Director of Public Prosecutions v Afuie
[2025] VCC 331
•24 March 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-00446
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RASELA AFUIE |
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JUDGE: | HER HONOUR JUDGE MARICH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 December 2024, 10 February 2024 | |
DATE OF SENTENCE: | 24 March 2025 | |
CASE MAY BE CITED AS: | DPP v Afuie | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 331 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCE
Catchwords: Charges: obtaining a financial advantage by deception - attempting to obtain a financial advantage by deception – prolific and relentless offending - creation of false invoices for payment - 230 fraudulent transactions - total of $1,198,996.50 obtained over 16 and a half months – two attempts made after offending discovered – police notified - $132,520.25 repaid – offending grave and serious – preplanning - moving and articulate victim impact statement – plea of guilty at earliest possible stage – remorse – no prior criminal history – potential hardship on third parties not exceptional - imprisonment will weigh heavily on offender – realistic fear of deportation increases burden of sentence - pathological gambling addiction – general and specific deterrence moderated due to vulnerable mental state at time of offending – rehabilitation
Legislation Cited: Sentencing Act1991 (Vic), Crimes Act1958 (Vic)
Cases Cited:R v Bulfin [1998] 4 VR 114, R v Spicer [2003] NSWCCA, Verdins, Buckley and Vo (2007) 16 VR 269, Markovic v The Queen (2010) 30 VR 589, Guden v The Queen [2010] VSCA 196
Sentence: Total effective Sentence of 3 years and 9 months imprisonment, non-parole period of 2 years and 3 months. 6AAA: were it not for pleas of guilty in this case, had the matter proceeded to trial but resulted in guilty verdicts, a total effective head sentence of five years and four months imprisonment would have been imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr B. Sharp | Office of Public Prosecutions |
| For the Accused | Ms E. Strugnell | McNally & Gleeson Lawyers |
HER HONOUR:
Introduction
1Rasela Afuie, you have pleaded guilty to an indictment containing:
· Four rolled-up charges of obtaining a financial advantage by deception, each of which carries a maximum penalty of 10 years’ imprisonment or 1200 penalty units; and
· Two charges of attempting to obtain a financial advantage by deception, each of which carries a maximum penalty of five years’ imprisonment or 600 penalty units.
2The circumstances in which you came to commit those offences are contained in the summary of prosecution opening for plea dated 7 August 2024, which was read into evidence and exhibited in your hearing as Exhibit A. The prosecution has also relied upon:
· Outline of Prosecution Submissions dated 6 December 2024 (Exhibit B); and
· Victim Impact Statement of Concetta Colangeli dated 13 August 2024 (Exhibit C).
3Since the conclusion of the oral hearing of the plea in mitigation of penalty, I have received outline of prosecution further submissions dated 13 March 2025, which is now marked into evidence as Exhibit D.
4In addition to the matters developed in oral argument, your counsel has provided me with the following documents:
· Defence Plea Submissions dated 6 December 2024 (Exhibit 1);
· Psychological report of Warren Simmons dated 13 August 2024 (Exhibit 2);
· Letter from Banyule Community Health dated 5 December 2024 (Exhibit 3);
· Letter from Austin Health dated 4 December 2024 (Exhibit 4);
· Bundle of character references (Exhibit 5);
· Letter from Riana Kok of Craigieburn Wallan Congregation, 'Minister of Uniting Church (Exhibit 6);
· Bundle of medical documents relating to Iakopo Toluono (Exhibit 7); and
· Letter outlining your responsibilities (Exhibit 8).
5Since the conclusion of the hearing, I have received the following documents which have been marked into evidence:
· Further Outline of Defence Submissions for Plea dated 11 March 2025, (Exhibit 9);
· Further documentation in relation to Iakopo Toluono, comprising Northern Hospital discharge summaries dated 4 February 2025, 24 February 2025 and 3 March 2025, medicine list dated 4 February 2025, Northern Health cardiology outpatient report dated 25 February 2025, coronary angiogram procedure report dated 3 March 2025 and GP patient health summary of Craigieburn Medical Centre dated 16 February 2025, marked as (Exhibit 10);
· Northern Health carer’s leave certificate for you dated 24 February 2025, (Exhibit 11);
· GP patient health summary of Mr Tavita Afuie from Craigieburn Central Medical Centre dated 16 March 2025, (Exhibit 12);
· Bundle of employment letters relating to three of your sons:
§from Border Express, dated 13 February 2025 confirming Mr Craig Afuie’s employment,
§from I&D Group Pty Ltd, dated 13 February 2025, confirming Dave Afuie’s employment, and
§from Bapcor dated 26 February 2025, confirming Jason Afuie’s employment,
(Exhibit 13); and
· A document titled 'Mum vs who will continue', (Exhibit 14).
