Director of Public Prosecutions v Apted

[2020] VCC 202

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00984

DIRECTOR OF PUBLIC PROSECUTIONS

v

DIANE APTED

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	28 February 2020
DATE OF SENTENCE:	5 March 2020
CASE MAY BE CITED AS:	DPP v Apted
MEDIUM NEUTRAL CITATION:	[2020] VCC 202

REASONS FOR SENTENCE
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Subject: Criminal law - sentence
Catchwords: Pleaded guilty to 5 rolled up charges of obtaining financial advantage by deception total of $970,803.37.  huge loss to family business - gross breach of trust - offender 57 year old woman – stole to provide for dying partner – Complex Post traumatic Disorder – Major Depressive Disorder -  Gambling Disorder – breast cancer – remorseful – declared bankruptcy prevented potential  civil remedy for victims
Sentence: 4 years imprisonment non parole period of 2 years six months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Raimondo	OPP
For the Accused	Ms K. Farrell	Stary Norton

HER HONOUR: 

1Diane Apted, you have pleaded guilty to five charges of obtaining a financial advantage by deception.  Since 2012 you were employed as office manager for a family business, Precision Shower Screens and Robes, operated by Phillip and James Woolard.  You had wide-ranging responsibility, including paying accounts and wages and reconciliation of monthly accounts. 

2You used a method of payment called batch transfer, a system designed for businesses to expedite the payment of many transactions.  The Precision bank statement would show one large amount going to a single recipient, when in fact it was actually a batch of smaller transfers going to multiple recipients.  This enabled you to make a batch transfer payment to a supplier and enter your own account details for the payment of one or more of the small transactions.  Other methods included hiding a payment made by a customer by deleting the job ticket from the computer and transferring the payment to your own account.

3In 2016 an audit was conducted by an accountant in anticipation of a possible sale of the business.  Two hundred and one suspicious transactions were identified.  You resigned in September 2016 and left the business in October, returning to live in Tasmania, where your family was based.  The police began an investigation, but you were not charged until April 2019 and you were remanded in custody, where you have remained.

4Each charge on the indictment is a rolled-up charge dealing with deceptions you committed in each year from 2012 to 2016 inclusive. 

Charge 1 consists of two transactions in 2012, amounting to $4,442.87.  Charge 2 consists of 34 transactions in 2013, amounting to $289,722.93.  Charge 3 consists of 39 transactions in 2014, amounting to $193,653.45.  Charge 4 consists of 74 transactions in 2015, amounting to $273,058.62.  Charge 5 consists of 52 transactions in 2016, amounting to $209,925.50 .  The detailed particulars are set out in Schedules A to E, annexed to the indictment.  A total of $970,803.37 cents was lost. 

5When interviewed by the police you made full admissions and said you spent the money on gambling, drugs and drinking.  The schedules show that money was often also spent on flights, presumably to Tasmania.  You said it was not hard to hide the transactions from the accountant. 

6Mr Phillip Woolard provided a victim impact statement which he read to the court.  He described the trust placed in you and the horror and sense of betrayal felt by management and staff when your crimes were revealed.  You were helped by the Woolards as kind and flexible employers.  They suffered enormous stress in trying to access their own account records from Bank West, who refused to cooperate until a subpoena was served. 

7The long delay in prosecuting you has hampered the business in seeking any recompense for the losses, and any potential remedy through the civil jurisdiction was prevented by your declaration of bankruptcy during that period of delay.  None of the money was able to be recovered.  Shortly after the crime was detected the business was approached by two possible buyers, but a sale was prevented by the inability to supply accurate financial figures because of the thefts. 

8Mr Woolard noted that it will take years for the business to recover what you stole.  The large amount stolen has deprived him of many opportunities which he might have expected to be able to enjoy after 17 years of hard work building the business.  Such a serious impact on the victims makes your offending even more serious than on its face.  It involved a gross breach of trust and the heartless exploitation of a small family business over four years.

9Indications of your remorse and having accepted responsibility have been conveyed through your counsel and through the report of the psychologist, Ms Lechner, who assessed you in August last year.  You also wrote a letter to the court expressing your remorse and regret at having hurt people. 

10A plea of guilty is often accepted as an indication of remorse in that sense and that will apply to you.  Your plea was entered at a very early stage and you were extremely cooperative with police, making full and frank admissions.  You did not try to minimise what you did.  That assistance to the investigation and the avoidance of a potentially long and complex trial are factors to your credit and mean you are entitled to a discount on your sentence for that plea of guilty.

