressive as it has been described repeatedly to me, it is sad to reflect that a woman of your intelligence and ability in this day and age has not taken steps to leave it. In saying I recognise that your personality and perhaps entrenched view of your role in life and in your family has almost certainly played a role in that course, and I have noted the psychological opinions about the role of your unhappy marriage in your offending.
32It was particularly incongruous to me that the description of your marriage has been repeatedly given in court with your husband sitting in court, and that he has written a reference in support of you. He describes you as playing an integral part as the centre of your family group, always being there for your children, for him as your husband and now for your father.
33I accept what I have heard from your father, your son and your friend and former colleague at Knox Council, Ms Bath, that you have always played a central role in your family - towards your parents, to an extent towards your brothers, and particularly towards your own husband and children. I accept that you have tried to please and support others, and have seen yourself in that role, and that you have been a friend willing to listen and help such as in Ms Bath's circumstances. I accept that illegal activity such as stealing is regarded by those who have known you for many years as out of character for you.
34It surprises me, however, that your husband can write that he was shocked and surprised that you took approximately $280,000 as he sees it, from your then employer. He ascribes the cause to your employer making you stay at work and not allowing you to attend the hospital on the day that your mother died and before her death. Not only does Mr Andrews deny knowing on the day of your need to leave work for your mother, the facts show that your stealing had commenced and become entrenched some 15 months before the date of your mother's death, so I discount her actual death or the behaviour of your employer on that date as having any significant contribution to your offending.
35Further, the amounts being paid into bank accounts in your husband's name or your joint names over the 18 months or more of your thefts, even if about $100,000 was then withdrawn and stored in cash by you, must have been very obviously well beyond your salary and noticeable to him.
36I do accept the evidence of Ms Bath that your work in accounts areas, including managerial roles for the Knox Council, was well respected, regarded as ethical and professional and careful over some 15 years there. I also accept that you became friends and have remained so with Ms Bath and she has been aware of your suffering depression and also of your marriage being unhappy for many years. I accept her view, as I have already said, that this offending she regards as wholly out of character for you.
37I was also told by your son in his evidence of your family orientation and it extending beyond your immediate children, to also be supportive of two individual young women who were having troubles and whom you took into your home to live with you for some years.
38You are undoubtedly entitled to bring into account to your credit that you have a long established history of stable living, of employment whilst raising, supporting and running a family, caring for your parents as well as your husband and children, and also engaging in activities such as managing your son's junior football club, as team manager of a netball club, engaged on the committee and president of your children's kindergarten centre and participating in charitable events run by the Knox City Council while you were employed there, such as Carols by Candlelight for some eight years.
39You do have one previous court appearance for another offence. In October 2010, you were before a Magistrates' Court on a charge of theft from a shop and without conviction, you were placed on a good behaviour bond. Significantly, there was a condition that you continue to attend a named psychiatrist, being Dr Quine, from whom there is no material before the court but I am told that the primary form of his treatment of you was medication rather than counselling.
40That offence for which you were before a Magistrates' Court in October 2010, in isolation, is not serious enough to count against you. However, I regard it as having some relevance in your case. Very shortly after that court appearance you commenced your employment with Smart Water. On 2 May 2011, you were discharged from that order made in the Magistrates' Court, being a six month good behaviour bond, having fulfilled it. Less than three weeks later, that is after discharge of the bond, your offending against your employer started, and by the end of that very month, you had stolen close to $5000.
41The prior offence, and indeed reference to a previous incident of theft from shops for which you received a warning, certainly does not reflect longstanding entrenched criminal activity or behaviour by you. However, these incidents appear to be forerunners of the offending which brings you here, albeit stealing in different and perhaps more commonly seen circumstances for a woman of your age with the personal stress you were feeling.
42It is also clear that the understandably lenient penalties imposed for the earlier incidents had not achieved specific deterrence, in that they were not sufficiently salutary either to change your inclination towards theft or to cause you or those around you to take sufficient note of what I am told were the underlying problems that led to this much more significant offending. Of course, that does not mean that I would be punishing you again for those prior incidents but, for the reasons I have stated, I do consider they have some relevance.