6I have taken all exhibited documents into account, I have read all cases to which my attention has been directed, and I have reflected carefully on the submissions of each counsel in composing my reasons for decision and the ultimate orders.
Circumstances of offending
7During your period of offending, which is to say, between 1 February 2022 and 19 June 2023, you resided in Craigieburn with your father, husband, and two of your sons. You are a citizen of New Zealand, and you hold a special category visa which permits you to live and work in Australia.
8The victim of your offending is Diamond Freight Services Pty Ltd, whom I will refer to as 'Diamond Freight', owned by director Concetta Colangeli, which is located at an address in Logistics Street in Tullamarine. Diamond Freight is an international logistics company whom clients engage to manage the logistics of freight for their companies. Diamond Freight pays suppliers, such as other logistics companies, airlines, shipping lines, customs and tracking companies, to complete various jobs.
9You commenced employment as an operator with Diamond Freight on 27 June 2016 when you were aged 40. You were the only employee based in Melbourne who was responsible for managing clients’ air freight. Here I interpolate – you were not responsible for client funds and remittances. Another operator, Lisa Atkinson, performed the same role in Sydney.
10Between 13 and 16 June 2023 you took personal leave and travelled to New Zealand. During your absence Ms Atkinson assisted with your Melbourne-based work.
11On 15 June 2023 Diamond Freight’s accounts payable manager, Sophie Murone, called the director, Ms Colangeli, to express concerns about a number of client accounts. Ms Murone told Ms Colangeli that there were several suppliers’ invoices that had been paid without any client having been billed, which resulted in money going out but no money coming in.
12Ms Atkinson and other operators investigated and discovered this was a recurring issue with the air freight that you managed.
13Ms Colangeli was in Berlin at the time but was able to access the company’s system containing details of each shipment and transaction. She noticed that the purported jobs on the identified invoices had none of the customary comments regarding customs clearance, no transport information, no customer information and no billing information. She was able to determine that the invoices predominantly came from three companies: All World Logistics, Express Customs and Forwarders and One Global Logistics. There were also some invoices from Truck It Net. Ms Colangeli contacted the three companies and representatives confirmed that the bank account details on the invoices did not belong to them and that there were no jobs that corresponded to those invoices.
14Ms Colangeli and her employees then identified over 200 fraudulent transactions since 2022, resulting in a total of $1,198,996.50 obtained from Diamond Freight Services Pty Ltd by you. This process revealed your modus operandi in that you would create false invoices by entering data into a blank Excel template, then you would convert that template to PDF before sending the false invoice to Ms Murone for processing, leading to Ms Murone paying the amount apparently due on the false invoice into the bank payee details, which were indeed bank accounts controlled by you.
15Your indictment contains a schedule which sets out each of the invoices referable to each of the charges to which you have pleaded guilty.
16The offending referable to your Charge 1, a rolled-up charge of obtaining financial advantage by deception, comprises your actions between 1 February 2022 and 6 June 2023 which led to you dishonestly obtaining the sum of $380,941.90 from Diamond Freight Services Pty Ltd, by you presenting in excess of 80 invoices purporting to be from the company Express Customs & Forwarders, and naming banking details for the remittance which in fact was an account controlled by you. The invoices were for varying amounts; four which ranged between $1,200 and $1,600 and another four exceeding $8,000, with the remainder being for amounts falling in between. These false invoices were paid in full by Diamond Freight Services Pty Ltd and of course you had no entitlement to any of that amount.
