Director of Public Prosecutions v Ashmore

[2014] VCC 1583

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE

CRIMINAL DIVISION

Revised Not Restricted

Suitable for Publication

Case No. CR-14-00927

DIRECTOR OF PUBLIC PROSECUTIONS

v

IAN ASHMORE

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATEOF HEARING:	29 August 2014
DATEOF SENTENCE:	19 September 2014
CASE MAY BE CITEDAS:	Director of Public Prosecutions v Ashmore
MEDIUMNEUTRALCITATION:	[2014] VCC 1583

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords:             Sentence – obtaining a financial advantage by deception (4 counts) Legislation Cited:     Crimes Act 1958, s82(1); Sentencing Act 1991

Cases Cited:            R v Chan (2010) 79 ACSR 189

Sentence:                 Convicted and sentenced to a total effective sentence of three years’ imprisonment with a non-parole period of 18 months.

Section 6AAA declaration: Total effective sentence of 4 years and 6 months imprisonment with a non-parole period of 3 years.

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APPEARANCES:Counsel  Solicitors

For theDPP  Ms J Malobabic              Solicitor for Office of Public Prosecutions

For the Accused  Ms S Locke  Doogue O’Brien George Pty Ltd

COUNTY COURT OF VICTORIA

250 William Street, Melbourne

HIS HONOUR:

1Ian Ashmore, you have pleaded guilty to four counts of obtaining a financial advantage by deception pursuant to s82(1) of the Crimes Act 1958. Each count carries with it a maximum sentence of ten years’ imprisonment.

2The nature of your offending is set out in the detailed Summary of the Prosecution Opening which is exhibit 1 in this matter. No issue is taken with the content of that Summary and it is unnecessary for me to repeat the material contained in that Summary in the course of my sentencing remarks.

3As to the activities carried out by you which gave rise to these charges it is appropriate that I comment that:

(i)The offending the subject of these charges commenced in March 2010 and continued until September 2012. It involved a regular pattern of behaviour in which you, as the managing director of the Australian arm of Paragon Publishing, sought to be reimbursed for expenses incurred or to be incurred by you on behalf of the company when you were not entitled to such reimbursement.

(ii)At all times you occupied a position of trust with your employer such that demands made by you for reimbursement of  sums as significant as

$99,000 were met without question.

(iii)Your offences involved you misusing the position of trust bestowed upon you by your employer to steal from it.

(iv)In the course of the offending you:

§   On occasions fabricated invoices on behalf of a third party in respect of services allegedly supplied for the benefit of your employer by that third party;

§   On other occasions sought the production of false invoices from third

parties with respect to services allegedly provided by them so that you could submit those invoices to your employer.

4I am satisfied that it is appropriate to describe the nature of your offending as involving a course of conduct which was well-planned, systematic and relatively sophisticated. It involved many transactions. It could in no way be described as being spontaneous or involving circumstances in which you did not appreciate the criminality of that behaviour. The total amount of money accessed by you is over $450,000. In making that statement I do not ignore the fact that approximately $100,000 of the funds wrongfully accessed by you were reimbursed by you to Paragon in one way or another.

5Your offences involved the ultimate breach of the position of trust which you occupied as a managing director, which behaviour by you was undertaken merely to allow you to live a lifestyle well beyond your means. In the course of the plea it was put on your behalf that you had lived beyond your means for most of your adult life and that this offending was precipitated by your imminent financial collapse. Whilst I largely accept these statements which, whilst they might explain the reason for your offending, they in no way excuse your choice to finance the very comfortable lifestyle you led by the use of your employer’s money.

6Your personal history is as follows.

7You are forty-nine years of age. At the time of your offending you were aged between forty-four and forty-seven.

8You have no prior criminal history.

9You are the youngest of three siblings, having two older sisters.

10You left school, having completed Year 10, and have worked since that time.

11Despite your limited formal education, you achieved considerable success in

the business world, which you entered, as I said, at a very early age and then advanced, such that by 1996, you were appointed general manager of The Five Mile Press.

12In 2001, you were appointed general manager of Funtastic Limited, a publishing and entertainment company, and in September 2006, you were appointed the managing director of Paragon Publishing, which is the largest illustrated non-fiction publishing company in the world.

13You have been married for twenty-three years. You have two sons. You have always been the primary breadwinner for the family. Your eldest son suffers from ADHD. Your role in the family has been pivotal in assisting him in his development and in dealing with that condition.

14In the course of your plea, your father-in-law gave evidence on your behalf.

He described you, over the twenty odd years in which he has known you, as being a polite, quiet person, good father to your children and a good partner to your wife.

15He described the importance of your role in assisting in the management of the education and development of your eldest son, who was diagnosed at an early age as suffering from ADHD, and of the continuing role you play in the management of your son, who is now seventeen.

16He said that you had always acted as a man of integrity and that you now exhibited great remorse with respect to the conduct the subject of your offending.