11A further mitigating factor is the long delay between 2016 and 2019 when you were charged.  The fact that it has been hanging over your head for a long period is to be treated as a mitigating factor even though it has enabled you to spend more time with your family than you otherwise might have.  The delay in completing the investigation has weighed heavily on the victims in prolonging the anguish they have felt in dealing with the effects of your crimes, as Mr Woolard noted in his victim impact statement.  Paradoxically it therefore adds to the seriousness of the offending.

12You are a single woman aged 57 with a 30-year employment background of office work which has always provided you with access to accounts and to cash.  Until this offending, you had no blemish on your character and you were regarded as a trustworthy and competent office manager by the Woolards, who recruited you. 

13You had an unhappy childhood in a home dominated by your father's alcohol abuse and violence.  With your first long-term partner Glen, the father of your two children, you experienced similar alcohol abuse and verbal violence and that relationship ended in 2003.  A few years later you began a relationship with Glen's brother Gregory, with whom you had a very happy relationship until his death. 

14It was just after his diagnosis with leukemia that you began stealing money, which you wanted to use to ensure his last Christmas was a happy one.  After his death in June 2013 your offending increased to support your gambling and drinking.  You resorted to drugs, alcohol and gambling to cope with grief following his death in 2013.  Soon after that you were treated for breast cancer and during that treatment your daughter in Tasmania encountered difficulties with drugs and with caring for her young children, but you were unable to help her. 

15Finally, in 2016, you were able to go to her and, while helping her after the birth of her fourth child, you ceased gambling and drinking.  You explained this in your letter to the court, your chief explanation being that you began stealing money, intending to return it, to provide for your dying partner.  Part of the motivation after your partner's death was to pay for your addictions of gambling and drinking, with your judgment affected by a depressed mood and the addictions themselves.

16You were diagnosed with Complex Post Traumatic Disorder, Major Depressive Disorder, alcohol use disorder and a Gambling Disorder.  You seem to have developed some insight into this and you voluntarily sought treatment for what you recognised as mental health issues and you are now said to be in recovery from that.  You told Ms Lechner that there is no excuse for what you did.

17Your prospects for rehabilitation are to be assessed in the light of the fact that you have no prior convictions and the offending was out of character.  You have abstained from alcohol and gambling and have voluntarily engaged in treatment.  You are remorseful and have gained insight.  You have re-engaged with your family after living interstate for many years and you have a strong bond with your grandchildren.  Your father died recently and you wish to be able to help your mother, who now lives alone. 

18The fact that you maintained your criminal actions for so long may suggest that any confidence placed in your prospects for rehabilitation should be guarded, but the more positive aspects to which I have referred increase those prospects somewhat and I conclude that they are fair. 

19You have remained in custody since your arrest, as I said before, and have not applied for bail, preferring to start, in effect, to serve your time.  Because your family lives in Tasmania, you have had no visits from them.  Your son is not well and was hospitalised last year, but his mental health diagnosis is unclear.  All those matters have an impact on the need for specific deterrence in your case and that need is somewhat reduced; however, the need for general deterrence remains the chief focus in a case such as this.

20Detection of such crime is often difficult and delayed, even though their execution might be easy, as you said it was.  If possible the public, which includes businesses large and small, needs to be protected from blatant theft by persons in positions of trust.  Mr Raimondo for the prosecution referred me to a number of comparable cases with head sentences ranging between about two years and five years.  Ms Farrell, who appeared on your behalf, similarly referred me to cases with sentences within or close to that range.  The circumstances were of course different from case to case, but I have taken them into account as far as possible.

21Would you stand now, please, Ms Apted.

22I sentence you to three years' imprisonment for each of Charges 2, 3, 4 and 5.  I sentence you to two years' imprisonment for Charge 1. 

The sentence for Charge 2 will be the base sentence for purposes of cumulation. 

I order that three months of each of the other sentences be served in cumulation upon the base sentence.  This results in a total effective sentence of four years. 

I order that you serve a minimum period of two years and six months before being eligible for parole.

23In determining these sentences and the order for cumulation I have had regard to the principles of totality and proportionality and that the sentence should not be crushing upon you. 

24If you had pleaded not guilty to these charges I would have sentenced you to five years' imprisonment with a non-parole period of three years.  You have been in custody for 334 days not including today.  I declare that time to be reckoned as already served and I shall note that on the court record. 

25Mr Raimondo, are there any matters that I have neglected or omitted?

26MR RAIMONDO:  No, Your Honour.

27HER HONOUR:  Ms Farrell, was there anything else?

28MS FARRELL:  No, Your Honour.

29HER HONOUR:  Thank you.  Officers, you may take Ms Apted now, thank you.  Thank you.

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