Director of Public Prosecutions v Andelman

[2014] VCC 1088

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-00374

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSEF ANDELMAN

---

JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Melbourne
DATE OF HEARING:	5, 6, 7, 8, 9, 12, 13, 14, 15, 19, 20, 21 May 2014
DATE OF SENTENCE:	4 July 2014
CASE MAY BE CITED AS:	DPP v Andelman
MEDIUM NEUTRAL CITATION:	[2014] VCC 1088

REASONS FOR SENTENCE
---

Subject:
Catchwords:  Theft.
Legislation Cited:  
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Porceddu	OPP
For the Accused	Mr J. Desmond	Valos Black

HIS HONOUR:

1Josef Andelman, you have been convicted by a jury of 82 charges of theft.  Your offending occurred between July 2007 and October 2008.

2You were then employed by National Protective Services Pty Ltd (NPS) a company contracted by the City of Melbourne to collect coins from various parking metres throughout Melbourne.  Each of the theft offences for which you have been convicted involved you stealing coins you collected as part of your employment.

3You and other employees exploited a weakness in the security system utilised to collect coins.  You regularly took coins home, banked them and distributed cash shares to co-accused fellow employees of the company.

4Melbourne City Council discovered coin total shortfalls in late 2008.  Clearly they should have realised earlier that you and your fellow thieves were stealing coins.  However, the failure of Melbourne City Council to detect your conduct does not in any way excuse your crimes.

5Each of the charges for which you have been convicted relates to shortfalls of coins from specific rhinonet ticket machines over the period previously specified.  It was able to be determined what coins were collected from each machine and what coins were handed in and counted.  Your thefts from each machine were able to be quantified by reference to electronic data collected by Melbourne City Council from each ticket machine and comparison with the totals counted and banked for each machine.

6Charnjit Kalia and Rodney Tatnell, and other collectors employed by NPS, also stole coins from parking metres on occasions when they worked shifts with you.  In evidence, each said that on each occasion you stole coins during a work shift with them you took the coins with you and at a later stage gave them money.

7The prosecution tendered deposit details in relation to bank accounts you held at the time that showed deposits of large quantities of coin on 45 occasions during the course of the period on the indictment.

8The total stolen in the 82 charges on the indictment for which you have been convicted was $142,560.  As I have stated, both Mr Kalia and Mr Tatnell gave evidence that the thefts were carried out jointly with you, although neither was able to give details on dates.  The prosecution case was that you committed the offence in each charge with the person who was working on the shift with you.

9Another employee, Cidgem Koch gave evidence.  She said that on one occasion when she worked a shift with you, you asked her whether she would "take" and she said no.  You became angry with her as she was not prepared to join in your stealing activities

10She said on another occasion she saw you near an NPS vehicle which was parked a short distance from the NPS office.  She saw you remove what looked like a bag of coins from the NPS vehicle and place that in the boot of your own vehicle.

11Your co-offenders, except for one, have pleaded guilty and have been sentenced.  On 13 August 2010, Charnjit Kalia was sentenced by His Honour, Judge Gucciardo to 18 months' imprisonment, which was ordered to be fully suspended for 24 months.  His Honour took into account, on Mr Kalia's behalf, the fact that not only did he plead guilty but he co-operated with the police and undertook to give evidence against other offenders, including you.  The prosecution case was that he received the sum of $40,000.  He was a young man, being between 20 to 22 at the time he committed the offences.

12On 5 June 2010, Rodney Tatnell pleaded guilty before His Honour Judge Gucciardo, to theft of $288,440.30.  He was sentenced to 24 months' imprisonment and was ordered to serve a period of 12 months' before parole.  His Honour gave considerable weight in Mr Tatnell's favour to the fact that he pleaded guilty, co-operated with the police and indicated that he would give evidence against co-offenders such as yourself.  His Honour also took into account Mr Tatnell's poor physical health and that he had genuine cognitive limitations.

13One alleged offender Storijenko, has indicated that he will plead not guilty and he is currently awaiting trial.  No, apparently that is wrong I will take that back.

14COUNSEL:  He has had a trial and been found guilty Your Honour.

15HIS HONOUR:  Well, Storijenko has been convicted.  Has he been sentenced?

16COUNSEL:  He has, and he is in prison.  He served a short prison term.  I can get you the details.

17HIS HONOUR:  No, thank you.  In any event, I was not aware of that until now.

18

In the circumstances of this case, principles of parity do not apply as the

co-offenders to which I have referred have pleaded guilty, expressed remorse, co-operated with police, the prosecution, and given evidence against the

co-offenders.

19The offences of which you were convicted were a continuous course of conduct carried out in a way which involved some planning and enlisting the involvement of those who worked the same shifts as you.  It is clear that your offending would have continued had you not been arrested on 12 November 2008.