17The offending referable to your Charge 2, a rolled-up charge of obtaining financial advantage by deception, comprises your actions between 10 February 2022 and 8 June 2023 which led to you dishonestly obtaining the sum of $526,102.45 from Diamond Freight Services Pty Ltd, by you presenting in excess of 100 invoices purporting to be from the company One Global Logistics, and naming banking details for the remittance which was in fact an account controlled by you. The amounts involved three invoices for amounts between $1,300 and $1,900 and eight invoices exceeding $8,000, with the remainder being for amounts falling in between. These false invoices were paid in full by Diamond Freight Services Pty Ltd, and of course you had no entitlement to any of that amount.
18The offending referable to your Charge 3, a rolled-up charge of obtaining financial advantage by deception, comprises your actions between 21 and 25 March 2022 which led to you dishonestly obtaining the sum of $8,937.50 from Diamond Freight Services Pty Ltd, by you presenting two invoices purporting to be from the company Truck It Net and naming banking details for the remittance which was in fact an account controlled by you. The offending comprises two invoices over those five days for identical amounts of $4,468.75. These false invoices were paid in full by Diamond Freight Services Pty Ltd, and of course you had no entitlement to any of that amount.
19The offending referable to your Charge 4, a rolled-up charge of obtaining financial advantage by deception, comprises your actions between 16 June 2022 and 8 June 2023 which led to you dishonestly obtaining the sum of $283,014.65 from Diamond Freight Services Pty Ltd, by you presenting in excess of 50 invoices purporting to be from the company All World Logistics and naming banking details for the remittance which was in fact an account controlled by you. The invoices were for amounts ranging between $2,800 and $7,400. These false invoices were paid in full by Diamond Freight Services Pty Ltd, and of course you had no entitlement to any of those amounts.
20I have mentioned that it was during a period of leave between 13 and 16 June 2023 that your offending was discovered. On your return to work on 19 June 2023, you created a further two false invoices; the first purported to be from one Global Logistics for the sum of $3,938.83; the second purported to be from All World Logistics for the sum of $5,662.73. You emailed each of these invoices to Ms Murone who alerted Ms Colangeli. Ms Colangeli terminated your employment and attended the Broadmeadows police station to provide a statement regarding the offending. Your dishonest submission of these false invoices in an attempt to obtain payments of these amounts is the offending referable to your Charges 5 and 6 of attempting to obtain financial advantage by deception.
Investigation and interview
21On 10 July 2023 police obtained search warrants for the ANZ Broadmeadows branch, the Westpac Broadmeadows branch and your home address.
22Police obtained documents that revealed that you held a Westpac Bank Choice account which had received 55 payments from Diamond Freight; an ANZ Access Advantage account which received 81 payments from Diamond Freight; another ANZ Access account that received two payments from Diamond Freight and an ANZ Online Saver account which received 105 payments from Diamond Freight.
23Your home was searched pursuant to warrant on 18 August 2023, and you were located and arrested and a number of bank cards were seized by police. You participated in a recorded interview where you made full admissions to the offending.
Effect on the victim
24As a result of your offending, you caused payment of $1,198,996.50 to which you were not entitled, to be diverted from Diamond Freight Services Pty Ltd into your own accounts. After your offending was discovered, you entered into a 'company deed' with the victim company in which you acknowledged your dishonest appropriation of the funds. This occurred before you were charged.
25You have repaid $132,520.25, an amount just shy of $1,067,000 is the current loss to the victim.
26In this case I have the benefit of a Victim Impact Statement from the director of the company, Concetta Colangeli, who has described the toll that your fraud has had on her company and herself. It is difficult to do justice to the moving and articulate expression of that loss without reading directly from the statement itself, which is what I propose to do in describing the emotional impact of the offending:
'When this crime was detected in June 2023, I was on business in Berlin Germany with an intended flight to another business conference in Costa Rica the following day. For the first time in my life, I felt like I was having a heart attack and could not breath. I then stayed awake for 24 hours going through my computer software with disbelief. I have never felt this much anxiety and stress.
I made the necessary cancellation and booking to return to Australia the next day. Once on the flight I slept the next 24 hours returning home not knowing consequence of not moving on an aircraft for that long period of time. On my return I felt bad chest pains and saw my GP. He sent me for a scan as he was concerned of blood clotting that if it is in the lung area can be fatal.
Thankfully no clots were found, however, the long-term effects of anxiety, which I never felt before, have changed in my home and professional life.
