Director of Public Prosecutions v Austerberry

[2023] VCC 1904

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT BENDIGO

CRIMINAL JURISDICTION

CR 23-01275

DIRECTOR OF PUBLIC PROSECUTIONS

v

TRAVIS AUSTERBERRY

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JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Bendigo
DATE OF HEARING:	20 October 2023
DATE OF SENTENCE:	20 October 2023
CASE MAY BE CITED AS:	DPP v Austerberry
MEDIUM NEUTRAL CITATION:	[2023] VCC 1904

REASONS FOR SENTENCE

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Subject:CRIMINAL LAW SENTENCE

Catchwords:              Sentencing – theft – rolled up charge - plea of guilty

Legislation Cited: s6AAA Sentencing Act 1991

Cases Cited:Grossi [2008] VSCA 51, Worboyes v The Queen [2021] VSCA 169

Sentence:                  Imprisonment, total effective sentence 3 years, 2-year non-parole period.  Compensation order, $12,500.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Thomas	Ms  K. Parham, Ms I. Abdulnour Office of Public Prosecutions
For the Accused	Mr J. Brancato	Mr J. Brancato Gallant Law

HIS HONOUR: 

1Travis Garth Austerberry, you have pleaded guilty to one charge of theft.  That charge is a rolled-up charge covering 271 separate thefts committed by you between April 2020 and November 2022.  In total you stole $479,695; however, due to some repayments you made covertly before your detection the loss to your victim was $365,320.  I now understand that there was, fortunately for the golf club, insurance that covered most of that sum.

2The facts of your offending are set out in Exhibit A, the prosecution plea opening.  I was informed by your counsel that I could treat that document as an agreed statement of fact.  I incorporate it into these reasons for sentence and I sentence you on the basis of the facts set out therein. 

3Very briefly stated, you were a member of the Belvoir Park Gold Club, who I will now call BPGC, at Ravenswood.  You were a qualified certified practising accountant employed in Bendigo.  You became a committee member of the BPGC in 2017 and the club treasurer in 2018.  As such you had access to the club bank account subject to the approval of a secondary approver.  You obtained the login details of that secondary approver and used those details to falsely indicate secondary approval for your individual thefts.

4You disguised the 271 withdrawals as tax-related payments and paid each into your personal bank account.  You subsequently used the funds obtained to bet with various betting agencies.  You bet in significant and increasing quantities over the period of your offending.  You were aware of the wrongfulness of your conduct and sought to repay the stolen funds to the club by organising false tax returns to the club; some $114,500 was replaced in the club bank account by this method.

5A query about a purported $27,000 tax payment by the club led to an audit of the BPGC financial system and your thefts were uncovered.  You were arrested in April 2023 and made full and frank admissions to the police when interviewed.  You quit your job before you could be terminated and moved in with your mother to live.  You pleaded guilty to this offence at an early stage. 

6Mr John Parsons from the BPGC completed a victim impact statement on his own behalf and on behalf of the club.  He and the club are shaken by your enormous breach of trust and your long-term continued deception.  The club has managed to survive your crimes but has postponed planned capital expenditure and I take the victim impact statement into account in sentencing you.

7Turning to your personal circumstances, you are now 40 years of age, being born in Melbourne in June 1983.  You grew up in Bendigo.  Your history is set out in Exhibit 2, the report of psychologist Laura Fleming and in the submissions of your counsel, Exhibit 1.  You are the third of four children.  You have an older brother who is present in court, or was this morning, supported you, and you have two sisters.

8Your parents separated when you were 13 years of age, but you and your siblings moved to live with your mother.  You have developed a better relationship with your father in your later years.  Both your parents are at court to support you today.

9You completed school at St Theresa's in Bendigo and then went to secondary college in Bendigo.  You completed a Bachelor IT and Business at La Trobe University in Bendigo and maintain part-time employment in retail and grocery stores.  Shortly after the conclusion of your studies in 2004 you moved to Melbourne in 2005 and gained work with a private accounting firm. You worked there for two and a half years and then after a further period of employment returned to Bendigo as a result of financial difficulties you apparently encountered from your protracted gambling.

10After you moved back to Bendigo you obtained employment in Bendigo and you remained there until you resigned after you were arrested.  You have been unemployed since, waiting to see what happens to you here, although you have been doing voluntary work for the Bendigo and District Ostomy Association and Exhibit 5 is a reference from that organisation.

11You have, as I mentioned, a long-standing gambling addiction and Ms Fleming diagnosed you as having a gambling disorder.  You gambled on the horses when you were 16, mainly socially and for fun, but by the age of 18 you started to bet more as you gained income working and receiving funds.  Like all gamblers, you started chasing your losses and struggled to pay your credit card bills.

