Director of Public Prosecutions v Barber

[2016] VCC 1869

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01138

DIRECTOR OF PUBLIC PROSECUTIONS

v

DALE BARBER

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JUDGE:	HIS HONOUR JUDGE PILGRIM
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	1 December 2016
CASE MAY BE CITED AS:	DPP v Barber
MEDIUM NEUTRAL CITATION:	[2016] VCC 1869

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Dipietrantonio with Mr A. Albert	Office of Public Prosecutions
For the Accused	Mr T. Fitzpatrick	O'Brien Lawyers

HIS HONOUR:

1Mr Barber, you have pleaded guilty to five counts of obtaining a financial advantage by deception and one count of attempting to obtain a financial advantage by deception.

2You have heard the learned prosecutor tell this court that the maximum sentence that can be imposed for obtaining a financial advantage by deception is that of ten years' imprisonment and that the maximum for attempting to obtain a financial advantage by deception is five years.  Ten years for the offence itself, five years for the attempt.

3Mr Barber, for having pleading guilty to those offences I will impose a lesser sentence than I otherwise would have imposed.  In other words, you receive a discounted sentence for having pleaded guilty.

4Mr Barber, you began working at JK Milling on 13 December 1999.  JK Milling Pty Ltd is the processing operations of JK International Pty Ltd and is located in Horsham, Victoria.  The company employs a total of approximately
15 employees.  The state of the art mill incorporates approximately
23,000 metres of on-site storage and the mill uses advanced manufacturing processes to add value to raw matter by cleaning, splitting, colour sorting and retail packing capabilities.

5JK Milling is an accumulation buyer and processor of grain and the company has significant processing capabilities in Brisbane where it operates a specialist plant dedicated to custom cleaning and splitting chickpeas and, as I mentioned earlier, JK Milling Pty Ltd is affiliated with JK International Pty Ltd.

6When a grower wishes to sell grain JK Milling Pty Ltd raise a purchase contract showing all of the relevant details.  Purchase contracts include the metric tonnage of the grain received, the name of the grower, the price paid and the date and delivery period.  When grain is received at JK Milling it is received at the testing stand.  Grain quality is checked to ensure that it makes the required standard.  The truck is weighed, unloaded and tared off.  I do not know why they do not use the word, weighed off.  It is weighed in and it is weighed out.  That is what it means.  The tare or weight of the truck will determine the weight of the grain unloaded.  Obviously you deduct what the weight of the truck is from what the loaded what was when the truck arrived fully loaded.

7Following this process a weight ticket is generated with two copies.  One copy is retained by JK Milling and one copy is given to the truck driver.  Weight tickets include: one, the grower's name; the grade variety; the grain grade; the silo that the grain is going to go to or be stored in; and the truck registration number; the driver's first name; and gross and tare weights are given.

8The procedure of the receival of grain and corresponding payment from
JK Milling is as follows.  The grain is delivered into storage, a contract is raised in the grower's name.  At the end of the week a recipient created tax invoice is raised.  Again, those deliveries and contracts are in the name of the grower.  Once this is completed the information is sent to head office in Brisbane.  When payment is due the bank account details are cross-referenced against those of the grower and then paid into the grower's bank accounts.  This is reliant on the information stored in the computer system and, obviously, correctly stored.

9You, Mr Barber, were employed at the Horsham branch of JK Milling Pty Ltd at their site in Golf Course Road, Horsham.  You were initially employed as a maintenance manager in approximately 1999 or 2000.  You then began to work in quality assurance in early 2000, checking incoming and outgoing grain.  Your duties included entering weight tickets, testing grain and allocating the silo into which the grain would be stored.  Then you became a grain merchant in approximately 2010 when your duties included buying grain from famers for JK Milling, the sale of stockfeed products from the mill and selling substandard product away from the mill.

10I digress just for a moment.  Mr Saunders explained yesterday that when you became a grain merchant you then went onto a salary.  That salary apparently reflected what you earned previously.  The shortfall between the two status being made up by, when first employed you were entitled to overtime, after you got that appointment no longer were you getting paid overtime but the salaries at the end of the day, generally speaking, remained about equal.  I suppose the benefit was there was no further overtime available to you despite the fact you may have worked for longer hours.

11Mr Barber, a fellow employee at the mill noticed discrepancies in activities at the mill in that there was a gross weight ticket entered but, according to that employee, no truck had been seen to enter the premises or to deliver grain on that day.  The ticket that had been generated referred to lentils.  The employee raised his concerns with his supervisors.  The general manager of the mill then conducted an investigation into the delivery of that grain and the production of that gross weight ticket.

