Director of Public Prosecutions v Arnall

[2016] VCC 640

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

AT GEELONG
CRIMINAL JURISDICTION

CR 15-00557

DIRECTOR OF PUBLIC PROSECUTIONS

v

RICKY LEE ARNALL

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:	26 February 2016
DATE OF SENTENCE:	2 March 2016
CASE MAY BE CITED AS:	DPP v Arnall
MEDIUM NEUTRAL CITATION:	[2016] VCC 640

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M.A. Mahady	Office of Public Prosecutions
For the Offender	Ms M.  Foley	Victorian Legal Aid

HIS HONOUR: 

1Ricky Arnall, after leaving school in Colac, you worked first at a local transport company in the IT department before moving to the Australian Lamb Company, in August 2005, again, in the IT department.

2You worked at the Australian Lamb Company until 19 December 2013.  From that day you were sacked as your crimes were first detected.  Full auditing by the Australian Lamb Company and the police revealed that as the IT manager, you dishonestly ordered a large number of computer and communication equipment which you took yourself and sold-on.

3Between 16 December 2011 and 20 December 2013, you did the following, as set out in the Crown summary of opening.

4You purchased computers and computer equipment using false or amended purchase orders from Coltek Computes in Colac, in the sum of $112,420.26.

5You did likewise purchasing mobile phones and iPads with false or amended purchase orders from the Telstra shop in Colac for some $10,546.10.

6You purchased household items using false amended purchase orders from the hardware store in Colac in the sum of $865. 

7You purchased household items using false amended purchase orders from Ball & Croft in the sum of $4,704.

8You purchased electrical items, again with false amended purchase orders from Jaycar Electrical shop in Colac for $899. 

9There was electrical items using false amended purchase orders from the Colac Locksmiths for $340.

10Household items from the George Taylor shop in Colac in the sum of $538.60.

11Electrical items from Middendorp Electrical Company in Colac in the sum of $438; and electrical items from Bunnings Warehouse in Geelong, in the sum of $479.

12The total sum of the purchases were $131,232.60.

13From October 2013 to 12 December 2013, you ordered and obtained $18,106.30 worth of computers and like equipment from the Coltek Computer Company or shop in Colac.

14You had got this equipment and sold a lot of it.  The Australian Lamb Company had not paid the bill of $18,106, so the loss is to Coltek. 

15When arrested the police found $5,000 of that property belonging to Coltek at your premises.

16When interviewed by police you made admissions and revealed you had sold iPads and iPhones to one man, a David Beck.  It can be inferred you did not realise anything like the $147,000 as set out in the charges.

17You were charged in August of 2014 with various listings in the magistrates' court.  You finally pleaded guilty, or indicated a plea of guilty on 1 April 2015.  Your plea of guilty is important and will result in a lesser sentence than otherwise would be the case.

18You have accepted responsibility and done all you can with your very limited resources to repay what you ex-employer and Coltek have lost.  I have a repayment schedule that you are adhering to.  You have also attempted to have your superannuation paid to you under clauses relating to emergency need; that has been refused.  It is indicative of your efforts to repay the losses.

19I consider your plea is an expression of your remorse.  There is other solid evidence of remorse, such that I am confident that your remorseful attitude is genuine and, thus, a solid foundation for permanent reform.

20There are other mitigatory matters of importance which I will turn to.  Before doing so, I make it clear what is obvious, that your breach of trust is very significant.  The duration of your offending and the level of your dishonesty, and the amount stolen, established that this is serious offending.  Your counsel, in his well-constructed written and oral plea, conceded as much.

21Why you fell into this dishonesty is a matter that is best explained by your unusual personal circumstances.

22You are now 32, a man, until you started this dishonest activity, who had never in the past broken the law; and have not done so since.

23Your previous good character allows you to seek a more merciful sentence.  Your upbringing was, by and large, unremarkable, your family were hardworking though inexplicably you did not enjoy a good relationship with your mother.

24At 17 you moved to live with your grandparents.  Your schooling was marked by the difficulties of bullying, but you persevered and then moved into the workforce as I explained.