I felt disbelief at the time then hurt and anger. On the day of return to my office I had to remain professional when confronting the accused due to the fair work laws in this country. Showing understanding, professionalism and staying calm, when inside I felt betrayed and broken. On that day I was comforted by my 25-year-old son that made me breakdown and cry in his arms.
This to me is not the way life should be, as we bring them into this world to nurture and protect them'.
27In describing the financial impact of the offending:
'I have spent half my life working extremely hard to build and grow a successful business.
There have been sacrifices to grow and achieve success, sacrificing personal income to build up working capital for more than two years, time spent away from being with my husband and children. Two of my children were born while I was in business and from leaving the hospital I brought them to work with me every day until three months old when they went to full time care.
The number of hours that I have worked over the years to make the business successful included finishing work at 4.00 am for many years and doing 90 hours a week.
The crime that has taken place has put a huge financial strain on me personally and on the business. From the travel expenses the day the crime was detected with cancelling and rebooking flights to return within 24 hours to the excessive legal costs, I have been paying to my lawyer to recover what I have worked hard all my life for.
The freight forwarding business requires a good cash flow to operate. I had reached a point in my life that I was starting to feel some financial freedom towards my retirement and the ability to continually grow the business with years of building a cashflow to do so. I have never taken any funds as a director to build a solid foundation for my business, my family and my future and for the future security of my long-standing employees.
I employ 14 staff and unfortunately again due to the crime have not been able to review any salary increases in this financial year.
Personally, I have had to re-draw money from my personal home loan recently to assist my family and the business, further impacting my financial position.
My company has a licence … which allows me to buy space with the airlines. As part of this license, I provide them with financials every year. To further put strain on the business due to the outcome of 2023 tax return (huge loss due to the crime, first time showing a negative return) the business was required to provide a bank guarantee of $74,000, tying up more funds required now to run my business.
Any part of the business that requires a copy of my financials submitted now has a flow-on effect as it's the first time in 24 years that we show a huge financial loss for 2023 which prevents business advantages such as updated vehicles and equipment and progressing the business forward.'
28In describing the social impact of the offending:
'The pressure, stress and anxiety caused by this situation is something I have never felt and find very difficult to discuss with anyone as I feel the pressure to remain a role model to my children and remain professional to my employees without breaking down.
The impact on my marriage has been strained. I feel I have let my family down, causing conflict and a lack of communication.
I have found due to the circumstances that it now affects trust I have in people, both in my work and social life. Building trust for an employee over seven years, then this happens, now disadvantages the good people in my life.
At 52 years of age, I was starting to commit less hours of work to spending more time with my family as I have missed many years with them. Looking forward to some form of retirement in the years ahead.
I find myself having to work the same number of hours as I did 20 years ago to keep the business and everyone employed to ensure we can recover the huge loss.
Pleas of guilty and timing; remorse
29You were charged in November 2023, just shy of five months after your offending concluded. The matter was initiated in the committal stream at the Magistrates’ Court, and you indicated your intention to plead guilty at committal mention which is the earliest possible stage for you to do so. By your full admissions, and that earliest indication of your intention to plead guilty, you have saved all witnesses from ever needing to attend court to give evidence in your case and you have saved the court and the community the time and expense of a trial.
30I accept, as your counsel has submitted, that your pleas are also indicative of considerable remorse which is a topic to which I will return in the context of your reference material and the psychological report that has been prepared in your case by Warren Simmons.
31I have mitigated sentence significantly to reflect the utilitarian benefit of your co-operation and pleas and your remorse.
Personal circumstances
32The offending commenced shortly prior to your 46th birthday and concluded when you were 47. You are now 49 years of age.
33You were born and raised in South Auckland, New Zealand, and are of Samoan descent. You have an older maternal half-sister who is aged 53 but you are not close to one another.
34Your parents were hard workers who worked in factories, predominantly in night shift. They struggled to make ends meet and you would stay with another family, or a family from the church at times when they were unable to care for you. They separated for a period of three or four years before reuniting and were married when your mother sadly passed away aged 52 from hypertension, 26 years ago. Your father is now aged 71. He lives with you, your husband and your sons, and he struggles with his health which is another topic to which I will return.
35Returning to your upbringing. Your family life revolved around activities with the Methodist Church, and you attended church every Sunday. You also started working at a young age to help support the family.
36You completed the equivalent of Year 12 and did well in computing and not so well in other subjects.