12Mr Barber, the general manager questioned you about the ticket.  On the initial inquiry you told him that the truck had come in already on that day.  The general manager then made further enquiries and investigations within the mill and concluded that apart from the delivery of chickpeas no other deliveries had been made on that day.  The manager again questioned you about the delivery of lentils when you then admitted that there had not been a delivery.  Those are the facts touching upon Count 6 on the indictment, that is the attempt to obtain a financial advantage by deception.

13You were instantly dismissed from your employment at that mill and then, not surprisingly, an audit was conducted into the business of JK Milling Pty Ltd.  This audit identified that you had arranged the bank account numbers to be altered in the JK Milling Pty Ltd business systems.  You had arranged bank account numbers to be altered by either a verbal or written request to the administration manager or, alternatively, by an email to head office in Brisbane.  Bank account numbers were changed, your personal NAB bank accounts were changed to your personal NAB bank accounts to allow payment to be fraudulently received by you.

14On 27 occasions between 11 May 2011 and 17 August 2015 you dishonestly obtained for yourself a financial advantage by fraudulently receiving funds from JK Milling Pty Ltd.  On each occasion you purported that the delivery of grain to JK Milling Pty Ltd had in fact occurred by creating false weight tickets.  On occasions the particulars on the false weight tickets included fictitious or incorrect registration numbers.

15On each occasion JK Milling Pty Ltd was of the belief that funds were being paid for grain received and that payments were transferred to the intended and named grower.  The consequence of bank account numbers being altered to your personal NAB accounts and the phantom deliveries of grain resulted in you fraudulently receiving a total of $357,728.65.  That is reflected in counts 1 to 5.  Those counts are what is called by the court system, rolled up counts.  I will say a little bit about that in a moment.

16This offending occurred over a four year, three month period, generally speaking, from 2011 to 2015 and, as I have just said, five rolled up counts are now seen on the indictment and there is one count of attempt to obtain a financial advantage by deception, being the sixth count.

17I quote from a case, it does not relate to you, but it explains, so that you understand and the record shows, what rolled up counts mean.  I am going to read directly from that case, I am not reading about you or your circumstances, I am reading directly from another case where rolled up counts occurred.  It is the case of R v Jarrod Heath Jones [2004] VSCA at 68.  Among other things, Charles J in the Court of Appeal said this.  This is the judge speaking:

"I do not accept the submissions that in sentencing on a rolled up count the discretion is to be exercised in the same way as when a judge is sentencing a representative count.  It is, of course, correct that when sentencing on a representative offence the judge is not entitled to impose sentences in respect of other crimes but in my view a rolled up count is entirely different from a representative count.  In Mr Silbert's written submission" -

18Mr Silbert was the prosecutor -

"In Mr Silbert's written submissions it was submitted, I think correctly, that rolled up counts are a collection of counts bundled together into a single count, a procedure which can only occur by agreement with the defence and only for the purposes of a plea of guilty.  If a rolled up count were not included by agreement with the defence the court would be vitiated by duplicity" -

19That means there will be duplication of counts if you are not careful in the way they are separated, to put it simply.  "Mr Silbert" - that is the prosecutor:

"Argued that reasons or public policy dictate the use of rolled up counts on a plea of guilty is to avoid burdening the indictment" -

20He used the word, presentment.  It is now called indictment -

"with multiple counts".

21What is happening there is if these counts were not rolled up there would be 28 counts on this indictment, 27 for the offences per se and the 28th being the attempted one.  That is what that is all about.  I will just repeat that so that it reads properly:

"Mr Silbert argued that reasons of public policy dictate the use of rolled up counts on a plea of guilty, in other words, burdening the indictment with multiple counts.  The practice simplifies the task for the sentencing judge and works to the advantage of the prisoner.  In the present case" -

22That is Heath Jones' case -

"for example, the filed over indictment contained Count 28, rolling up 24 discrete offences of theft which had appeared in separate counts on the original indictment".

23I am using the word, "indictment", to substitute the word, "presentment".

24The use of rolled up counts operates considerably to the advantage of an accused who intends to plead guilty, for in this case on the original indictment there were 24 counts of theft, for each of which the maximum sentence was ten years, providing a theoretical maximum of 240 years, that is 24 by 10, the same here, 270 years, 10 by 27, 270 years.  The compression of these counts into a single count of theft not only considerably eased the task of the sentencing judge but maybe thought by an appellant to give him a considerable benefit in the term.  That is an explanation of what it means to have a rolled up count.  I hope you understand that.