43I turn now to some specific factors in your background which do have relevance to the sentencing factors as I apply them in this case. There is a history of mental health problems in your family. Within two years of arriving in Australia, your father was hospitalised at Royal Park for some months after what was described as a mental breakdown. I am told that that arose in the context of a stressful work environment, and although he returned to work, I infer that he remained psychologically vulnerable.
44Two of your older brothers have a history of schizophrenia. There is no suggestion that you suffer from schizophrenia, but Dr Walton considers it probable that you had a genetic predisposition towards mood disorder activated by external stressors.
45You have some personal history of previous depressive illness. First, after your daughter's birth, you apparently suffered post natal depression for which you were prescribed medication, and from which you recovered. Some years later, in 1992, you suffered a further depressive episode due to marital problems and discovering your husband's infidelity, and you were again prescribed medication, but apparently did not fully recover. There were exacerbations over the following years due to increased stress from your conflict with your daughter, and then due to your mother's illness, particularly from early 2010. You were prescribed antidepressants and sleeping medication, and according to your GP’s report, and indeed the report of Dr Walton, you still are prescribed and taking that medication.
46You have been assessed for this case by Dr Lester Walton, consultant psychiatrist. He diagnoses you as suffering from a chronic depressive condition, probably with some genetic predisposition, but contributed to by various external stressors and significantly by your mother's death. His opinion is that your chronic depressive disorder was central to your offending, and an example of what is seen in some other middle age women as manifesting in shop stealing, as it did at first in you, and then transferred to theft from your employer.
47Dr Walton notes that in retrospect and relatively recently you have formed the view that there was an element in your offending where you were seeking to punish your employer for perceived ill-treatment and extra pressure on you, the primary driver for that coming from your long-standing pathological interaction with your husband, and your perception of your employer as having similar behavioural tendencies. Dr Walton regards this as anger directed towards your spouse, and considers that with your lowered mood from your depressive disorder, your judgment was quite lowered. In this way your depressive order made a central contribution to your offending by eroding your capacity to exercise your judgment and amplifying your sense of anger and bitterness towards your husband, spilling over to your employer. Dr Walton also expresses the opinion that your depressive order will make enduring imprisonment more onerous on you than on others without that condition.
48I have also read a report and heard evidence from Mr Patrick Newton, consultant psychologist, who assessed you, and also took into account a report which I have also read by psychologist Dr Barth of Mr Newton's practice, who has been treating you since April 2013. Both Mr Newton and Dr Barth diagnose long-standing depressive mood disorder. Mr Newton found that the testing he administered did not produce useful results because of your lack of concentration, which he found consistent with your presentation throughout your interview with him, and with the depressive condition which he diagnosed.
49You also told him of your view that your employer had mistreated you, and you had been subjected to workplace bullying and harassment, and that your offending was an indirect response to that, and you also told him it reflected a desire to place your employment in jeopardy. As there was nothing done by you to enable your thefts to be discovered while you were still working there, I am not satisfied that the latter theory is at all likely.
50I accept from Mr Newton's evidence that he found a causal connection between your depressive mood disorder and your offending, because it would have lowered your ability to cope with problems and stressors at work, and reduced and affected your judgment. I also accept his opinion that you would find adjustment to a prison environment slower than others might without your condition, and that it could increase or intensify your experience of depression. I also accept his view, reinforced by Dr Barth's report and indeed your own letter to me, that you have benefited considerably from the psychological counselling you have undertaken, learning to analyse the causes of your offending and also learning coping mechanisms for further and future stressful situations and encounters.
51I also accept that the process of discovery of your offending and bringing these charges before the court has caused you considerable anxiety and the ongoing uncertainty of your sentence in particular. That is common amongst people who find themselves before courts on serious charges for the first time, but I do not overlook or underestimate it.
52I am satisfied on the evidence that you were, at the time of the offending, suffering from a chronic depressive disorder, exacerbated during that period by the death of your mother. I am satisfied that that condition probably contributed to your offending by eroding your ability to make sound judgments and amplifying your reaction to your perception of mistreatment by your employer, as enhanced by your seeing him as behaving similarly to your husband.