17Your father-in-law described the consequences upon your family of these charges which has involved:

(i)Your inevitable loss of employment;

(ii)The stress associated with the charges and the uncertainty with respect

to the sentence which will be imposed with respect to those charges;

(iii)Your home being on the verge of being the subject of a mortgagee auction;

(iv)Your family often having to rely upon support from friends and family for the purpose of achieving such basic activities as stocking your fridge; and

(v)The change in the financial position of your family from one which seemed secure to one in which you have been declared bankrupt and your family is in a parlous financial state.

18The plea submission tendered on your behalf, which is exhibit “A”, sets out in detail your current financial position. You have been declared bankrupt and you  have  significant  debts.  One  aspect  of  your  debt  involves  you  being

$20,000 in arrears in respect of the mortgage payments with respect to your house. I am satisfied, having regard to the content of exhibit “C”, which sets out your obligations under your RAMS home loan, when considered in the context of the evidence given by your father in law as to the financial position of your family that there is little prospect of you being able to avoid selling your house the extent of the mortgage for which approximately equates to its expected sale value.

19Whilst I have briefly summarised the content of the plea submission both with respect to your personal background and your family life and the family hardship set out in your plea submission, in sentencing you, I have taken into account the totality of the content of the written plea submission and the matters put on your behalf in the course of the plea.

20The emotional effect of your offending upon your family is borne out in the letters written to me by each of your children and your wife. I am satisfied that the consequences to which I have referred above weigh heavily upon you. It

must be said however that each of those consequences are the natural and expected outcome of the conduct which you decided to engage in in this instance.

21A number of references have been tendered on your behalf by people who have known you for many years, all of whom describe you as a reliable, genuine and compassionate family man.

22These references and the evidence of your father-in-law satisfy me that you are a person who:

·Has helped his family in the past;

·Has acted honourably towards those who have spoken on your behalf; and

·Who is  very ashamed  of  the  actions and the position  he now finds himself in.

23Mr Paul Damjanovic, the director of a lighting company and one of your referees who is aware of the nature of your offending, has offered to employ you in a role involving sales and the general running of his business.

24That you come before me in your late forties with no prior convictions and that people such as Mr Damjanovic stand by you and are prepared to support your employment satisfies me that your prospects of being rehabilitated should be assessed as being positive.

25In a report dated 3 August 2014, Dr Noel Godfredson, a clinical and forensic psychologist, has assessed you as presenting with extremely high levels of depression and anxiety and questions the way in which you might adjust to a period of imprisonment. He further opined that your condition is such that it does not warrant specific intervention at this stage but that you may benefit from treatment with a clinical psychologist to further explore your anxiety and

depressive symptoms.

26A Victim Impact Statement has been tendered, the authors of which are the global managing director, the global financial controller and the financial and operations director of your former employer, each of whom speak of the damage to the reputation of the company caused by your offending and the latter of whom speaks of the fear for his reputation given that your offending was undertaken within the ambit of his area of management of the company.

27In sentencing you, I must impose a sentence which is just in all the circumstances. I must have regard to the seriousness of your offences, your culpability for the commission of the offences and the effect of your offending. I am required to take into account the need to denounce your behaviour as being totally unacceptable in our community, and to fix a sentence which ensures you are appropriately punished. I must also give appropriate weight to issues of general and specific deterrence and the need to protect the community.  Equally, the sentence which I impose should not be crushing and I must give due weight to the interest of the community which is served by ensuring the rehabilitation of offenders and their reintegration into the community.

28It is my obligation in this instance to make a statement which makes it clear to the community that your criminal behaviour is serious and will not be tolerated.

29It was put on your behalf that the consequences of the imposition of a term of imprisonment which would take you away from your family and deny you the opportunity to take up the employment offer to which I have previously referred, when considered in the context of the importance of your position in supporting each of your children, and particularly the emotional needs of your eldest son, give rise to exceptional circumstances such that these matters should ameliorate the sentence which should be imposed in this instance.

30In the course of his sentencing reasons in R v Chan (2010) VSC 312 Justice T Forrest succinctly summarised the parameters for establishing the existence of special circumstances which would entitle me to consider the probable effect which any sentence I impose in this instance will have on your family. At paragraph 24of his sentencing reasons, His Honour commented that before doing so it is necessary that I am satisfied that the circumstances that impact upon your family are exceptional. His Honour commented in this regard:

“It is to be expected that any term of imprisonment will visit hardship upon a prisoner’s dependants. It is the ‘tragic but inevitable consequence of almost every conviction and penalty recorded in a criminal court’. What must be demonstrated is more than that. There must be cogent evidence of ‘exceptional hardship ...  considerably more severe than normal for a family where the father is imprisoned’.”

31Having considered each of the matters raised in the course of your plea which it was put gave rise to exceptional circumstances and in particular the hardship to which your family will be exposed by any sentence which I impose, I am not satisfied that exceptional circumstances are made out in this instance.

32I am satisfied however that in sentencing you, I should do so taking into account that any prison sentence imposed in this instance will cause you to be unable to assist your family in meeting their needs of your family, and wife particularly those of your eldest son, and in that sense, that imprisonment for you will be more burdensome than for others not in your position.