20Like Her Honour, Judge Douglas, who sentenced you at your first trial, I take into account as a matter of aggravation, the fact that you stole from your employer.  You were trusted to have access to the coins in the parking metres on each of the shifts you worked, and to carry out your duties honestly and responsibly.  You systematically and regularly abused the trust your employer showed you.

21

Rachael Saunders, the Chief Executive Officer of National Protective Services provided a Victim Impact Statement, Exhibit B, to the court.  I take into account the contents of that Victim Impact Statement in sentencing you. 

Ms Saunders stated:

"I had it confirmed at five o'clock on 26 October that my staff were stealing and I felt physically sick.  It seemed as if the world was caving in on me during the initial few weeks.  Initially we lost some good staff who didn't cope with the stress of what had occurred, or who didn't want to work in an environment with that level of responsibility. 

Our insurance, due to a technicality, would not pay for any of the amount and my business was subsequently liable, and we settled the claim with Melbourne City Council this year for $115,000.

Being a security company the damage to our reputation was high.  The cost to the business and the many issues that arose out of this means that I had to cut office and management staff and return to work full time.

Involvement in the theft were some staff that I really trusted, staff that I supported throughout difficulties in their lives, and staff that I care about.  I lost a lot of faith in people and this has caused me considerable stress, anger, sleepless nights and anxiety.  In late 2010 I was having chest pains and after medical checks they were determined to be anxiety.

The pressure on everyone involved when this issue arose over that time was immense, and all of us felt responsibility for what occurred.  Not long before the first committal, Mark Harrup took his own life.  I know that this case of theft had a direct impact on him.  I believe the informant who charged Josef Andelman gave a report to the coroner about the matter in regards to Mark.  I found it disgusting for it to be raised that Mark Harrup may have had something to do with the thefts. 

The way I was treated in this trial was completely different from all the others, although being a witness has never been comfortable.  In this instance it was horrible.  The defence barrister was abusive, and I felt bullied.  Words alone cannot explain the mental, physical, emotional rollercoaster I have endured during this period.  The impact it has had on me, my family and my business, and my reputation has been severe.".

22

I can but endorse Ms Saunders comments in relation to the attack upon

Mr Harrup's integrity by your counsel.  I make it clear, however, that I do not take Mr Desmond's forensic decisions against you.  You are not responsible for the way witnesses were treated, your proposition however, that everyone other than you were liars, was clearly rejected beyond reasonable doubt by the jury, and properly so.

23

As indicated, you were sentenced on 85 charges by Judge Douglas on

15 November 2011, after the first trial.  Subsequently, your convictions and sentences were overturned by the Court of Appeal and a new trial was conducted before me.  The trial was aborted after your counsel raised matters that indicated you had, perhaps, been involved in theft of coins at a time six months before the period of offending charged in the indictment.  Again, I make it clear that I am sentencing you in respect of the charges for which you were convicted, and nothing else.  I discharged the jury to ensure you received a fair trial on these charges and I disregard any offending other than for the matters for which you were convicted.

24Mr Desmond relied upon a number of matters in his plea on your behalf.  He pointed to the cases that confirm the protocol that a judge sentencing after a retrial should not impose a higher sentence than the original sentence.  I accept that this protocol applies to you, despite the fact that you gave evidence in this trial before me, and demonstrated yourself to be a blatant and constant liar.

25You lack any remorse, you refuse to acknowledge your conduct, you told bald-faced lies, and your attack upon prosecution witnesses may bear upon your prospects for rehabilitation but do not aggravate your offending.

26It is also significant that you were acquitted by the jury on three charges.  You fall, now, to be sentenced on 82 not 85 charges, as Judge Douglas sentenced you.  I have reduced the sentence I am about to impose to reflect those acquittals.

27You have also had the matter hanging over your head for a longer period of time.  It is not your fault that the Court of Appeal was required to set aside your convictions and order a new trial.  The resultant delay in dealing with these charges has caused you and your family additional stress, it was not your fault that the legal system let you down. I take the delay and pressure upon you into account in sentencing you.

28I accept, as did Judge Douglas, that you enjoy strong family support and you fall to be sentenced as a man without prior convictions, without subsequent or outstanding matters.

29Your counsel described you as a respectable man of high previous good character.  The references, Exhibit 2, from a friend and your family demonstrate your family's support and I take them into account in sentencing you.

30I was informed that the time you spent in custody prior to the Court of Appeal decision - some 14 days - were spent in 24 hour lockdown.  Clearly that makes your time in custody a more onerous way to spend time in custody.  Although you may be subsequently given credit by the parole board in relation to your non-parole period, and that non-parole period reduced, I do take into account the hardship you had to endure in 24 hour lockdown in sentencing you.

31These offences occurred six to seven years ago.  I accept you have been significantly, specifically deterred from re-offending by your subsequent time in custody.  Yet again, had you been returned to custody away from your loving family, and I accept that going back to gaol has been difficult for you and your family.