37You then started working full time at a freight forwarding company with work hours between 5.00 am and 1.00 pm, and you also worked in the local cinemas from three till 11.00 pm. On your days off you worked at a fast-food store. After four to five years in this demanding timetable you reduced your commitments limiting them to the freight-forwarding role for six months before resuming work part time at the cinema.
38At the age of 19 you met your future husband at church, and you were married in 1999. You have four sons who are now aged, as I understand, between 17 and 27. You travelled to Australia for a holiday in 2002 and you decided as a couple that you would like to live here, and you moved in 2003.
39In Australia you worked at a call centre for a year, then you worked at a transport and logistics company as a personal assistant to the CEO for about eight months and then you continued with importing and freight companies and worked for the victim for seven years. After losing this role as a consequence of your offending, you started at a call centre in August 2023 and were promoted to team leader in December 2023 and in June 2024 became a time analyst.
40You have no prior criminal history and at the time of your offending were a person of good character, which I take into account in mitigation of sentence.
41During the Covid-19 pandemic you were introduced to online bingo on Facebook, which is an illegal practice, with individual sites in a constant process of being discovered and shut down and then they are replaced by other sites which then go through the same process. Initially, you lost thousands of dollars which you could manage financially until you found yourself struggling to pay the bills and the mortgage. You then accessed your superannuation funds via financial hardship provisions, and you commenced your spree of offending. The funds that you dishonestly obtained through your deceptive practices were spent predominantly on your online gambling habit with smaller amounts spent on lifestyle, holidays and personal expenses.
42Warren Simmons, psychologist, has assessed you and diagnoses you with a pathological gambling addiction at a problematic level in severity, accompanied by severe levels of depression and anxiety as well as stress. He considers that you will find time in custody onerous and considers that you may 'very well be an easy target for harassment, bullying and other unwanted behaviour,' and considers that your time in custody may entrench your symptoms of depression which could lead to a full depressive disorder. He confirms your embarrassment and shame at your actions and your remorse for your actions. I accept your counsel’s submission, unopposed by the learned prosecutor, that any sentence will weigh more heavily upon you than it would a person without depression and anxiety and a sentence may cause your condition to deteriorate. Your sentence is therefore moderated in the proper application of Verdins factors five and six.
43After your offending was detected, you were referred for counselling, and I can see from the letter of Violeta Stolevska, senior clinician who works with Gamblers Help Northern at Banyule Community Health, that you attended 12 counselling sessions between August 2023 and December 2024. In her view you responded well to, and participated actively in, the counselling process and you report that you have stopped gambling during that time.
44I have been provided with letters of reference from your husband and children, and they describe you as normally a kind, loving and caring person, well known for your kind heart, always willing to help others. Each of them has mentioned your remorse for your conduct which, as I have mentioned, I take into account in mitigation of sentence.
45Your husband has told me that aside from the extent to which your gambling habit compromised your integrity, you are a person of high moral standards.
46You are the breadwinner in your marriage. Your husband suffers obesity, hypertension and Type 2 diabetes and he does not work, nor receive any benefits. In the course of the several days of the plea hearing, I was provided with an outline of your daily timetable. The load that you have assumed in respect of the multiple generations of men who live with you is deeply onerous, many may consider it crushing. Until very recently you were accustomed to waking at 3.00 am to pack your adult sons’ lunches and wake each of them before they headed to work, the first to commence at 4.00 am on site, the second at 6.00 am, the third at seven, and then at 7.30 am you would wake your youngest for school. Between those wakings of your adult sons you would prepare breakfast for your father and make sure that he has taken his morning medication. You would then commence working from home at 8.00 am and during the day, as well as working, you would undertake household chores, shop for groceries and make the evening meal as well as overseeing your father’s evening medication, before starting a wind-down at 9.00 pm, asleep at 11.30 pm, only hours before the process commenced again.
47As I have mentioned, your 71-year-old father lives with your family and you are his primary carer. I have been provided with a significant volume of documents in relation to his medical conditions. In 2020 he was diagnosed with a perforated peptic ulcer. In February 2021 he undertook a colonoscopy which revealed moderate diverticulitis in all colon segments. He has also required care for cardiology concerns. More recently, by January this year, he has developed fatigue, hypotension and confusion and severe anaemia which led to hospitalisation for treatment. Then in early February this year he was diagnosed with gastrointestinal haemorrhage. He takes a considerable number of medications for his medical issues. He refuses to engage with external assistance such as My Aged Care providers.