53In these circumstances, I do find, as urged by your counsel, that the principles in Verdins' case are enlivened. I am satisfied that your culpability should be viewed as less serious due to reduced judgment or perception of wrongdoing, caused by your depressive condition, and also that the need for general deterrence should be significantly moderated, despite the prolonged period and multiplicity of transfers, as you were acting overall under the influence of a depressive disorder. To an extent, specific deterrence should also be moderated for this reason, I consider that the exposure of all of your background, and the shame you feel about your offending, are likely to act as the greatest specific deterrent in your circumstances. Whatever your sentence, I do not give that element of sentencing great weight, that is specific deterrence.
54I also take into account that you are likely, due to your depressive disorder, to find adjustment to and endurance of imprisonment more onerous than someone without that condition.
55In light of your background, your history, the shame you have experienced from discovery of these offences, and particularly the exposing of the background stressors on you, and the progress you have made through Dr Barth's counselling, I regard your prospects of rehabilitation as good, and my sentence has taken into account that you should not be discouraged from continuing with that course of progress. For that reason, I have reduced the period I consider necessary for you to serve in actual imprisonment.
56I was referred by both counsel to a number of other sentences made by judges in this court for offences of theft by females from employers, with similar range of amount of money, and in similar positions within their employer's organisations to yours. I have read a number of them, but not all of them, in full. I have taken into account a number of the principles stated in those, and also confirmed in my own mind that - as is trite to say - each case must be considered on its very particular circumstances, and that is what I have done with your case.
57Taken as a whole, however, I regard the range of cases brought to my attention as indicating that in most cases a sentence of imprisonment will be necessary to adequately denounce, punish and deter others from engaging in offences of this type. I have also concluded that in the majority of those recent cases, although far from all of them, some immediate and sometimes significant imprisonment has been ordered to be actually served.
58I was urged to impose a sentence which did not require any immediate imprisonment, but if it did, that it be in the form of a partially suspended sentence, rather than the imposition of a non-parole period. I am satisfied that that is the appropriate course in your case, and I will explain the consequences of that shortly.
59As I have already indicated, in my view, the seriousness through the extended nature, number of transactions and amount of the offending in this case leads to the conclusion that no sentence other than imprisonment would be appropriate. I consider that that seriousness also requires that some immediate time in custody be served, but both the head sentence and time to be served have been moderated to take into account all of the factors I have already explained.
60Would you now stand up, please, Ms Addison.
61Valerie Addison, on each of the three charges you are convicted and sentenced as follows: On Charge 1 you are sentenced to a term of three months' imprisonment; on Charge 2 you are sentenced to a term of 18 months' imprisonment; on Charge 3 you are sentenced to a term of six months' imprisonment.
62I direct that two months of the sentence on Charge 3 be served cumulatively on the sentence on Charge 2. All other parts of the sentence will be served concurrently. That creates a total effective sentence of 20 months' imprisonment.
63I direct that the sentence be partially suspended, such that five months are to be served immediately and the remaining 15 months to be suspended for a period of three years.
64I must explain the meaning and operation of that sentence. You must serve five months' imprisonment which will commence today. The remaining 15 months will be suspended and will not need to be served at all, provided that during the three years that this sentence remains operational you do not commit any further offence that could be punished by imprisonment. When I say any offence that could be punished by imprisonment, I refer to offences that, in theory, can be punished by imprisonment, even though in the circumstances the court might not impose imprisonment. That would include stealing a can of soft drink or a single item from a shop. That is an offence of theft as you have learnt in the past, and would amount to a breach of the suspended sentence. That means it will hang over you for three years, but as I have previously indicated, in my view, the prospects are of you ceasing this behaviour, having had your own and the attention of others around you brought to grips with the underlying depressive illness from which you have suffered apparently for many years, and also because I do consider this is a very salutary lesson to you. Do you understand the meaning of the partially suspended sentence?
65OFFENDER: Yes, Your Honour.
66HER HONOUR: All right. You can take a seat.
67I want to just check - I think there was a form of s.464ZF order handed up ‑ ‑ ‑
68MR ELLWOOD: There was, and it's ‑ ‑ ‑
69HER HONOUR: ‑ ‑ ‑ but I wasn't addressed on that last week. Is that ‑ ‑ ‑
70MR ELLWOOD: No. It is a matter entirely for Your Honour in terms of Your Honour has the discretion whether or not to order - I think the test is whether Your Honour considers it justified.
71HER HONOUR: Yes. I accept that the seriousness of the offending would bring it into the type of matters for which that now is able to be made, it does not have to be on the - in the past, theft was not on the schedule of offences for a forensic sample order.