32

Your personal history is set out in the sentence of Judge Douglas, Exhibit A.  I have had regard to that history, and the additional history is outlined by

Mr Desmond.  Briefly, you were born in Russia and migrated to Israel at the age of 15, before coming to Australia in 1985.  You were married there for a short time.

33You have been a hard-working man and your work history is set out in Judge Douglas's sentence.  You returned to Israel in 1991 for three years, fighting in the war.  You met, and married, your current wife and you now have three sons aged 19, 16 and 13.

34However, you and your wife experienced some difficulty and great anxiety obtaining permission for your wife to come to Australia.  You were separated for some time before winning an appeal against the Department of Immigration decision about her refusal to be allowed into the country.

35The prosecution have sought compensation pursuant to s.86 of the Sentencing Act for the total money stolen, $142,560.

36They have also sought restitution pursuant to s.84(1)(c) of the Sentencing Act for money found in your possession, which was cash in your safe, coins from a money box, cash found in your wife's possession and cash in a calico money bag.  It is not said that these moneys are proceeds of crime.

37Applying the relevant legal principles set out in the Sentencing Act, I intend to make the orders, and you have indicated you do not oppose the making of them.  I take into account in your favour when sentencing you, the fact that I have made those orders and your acknowledgement of responsibility in relation to not opposing the order.

38In sentencing you I have had regard to principles of totality and cumulation of sentence.  The quantum of each offence varies considerably, and in my view it is appropriate to look at the total amount stolen by you over the 82 separate occasions, and fix an aggregate sentence for your offending.

39Judge Douglas imposed individual sentences for each charge.  After orders for cumulation, you were sentenced to an effective term of imprisonment of four years with a two year non-parole period.  The individual sentences imposed by Her Honour were, in my view, appropriate.  Your counsel effectively conceded as much.  I do, however, take into account the mitigatory factors urged upon me by Mr Desmond.

40On all 82 charges you will be convicted.  Will you stand up please.

41On all charges you are sentenced to an aggregate term of imprisonment of 44 months imprisonment.  I order that you serve 22 months of that sentence before being eligible for parole.

42I declare that 528 days, excluding today, of the sentence I have just passed has been served by way of pre-sentence detention.

43MR PORCEDDU:  527, I think, Your Honour.  527 excluding today.

44HIS HONOUR:  All right. And what do you say?

45MR DESMOND:  I'd trust Your Honour.

46HIS HONOUR:  You would take the extra day.  Well I - I might have added 528, including today, probably.  That is where I got it wrong. 

47I make the order for compensation and restitution sought by the Crown.

48MR DESMOND:  What does that work out to in months?

49HIS HONOUR:  I do not know.

50MR DESMOND:  When will he get out?

51HIS HONOUR:  When the Parole Board let him out Mr Desmond.

52MR DESMOND:  Thank you.

53HIS HONOUR:  You can divide 527 by 30 as well as I can.  Any other orders required?

54MR DESMOND:  Can I mention Your Honour, there were restraining orders taken out on a client's property.  There was an exception in relation to that money, which is now subject to Your Honour's order.  As I understand it, it is a completely different department in the Crown that deal with restraining orders.  And the process would be, once they are advised at the conclusion of these proceedings, that that order will be withdrawn at some stage in the next few months.  If that doesn't occur, then obviously my client's - I am not sure whether he will come back before Your Honour.

55HIS HONOUR:  No, the confiscation list run that.  I mean there is a confiscation judge, there is a confiscation list and it is a world that I want to stay well out of.

56MR DESMOND:  Well me too.  But I am just putting everybody on notice in case they have forgotten about it, those orders are going to have to be addressed at some stage, because I do not think anyone wants to double dip.  It takes a few months.

57HIS HONOUR:  The Crown can hear you.  You will get the 142,000, whatever it is.  It will go off to wherever it goes.

58MR PORCEDDU:  Yes Your Honour.  I have got some instructions.  The confiscation people have been made aware of what has happened here and there is an exclusion order that has been completed and submitted by the accused man with respect to that property.  So it is going to be for another court for another time.

59HIS HONOUR:  Yes, confiscation orders.

60MR PORCEDDU:  The other thing Your Honour.  With respect to those summary charges that are going to be remitted back to the Magistrates' Court.  Ordinarily, it would just be an order that Your Honour makes.  But I am told there is now a particular form that has to be signed by the judge and I do not have that form but it will be submitted.

61HIS HONOUR:  Send it through, I will sign it and Mr Andelman can go back to the Magistrates' Court.

62MR PORCEDDU:  Thank you Your Honour.

63HIS HONOUR:  No other orders required?

64MR PORCEDDU:  No.

65HIS HONOUR:  I will stand down until ten o'clock.

‑ ‑ ‑