25In 2007 at the age of 23, you formed a relationship and your daughter was born in 2010.  The relationship ended in 2012.  You are now on good or better terms with your ex-partner and have regular contact now with your daughter.

26As to why you committed the offences, I can do no better than turn to your counsel's written submission who wrote the following.

27"On the face of matters, as at 2011/12, it would seem that Mr Arnall was leading a perfectly normal life in the sense that he had stable employment, a decent and caring partner, a young child and good relationship with his own family network.

28"Mr Arnall instructs for many years he had suppressed the realisation of the true nature of his sexual orientation; instead, he was desperate to fit in in a country town and to embrace what society dictated as normal, namely the lifestyle he was trying to lead.

29"At the end of 2011, despite having a lifestyle which he thought should make him happy, he realised he was utterly miserable.

30"At this stage, and for the first time in his life, he finally accepted the truth as to his sexuality and came out.  This was an attempt to finally achieve true happiness, but instead resulted in utter misery.  His family essentially disowned him.

31"His relationship with his partner failed.  She moved away with his child and he went from full-time parenting to part-time parenting.

32"He was forced to move away from his home town because of what he perceived as a stigma attached to him being homosexual.  He developed serious depression and was not medicated.  The offending and his gambling commenced."

33The experienced forensic psychologist, Mr Ball, was of the opinion that your turn to gambling was, as you sought relief from your distress and problems following you announcing your sexual orientation.

34You said you sought out the poker machines for the numbing experience of using them.  You used the money to gain from the sale of the equipment for your gambling.

35Mr Ball was of the opinion that, "Since Mr Arnall has disclosed his sexual preferences and experienced subsequent rejection from his family of origin, he suffered low self-esteem and perceives himself as inadequate or unworthy.  In my view, he has been significantly affected by unresolved grief and loss related to the rejection by his family.  He has suffered through the course of his grief, feelings of sadness, insomnia and appetite disturbance.  He maintains a morbid preoccupation with his own worthlessness and has suffered prolonged and marked functional impairment caused by the self-defeating behaviour, particularly in relation to his stealing, pathological gambling, and significant dysthymic mood."

36Your gambling and the underlying mental health problems were not put forward as causative of your crimes and, thus, of significant mitigatory value.  Rather, it was put that it explains why you became uncharacteristically dishonest and lost in the waste of gambling.  You have woken up to the depth that you sank to, now you have a solid supportive relationship. 

37You work in your partner's family take-away shop.  You are working hard.  A trait that is to your credit.  You are engaged with a local psychological service and this is of importance in regard to your ultimate rehabilitation.

38You have ceased gambling and resumed your previous law-abiding ways.  You appear to be coping better with the estrangement from your family as they struggle to understand your homosexuality.

39The key sentencing considerations are denunciation, deterrence, especially to others, and your rehabilitation.  These sentencing purposes need to be considered in light of recent legislative changes and the Court of Appeal guideline judge in Bolton v The Queen.

40The Court of Appeal in Bolton v The Queen declared that the sentencing landscape in this State has dramatically changed.  The availability of long community corrections orders alone, or in combination with gaol terms, now allows for punishment and rehabilitation to occur simultaneously.

41I am required by the Court of Appeal's decision to recalibrate.  Offending such as this, which may well attracted mid-range sentences, can now be punished by lengthy community corrections order.

42Further by amendment made by our Parliament to the Sentencing Act, I can only take the grave step of ordering imprisonment if it is the only sentence that would satisfy all sentencing purposes.

43The assessment I ordered for a community corrections order unsurprisingly found that you were suitable.  The fundamental issue before me is whether some imprisonment is required in the circumstances of dishonest appropriation of property from an employer and a supplier to the value of $149,000 over two years, in order to gamble by a now remorseful man of previous good character, who went through the difficulty of declaring that he was gay while married with a young child.

44I have given this matter much anxious consideration and, with the guidance of the Court of Appeal in Bolton, I am of the view that in the end the gravity of the offending and the need for denunciation and deterrence would not be so undermined if the punishment was a community corrections order alone without any imprisonment.