72MR ELLWOOD: No.
73HER HONOUR: In my view, this is not the type of offending that a forensic sample has much relevance to, and in all the circumstances and with the background, I do not think it is necessary to make an order to put the DNA on the database here.
74MR ELLWOOD: I do not seek to address Your Honour any further on it, Your Honour. Your Honour still has an obligation under s.6AAA.
75HER HONOUR: Yes, I beg your pardon. That is on the next page.
76MR ELLWOOD: And I do have some corrections for Your Honour. They will not affect Your Honour's reasoning in terms of the judgment, but there are some dates and so forth.
77HER HONOUR: Yes.
78MR ELLWOOD: Your Honour for example referred to the mother's death as being 2011, it was in fact 2012. Now Your Honour then said she had been offending for three months, that of course would take it out to 15 months, so it does not change Your Honour's reasoning in that respect.
79HER HONOUR: All right. That is the correct date, is it?
80MR TEHAN: Yes, that is right, Your Honour. When Your Honour revises it ‑ ‑ ‑
81HER HONOUR: All right. Well in some ways, it reinforces that part of the reasoning. When I revise it, if there's no objection, I will just correct that, and I will footnote that it was said differently.
82MR ELLWOOD: Yes, certainly, Your Honour. And the other - Your Honour was searching for the name of the company. It was in fact Hewlett Packard that Your Honour was ‑ ‑ ‑
83HER HONOUR: Yes. I just wondered as I read it in front of me whether I had got that wrong.
84MR ELLWOOD: No. It was matching initials, but they were two different ‑ ‑ ‑
85HER HONOUR: The s.6AAA statement which I am obliged to make is what the sentence would have been had there not been a plea of guilty.
86MR ELLWOOD: Yes, Your Honour.
87HER HONOUR: It as always is artificial to do that, and in particular, because as I have explained, I regard as part and parcel of the plea of guilty the cooperation given to police from the initial investigation time. But, in the circumstances, but for the plea of guilty I would have imposed a total effective sentence of 30 months' imprisonment with 12 months to be served immediately.
88COUNSEL: As Your Honour pleases.
89HER HONOUR: I have not actually now come to look at it - I just was assuming it would be by partial suspension and I will put it as partially suspended.
90MR ELLWOOD: Well it is completely artificial, Your Honour, because the trial indictment would have had 245 charges.
91HER HONOUR: Yes. But the artificiality comes in at a lot of levels with s.6AAA.
92MR ELLWOOD: It does, Your Honour.
93HER HONOUR: But that is what I state for the record. All right. I trust there was no error in the calculations for the actual sentence?
94COUNSEL: No, Your Honour.
95HER HONOUR: And if there are any other errors I made, bring them to my attention.
96MR TEHAN: I just wondered, Your Honour, is it possible to get - when Your Honour does revise your reasons - would Your Honour's associate be good enough to send a copy to me?
97HER HONOUR: Certainly. I think it gets distributed ‑ ‑ ‑
98MR TEHAN: I mean these things, as I understand it, they are available on the net now. But through the good resources of the Crown, I have now got a body of cases concerning this.
99HER HONOUR: Yes. My understanding is that when the unrevised version comes through, I revise it. It gets sent back to VGRS which then releases it to the library which sees to it going onto and I thought it got sent at that stage to the parties' representatives.
100MR TEHAN: Yes. No, generally it does not, from my experience.
101HER HONOUR: To the solicitors?
102MR TEHAN: No.
103HER HONOUR: No. All right, I assumed it did.
104MR TEHAN: Generally it does not. But given that we have had a transcript in this case and it has been over quite some days, Your Honour, I would just appreciate for my own records a copy of it.
105HER HONOUR: When you say there is - certainly I will arrange that.
106MR TEHAN: Thank you, Your Honour.
107HER HONOUR: I am on leave next week but will be no doubt attending to these sorts of tidying up matters before I depart the city, depart the state. So I will ask my associate once it comes back revised, or if it has been revised, to be forwarded to both sides if that is requested. When you mention transcript, I did obtain permission for the original day of hearing of the plea to be transcribed.
108MR TEHAN: Yes.
109HER HONOUR: That did not, to my knowledge, carry over to last week's date.