48I was provided with letters of employment, indicating that three of your sons work long hours, and I infer that your youngest is still at school. I am relieved to see that a revised timetable outlining your daily responsibilities indicates that your adult sons now set their own alarms and make their own lunches.
49There is concern within the family as to who will care for your father’s complex needs during your sentence. You are also deeply concerned about the effect of the loss of your wage upon family finances.
50One of the matters which I am obliged to take into account in sentencing you is the potential of hardship to third parties. In this case your counsel has submitted that the circumstances justify a finding that the hardship that others in your family will experience is 'highly exceptional,'[1] such as where there is an especially vulnerable dependent or where there are a number of vulnerable dependents.[2] I was told that this may also be established by a combination of lesser hardships to multiple family members. In the leading case of Markovic, for instance, the accused’s parents were 67 and 75 and were in Australia on bridging visas. The mother was wheelchair bound and suffered from diabetes, hypertension and kidney failure. She had suffered a stroke which resulted in the paralysis of the left side of her body. She required full time care which the accused’s father and brother were unable to provide.
[1] Markovic v The Queen (2010) 30 VR 589, [20].
[2] R v Spicer [2003] NSWCCA, [74]-[75].
51Clearly, your family leans very heavily upon you for their care and support and for your financial contribution to the household. Your home has been sold and three of your boys have now purchased a house and land package, which when complete will be the family’s new place of residence. Your husband separately owns another property. There are duties in your daily timetable that are presently unallocated such as managing your father’s medication, grocery shopping and preparation of family meals. It was submitted that were you to be sentenced to a term of imprisonment, 'the whole family would be required to assume additional financial, caring and domestic responsibilities.' This, it was said, enabled me to find exceptional hardship in your case.
52The prosecution has submitted that while it was accepted that your father has ongoing health issues which appeared to be serious, the threshold of exceptional circumstances was not crossed where there were numerous other adult family members in the house (as opposed to the circumstances of Markovic where there was no-one available for the vulnerable family members), and the financial predicament that your family will encounter is far more favourable than in Markovic, where the parents received $180 a month and lived in a dilapidated caravan with no heating or bathroom. I have been provided with considerable detail of your adult sons’ timetable of work but no details of your husband’s timetable. There are gaps in my understanding why, in this household full of capable men and your 71-year-old father, you have held so many personal obligations of care for the others.
53I accept that your father is a vulnerable adult and requires careful and continuing medical oversight in his daily activities with his medication and with his appointments and family needs. Many cases which come before the court involve one or more vulnerable family members, not only aging and unwell parents, but also small children. Your case is unusual in that your vulnerable father lives with so many other apparently capable adults in the same household. He declined to engage with My Aged Care services, as is his right. Even in the case of Markovic the court was unwilling to conclude that the circumstances were exceptional. I do not consider the circumstances of your case to amount to this high hurdle.
54I do consider, as urged upon me by your counsel in the alternative to this argument, unopposed by the prosecution, that any sentence of imprisonment will weigh heavily upon you by reason of your inability to continue to care for your father at his advanced age and in the challenging circumstances of his medical conditions, as well as the pressure of your inability to care for the rest of your family. I mitigate sentence on this basis.[3]
[3] Markovic v The Queen (2010) 30 VR 589, [20].
55I also mitigate sentence on the basis of your realistic fear that you may be deported at the end of your sentence. This increases the burden of your sentence and creates an understandable sense of worry as to the uncertainty of your predicament given that your father may not physically be able to relocate and your sons’ lives are well established here.[4]
[4] Guden v The Queen [2010] VSCA 196.
Objective gravity of your offending; moral culpability; purposes of sentencing; sentencing submissions
56I accept without any hesitation the prosecution characterisation of your offending as grave and serious. You engaged in acts of deception against your employer, manufacturing invoices by imitating the company details of clients, falsely representing that those invoices were due and payable and including your own account details as payee. The offending involved preplanning. The deceptions were reasonably sophisticated and very effective and led to a flow of money from the company into your accounts where it was lost entirely due to your pathological gambling addiction and the way in which it compromised your standards, with some of the quantum spent on lifestyle, holidays and personal expenses.