45As I said, ordering imprisonment is a grave step not lightly taken.  I can only order imprisonment if there is no other just and appropriate option.  The community corrections order that I will impose will be an onerous and lengthy one.  It will punish and hopefully facilitate ongoing rehabilitation.

46I propose to impose an aggregate term for both offences, though plainly Charge 1 is the most serious.

47Mr Arnall, can you please stand.

48For committing the crimes as set out in Charge 1 and Charge 2 of the indictment you are with conviction placed on a community corrections order which will last for four years.

49In addition to the standard conditions that apply for a community corrections order, you will have to undertake 280 hours of unpaid community work.  You must undergo assessment and treatment for mental health problems, undergo engagement in rehabilitation programs to reduce your risk of re-offending; likely to be gambling type courses that they will ask you to engage in.  Do you understand?

50OFFENDER:  Yes, Your Honour.

51HIS HONOUR:  A document will be shortly produced which will set out all the conditions and if you sign that the matter will be brought to an end.

52Had you pleaded not guilty to these offences and been found guilty of them, you would have been imprisoned.  You would have been imprisoned for two years' and three months' with a minimum term of 18 months.

53There are other orders sought, I take it?

54MS MAHADY:  There are, Your Honour, there's two compensation orders, one to Australian Lamb Colac Pty Ltd in the amount of $131,232.60, and one for Coltek Computers in the amount of $18,106.30.

55HIS HONOUR:  So, Mr Arnall, there will now be formal compensation orders.  I know that you are on a re-payment schedule, but the orders are made by the court saying that you owe them this money.  I will sign those.

56Take a seat while the documents are produced.

57What would be the local community corrections for Mr Arnall; he is Camperdown, is he not?

58MS FOLEY:  It would be Colac, I imagine, Your Honour.

59HIS HONOUR:  Would it be Colac?

60MS FOLEY:  Yes.

61HIS HONOUR:  Just stand if you would not mind, Mr Arnall.

62The community corrections order that you are placed on is four years' and it commences 2 March this year, today, and goes to 1 March 2020.

63These are the conditions that apply to everyone.  You must not commit another offence for which you can be imprisoned during the time the order is enforced.  Just continue as you have, that is, you have resumed a lawful way of living.  If you commit any crime that is punishable by imprisonment, you will have to come back before me and it is very unlikely that it will be the same result.  More likely you will be sentenced to prison.

64You must comply with obligations under the regulations that apply here, that will be a need, I am told to take a photograph of you so they can know who you are, so just do what they require.

65You must report to, and receive visits from, the Office of Corrections, report to the community corrections centre at Colac; that is at the Colac Magistrates' Court, within two clear working days of this order starting, so get to that today or tomorrow, Friday at the latest.

66You must not leave Victoria without first getting permission to do so from the Office of Corrections.  You must tell them within two clear working days of a change of job or your address and you must obey all lawful instructions from them.

67That applies to everyone.  What applies to you is 280 hours of unpaid community work over the four years.  So you must do each and every hour, turn up on time.  I know you work long hours at the moment, you have just got to make adjustments for that.

68You must undergo any mental health assessment and treatment, which may include psychological treatment and the like, just dovetail what you are currently receiving from the psychologists there with what they have got; so tell them all about that, and you must participate in programs and courses that address factors relating to the offending as directed by the regional manager.  So do as they say.  If you sign that, that brings the matter to an end.

69Thank you.  Is there anything further required in this matter?

70MS MAHADY:  No, Your Honour.

71HIS HONOUR:  Mr Arnall can leave the dock, thank you.

72Ms Foley, I have already thanks Mr Payne for his considerable efforts and that to the previous prosecutor, Ms Mahady.  As you can tell from the sentencing remarks I relied upon what he said very significantly.

73MS FOLEY:  Thank you, Your Honour.

74HIS HONOUR:  Mr Arnall, take a seat.  Whatever time you wish to, Ms Foley, just leave the Bar table with Mr Arnall.

75(Offender released.)

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