110MR TEHAN: No, I do not think we did.
111HER HONOUR: No.
112MR TEHAN: It does not matter anyway.
113HER HONOUR: It would need another authority for it.
114MR TEHAN: No. Well I am not asking for a ‑ ‑ ‑
115HER HONOUR: I am just trying to make clear, I do not think there has been continuing transcript.
116MR TEHAN: No, there has not.
117HER HONOUR: It was because of that break. And it has been useful for me to go back to read that, and it proved quite necessary, and that is where I underestimated the time it would take me to work the case to a point of proceeding with this.
118MR TEHAN: No. We understand, Your Honour.
119HER HONOUR: All right. Now there is one last matter. I will not do it if you ask me not to, but do you seek there to be a custody note? I had in mind a statement that - well there is two aspects, that it is your client's first time in custody.
120MR TEHAN: Yes.
121HER HONOUR: But secondly, I would not reveal them without it being requested, but the reports of Dr Barth, Mr Newton and Dr Walton can be forwarded if you wish, but not otherwise.
122MR TEHAN: Yes. Might my instructing solicitor approach the dock, Your Honour?
123HER HONOUR: Yes.
124MR TEHAN: Yes, Your Honour, if Your Honour makes that note we would appreciate it.
125HER HONOUR: All right. If your instructor has another copy of Dr Barth's report it would be useful, if that is to be forwarded, because I have not brought it here today and it could not be forwarded today otherwise.
126MR TEHAN: I am sure there is a copy on the file. I haven't brought my own. But anyway, we will sort that out, Your Honour.
127HER HONOUR: I will leave that for my instructor to ask for.
128MR TEHAN: We will sort that out.
129HER HONOUR: All right. I will ask, therefore, for Ms Addison to be taken into custody, please.
130MR TEHAN: Could I just see her before she goes, Your Honour?
131HER HONOUR: Yes. Do you want me - normally I do not leave the Bench until this occurs. I have been asked not to. But if you have got a particular ‑ ‑ ‑
132MR TEHAN: No, that is all right.
133HER HONOUR: ‑ ‑ ‑ I can ask her to stay here for ‑ ‑ ‑
134MR TEHAN: If I could just approach the dock for a moment, Your Honour.
135HER HONOUR: Certainly.
136MR TEHAN: Yes, thank you for that indulgence, Your Honour.
137HER HONOUR: All right. Could Ms Addison be removed, please, from the courtroom. It looks like there is a bit of a hold-up there. I might adjourn the court.
138MR TEHAN: She was just a bit worried about her medication, Your Honour.
139HER HONOUR: Yes. Well the medication can also be mentioned on a custody note if you want. If you could give the exact ‑ ‑ ‑
140MR TEHAN: Yes, if it could, Your Honour. I know she has brought that with her, her husband has it, so ‑ ‑ ‑
141HER HONOUR: Yes. I think they take it. It will be taken with her to custody.
142MR TEHAN: She is just a bit concerned about what is going to happen, that is all. I mean we tried to explain as best we can what is going to happen, Your Honour.
143HER HONOUR: Yes. Is the medication with your client or with her husband or in a bag at the moment?
144MR TEHAN: It is with her husband, Your Honour.
145HER HONOUR: All right.
146MR TEHAN: My instructor will take it downstairs. He is familiar with the process. He has got to take it down. All right, well we will do that.
147HER HONOUR: All right. If you have the details of the dosage or medication it can be put on the custody note also.
148OFFENDER: I've got that - I've got it written on the boxes, on there, what ‑ ‑ ‑
149MR TEHAN: We will give that information to Your Honour's associate, Your Honour.
150HER HONOUR: All right. Yes, there is just a bit of handing over of materials. I am not sure what comes. I will ask the custody officer - the bag gets taken down separately, is that right?
151VOICE (from body of the court): Yes, taken (indistinct) the bag, yes, yep. I can take the bag, Your Honour, yes.
152MR TEHAN: You can take the bag?
153VOICE: Yes, yes.
154HER HONOUR: All right. Perhaps if your instructor could approach him to - where has the medication gone now? It is in the bag. Never easy situations.
155All right. I will adjourn the court, please, until 10.30 tomorrow.
156COUNSEL: Thank you, Your Honour.
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