12In 2005 you were the victim of a violent assault that saw you badly injured and you decided to leave Bendigo and move to Melbourne, again apparently having difficulty obtaining work, and gambling whilst you were at home.  When you found work as an accountant your income increased significantly and the more you earned the more you gambled.  You started online gambling in 2008 and although you tried to stop on occasion you apparently were addicted to the rush of winning and thinking of that next big win.

13You were offered many incentives, which made it more difficult for you to stop gambling, such as tickets to sporting events and box tickets at those events.  By the time you were offending in 2022 your addiction was its worst.  You were gambling on multiple horse races and putting as many bets on as you could.

14You have had a number of personal relationships, the most significant of which was with Sophie McCartney, which lasted over seven years.  You have two sons, now aged nine and six.  That relationship apparently ended two years ago because of your gambling issues.  Ms McCartney is supportive of you, providing a reference, Exhibit 6, where she describes you as a good father to the children.

15You have no prior convictions or subsequent criminal record and fall to be sentenced as a man of otherwise good character.  That good character, however, has less weight in offences such as yours.  It was your good character that enabled you to commit these offences. 

16Since your arrest you removed yourself from all access to gambling applications.  You have sought treatment with a gambling counsellor and you have spoken to a psychiatrist and a psychologist.  Apparently your gambling disorder is currently in remission.  You suffer from anxiety and depression because of your forensic position and you are medicated for those conditions.

17You enjoy the ongoing support of your family and you hope to return to work in the future.  If you maintain your gambling abstinence your prospects of rehabilitation appear to be good. 

18Your gambling problems provide an explanation as to why you offended but do not mitigate that offending.  Although your counsel initially sought to rely on the principle of a case called Verdins in your case, he abandoned that submission when confronted with the Court of Appeal decision in Grossi [2008] VSCA 51[1].  At paragraph 51 of that decision, Redlich J, with whom the other members of the court agreed, stated: 

'There have been numerous clear and emphatic statements by this and other intermediate courts of appeal that the occasions on which it would be appropriate to treat a gambling addiction as a mitigating factor will be uncommon.  In R v Petrovic Charles JA described it as "a rare case indeed where an offender can properly call for mitigation of penalty on the ground that it was committed to feed a gambling addiction" while Tadgell JA described it as "exceptional."  Similar views were expressed by Winneke P in R v Pascoe ... In some cases, the addiction has rather been viewed as avoiding what otherwise would have been an aggravating motive such as pure greed or a desire to fund some other criminal activity'.

[1] Grossi [2008] VSCA 51

19I do treat your gambling addiction in the way indicated.  That it is removing an aggravating feature and providing an explanation as to why you offended.

20Your offending was serious.  You stole a very large sum of money.  It was protracted and repetitive.  It only came to an end when you were detected.  You acted in gross breach of the trust placed in you by the club and its members.  Principles of general deterrence, just punishment and denunciation of your conduct are the significant sentencing considerations in your case.

21I take it into account your favour your plea of guilty.  You have spared the community the time and cost of a criminal trial.  Your plea also evidences your remorse for your offending.  You are entitled to a reduction of sentence to reflect your plea of guilty.  The value of that plea is increased because of the effect that COVID-19 has had upon our criminal justice system.  Although the court has now recovered from the pandemic, your plea was entered when we were still struggling with the backlog of trials and the principles in Worboyes[2], in my view, have application to you.

[2]Worboyes v The Queen [2021] VSCA 169

22I take into account your cooperation with the police and the admissions you made in the record of interview.  I also take into account the remorse that you have demonstrated for your offending.  The references provided attest to that remorse.

23I acknowledge your prior good character, although, as I said, that has less weight in fraud cases.  It is relevant to what I find are your good prospects of rehabilitation.  Your lack of convictions, and family support, support that finding.  I take into account your stated desire to make restitution as a further indication of your good prospects of rehabilitation.

24Your counsel properly conceded that imprisonment is the only option available to the court in your case because of the factors to which I have referred.  I have had regard to the cases provided and discussed on your plea in taking current sentencing practices into account in your case.  Would you stand up, please.

25On the one charge of theft, you are convicted and you are sentenced to be imprisoned for three years. I order that you serve two years of that sentence before being eligible for parole. I make the restitution order sought by the prosecution in relation to the golf club of $12,500 and I indicate pursuant to s6AAA of the Sentencing Act[3] that but for your pleas of guilty I would have imposed an effective term of imprisonment of five years with a non-parole period of three.

[3] Sentencing Act 1991

26Are there any other orders required?

27MS THOMAS:  No, Your Honour.

28MR BRANCATO:  As Your Honour pleases.

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