57The offending endured over 16 and a half months and your two further attempts on your return from leave signify that the scheme might have continued if it was not discovered. During that time there were over 230 instances of false invoicing followed by amounts remitted into your accounts. The amounts defrauded were individually significant, thousands of dollars at a time, often multiple times a week. The charges overlap in their particulars and the schedules to your indictment which set out the details referable to each charge show, for instance, many days on which payment was made to you from different charges on the same day. Just to take a single example: Charge 1, moneys purportedly due to Express Customs and Forwarders but in fact paid to you; on 24 January 2023, $5,861.22, on 25 January 2023, $3,797.08, on 31 January 2023, $4,276.72. Charge 2, claims moneys purportedly due to One Global Logistics but were in fact paid to you; on 24 January 2023, $4,960.85, on 25 January 2023, $1,323.76, on 31 January 2023, $4,681.85. Charge 4, moneys purportedly due to Allworld Logistics but in fact paid to you; on 24 January 2023, $4,828.93, on 30 January 2023, $4,473.09 – over $30,000 in one calendar week. You offended prolifically and relentlessly, defrauding your employer of amounts exceeding $1.1m. Your case is a serious example of deception of an employer.
58These features of your offending are typical of white-collar crimes, as noted by Charles JA in R v Bulfin [1998] 4 VR 114, at 131 to 132. You misused the knowledge of your employer’s client base and processes in violation of your employer’s trust. In such a case general deterrence usually carries particular significance, in other words, I am obliged in this exercise to deter others who may find themselves in the position that you were in from this type of offending. I am also obliged to deter you specifically from further offending. Here your depression and anxiety are relevant to the emphasis of these purposes of sentencing. During Covid your mental health presentation appears to have stimulated you to act out on your gambling addiction. I accept your counsel’s submission, unopposed by the learned prosecutor, that I may moderate slightly the weight to attach to general and specific deterrence given your vulnerable mental health at the time of offending, and I do so.
59Your offending was motivated by your addiction to gambling which does not mitigate your offending but contextualises it. You understand your wrongdoing; it is not in your character which is otherwise of high moral standards.
60I must punish you and denounce your offending.
61You have voluntarily sought treatment for your gambling addiction and have ceased gambling. Given your unblemished history, your family support, your understanding of your wrongdoing and attempts to make amends, and the most salutary effect of these proceedings upon you, I consider that your prospects for rehabilitation are at least good and will be improved if you continue to engage in treatment for your gambling addiction. I will emphasise rehabilitation as a purpose of sentencing today.
62I have been provided with a number of past cases by counsel which bear some similarity to your circumstances, each of which I have read carefully.
63It has been properly conceded by your counsel that the only appropriate sentence is a head sentence with parole eligibility.
64Madam, could you please stand.
Sentence
65I now pass the following sentences:
· On Charge 1 of obtaining financial advantage by deception, you are convicted and sentenced to two years’ imprisonment, six months of which I order be served cumulatively upon the base and upon other sentences.
· On Charge 2 of obtaining financial advantage by deception, you are convicted and sentenced to two years and six months. This is the base.
· On Charge 3 of obtaining financial advantage by deception, you are convicted and sentenced to nine months’ imprisonment, two months of which I order be served cumulatively upon the base and upon other sentences.
· On Charge 4 of obtaining financial advantage by deception, you are convicted and sentenced to two years and three months’ imprisonment, six months of which I order be served cumulatively upon the base and upon other sentences.
· On Charges 5 and 6 of attempting to obtaining financial advantage by deception, you are convicted and sentenced to an aggregate of four months’ imprisonment, one month of which I order be served cumulatively upon the base and upon other sentences.
66This is a total effective sentence of three years and nine months’ imprisonment, and I order that you serve two years and three months before parole eligibility.
67Is there any pre-sentence detention?
68MR SHARP: No, Your Honour.
69MS STRUGNELL: No, Your Honour.
70HER HONOUR: Were it not for your pleas of guilty in this case, had the matter proceeded to trial but resulted in guilty verdicts, I would have imposed a total effective head sentence of five years and four months’ imprisonment.
71And with your consent I will make a compensation order sought by the prosecution in the sum of $1,066,476.25.
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