33You come before me as a forty-nine-year-old man having no prior convictions with an unblemished and well respected reputation before you embarked on this course of conduct in 2010. There is no suggestion that, other than for this offending, you are of good character. Although good character is not as significant a mitigating factor for this type of offending as it is for other types of offences, you are entitled to some benefit for this, particularly in so far as it speaks positively as to your prospects of rehabilitation.

34Further, I am satisfied that your offending has been such that it has occasioned, through your own greed, a very significant loss for you in your reputation as a well-respected and competent company manager and that your conviction for these offences makes it extremely unlikely that you will ever hold a position of the type which had been a part of your working life for the more than ten years and I give appropriate weight to this fact.

35You have pleaded guilty to each of these charges.

36That plea in itself is an indicator of remorse on your part.

37Your plea has saved the expense associated with a committal hearing and a trial and more importantly and is has spared victims of your offending from giving evidence and entitles you to a discount in the sentence which I would have imposed but for that plea.

38Given your history and your remorse about which I am satisfied I am of the opinion that sentencing considerations which might arise in some instances such as the need to –

·Deter you from reoffending; or

·Protect the community from further offending

assume less relevance as sentencing issues in this case than they may be in others.

39The nature of your offending however, involving as it did taking advantage of the trusted position which you held with your employer and abusing that position for personal gain, involves actions which must be denounced by the court on behalf of the community.

40Further, the need to deter others from giving into the temptation of abusing a position of trust in which they have been placed by their employer for their own benefit must in my view assume an important role in your sentencing.

41Others who are minded to abuse a position of trust in order to steal from their employers must be made aware that the courts will denounce their criminal conduct and impose severe penalties for such conduct in appropriate circumstances.

42In sentencing you I give due weight to the fact that:

(i)You have no relevant criminal history;

(ii)That various of the counts involve some accounting by you as to the monies falsely appropriated;

(iii)You co-operated with the police making full admissions;

(iv)You have pleaded guilty at an early stage to these offences;

(v)You have positive prospects of being rehabilitated.

(vi)I am satisfied that you feel true remorse.

43In all the circumstances however the nature of these offences is so serious in my opinion, it is clear that in sentencing you I have no option but to impose a period of imprisonment in this instance

44Having regard to the comments made by Dr Godfredson, when considered in the context of your age and life experience, I am satisfied that in sentencing you, I should give due weight to the fact that a sentence of imprisonment will be likely to weigh very heavily upon you.

45I accept that imprisonment will be a difficult process for you given that you are concerned that in the absence of you being able to support your family financially there is a real uncertainty as to where they will live. Whilst as I have said, I am not satisfied that is this gives rise to special circumstances I do take into account this factor in so far as it impacts upon you and will make your imprisonment more difficult for you.

46Would you please stand.

(i)On Charge 1 – which involves a total amount of $95,838.16 – you are sentenced to a period of imprisonment of 1 year and 6 months;

(ii)On Charge 2 – which involves an amount of $315,275.00 – you are sentenced to a period of imprisonment of 2 years and 6 months;

(iii)On Charge 3 – which involves a total amount of $43,000 – you are sentenced to a period of imprisonment of one year;

(iv)On Charge 4 – which involves a total amount of $4,620.00 – you are sentenced to a period of imprisonment of 3 months.

47I now deal with the question of cumulation.

48In the final analysis, whilst I take into account that your offending involves a pattern of conduct given the number of false representations involved in these charges and the period over which the offending occurred I am of the opinion that your offending is so serious that, whilst having due regard to the principles of totality and proportionality, total concurrency with respect to these sentences would fail to do justice. Taking into account all relevant factors, I consider it is appropriate to order a period of partial cumulation.

49Given that Charge 2 involves the largest sum of money, I fix Charge 2 as the base sentence. I direct that:

·     4 months of the sentence imposed with respect to Charge 1;

·      2 months of the sentence imposed with respect to Charge 3; and

are to be served cumulatively on the sentence imposed with respect to Count 2 and upon each other. Otherwise all the sentences I have imposed are to be served concurrently.

50The total effective sentence which I have fixed for you is three (3) years of

imprisonment.

51I fix a minimum term of 18 months before you become eligible for parole.

52In fixing your minimum sentence I have borne in mind all the matters to which I have referred in the course of my sentence, and in particular:

(i)Your age, and the fact that you face a term of imprisonment for the first time in your life;

(ii)Your absence of any relevant criminal history

(iii)The serious nature of your offending and the duration of it;

(iv)The factors which are personal to you to which I have referred;

(v)That you have good prospects of rehabilitation;

(vi)Your co-operation with the authorities and your remorse;

(vii)The issues of general deterrence which arise in this instance.

53But for your plea of guilty in this instance I would have imposed a total effective sentence of 4 years and 6 months years with a minimum sentence of three years.

54I will make the Order sought under the provisions of s464ZF(2) of the Crimes Act 1958 in this instance.

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