25Mr Barber, I hope I have got these ages right because since the prosecutor filed the statement of offences there have been a number of birthdays including your own, which was only a day or two ago.  I hope that I have got them correct.
Mr Barber, you are now age 47, having been born on 25 November 1969.  You have two older brothers who are twins and one younger brother.  You reported to the psychiatrist, Dr Glowinski, that you were raised on a farm some
25 kilometres from Horsham.  You had a good and happy home life, your parents were hard working and you enjoyed working on the farm with your family.  You attended primary school in Dimboola before then moving to Dimboola High School between the years 7 to 9.  You then went to Horsham Technical College for years 10 and 11.

26During your adolescent years you played tennis then moved on to clay pigeon shooting.  You also attended the gymnasium regularly until the age of 29 or 30.  After leaving school you spent a year at home on the farm before then taking an apprenticeship as a fitter and turner at the Vulcan factory.  After approximately ten years with Vulcan you then became employed with JK Milling Pty Ltd.  You were married to Victoria.  You have two children from this union, your son, Lachlan, who may now be 18, and your daughter Kristen, who I believe is now 16.

27Your marriage to Veronica is no longer existent, resulting from your perceived unfair treatment from JK Milling and your irresponsible consumption of liquor, together with your mental health problems.  You have seen a psychologist,
Dr Tara Darby, and a psychiatrist, Dr Lewinski.  Dr Darby, the psychologist, reports, and I quote directly from her report.  Her report is dated 9 June 2012.  This is what Dr Darby wrote of you:

"Mr Barber began working at JK Milling on 13 December 199 when he was
30 years old.  He reported that he enjoyed the challenge and responsibilities of work as a quality assurance manager.  However, he was under a lot of pressure to contribute above and beyond his prescribed work hours.  He believes that the general manager of the mill created a culture of unrealistic expectations and that this was continued under the new manager.  Mr Barber explained that he felt immense pressure to prioritise his work above his family and that his long hours had a significant impact on his marital and parenting relationships.
Mr Barber felt that he was unable to take his annual leave entitlements and that when he did arrange to take one week off he was harassed by his employer with work related concerns and was held accountable for issues that arose in his absence.  He was therefore never able to switch off from his work responsibilities".

28Mr Barber, you have recently attended upon Dr Andrew Carroll.  You attended his rooms on 8 November of this year.  Dr Carroll provided a report dated
19 November 2016.  Among other things in this report the associate professor, Dr Carroll  reports, and I quote what he said among other things.  At
paragraph 60, 61, 62 and 63 this is what the professor wrote:

"Following his arrest he was admitted for several days to the Horsham Hospital in September 2015 because of concerns about suicidality anxillytic diazepam was added to his treatment regime for some three months.  Following this he was referred to psychologist, Dr Tara Darby, and initially saw her weekly.  He now sees her every two to four weeks.  He has found her support and therapy to be very useful indeed.  I note she has diagnosed him as having suffered with a major depressive disorder and that it was severe.  In October 2015 he reports a two day voluntary admission to the Ballarat Psychiatric Unit because of suicidal thinking".

29And at paragraph 63 I note that Dr Lewinski, an independent forensic psychiatrist, in August 2016 opined that:

"There appeared to be a history of mood disorder which he had diagnosed as  either an adjustment disorder with depressed mood or a major depressive disorder complicated by alcohol abuse disorder".

30I also have produced to me a report from Dr Lewinski.  In terms of your perceived treatment by your employer, JK Milling Pty Ltd, Dr Lewinski's report is consistent with the psychologist's report, that is Dr Darby.  Obviously your perception, to put it simply, was that your employer treated you very poorly indeed.  Having heard from the two witnesses from JK Milling Pty Ltd, that is
Mr Saunders and Mr Oakley, I accept that your perception was totally incorrect.  Dr Carroll, I believe, explains your confusion and distressed state emanating from your mental health problems, abuse of alcohol and then, of course, the stress that everybody faces when marriage breakdown occurs, all of which are significantly contributing to the perception of unfair treatment by your employer.  This perception, as I have just mentioned, when analysed carefully and closely, is wrong, but understandable when you are so unwell.

31To further contribute to your difficulties, the global financial difficulties that the world encountered significantly increased pressure and frustration to you and all of the other employees at the mill.  I again quote from Dr Carroll.  That psychiatrist said this:

"He has an unremarkable development history and prior to around 2007 had a good record in terms of vocational and interpersonal adjustment.  There is likely family history of depressive disorder coming from your father".

32That is a genetic issue.  That comment, the genetic history comes from me, not from the doctor.  At paragraph 123 the doctor says:

"He gives an account of the development of depressive symptoms from around 2007 in the context of very long work hours and other work stressors.  This appears to be on the background of somewhat obsessional and perfectionist personality whereby his sense of self-worth is contingent on financial security and occupational achievements".

33At paragraph 124 the doctor says:

"For several years from 2007 onwards he worked very long hours and correspondingly received a high income.  He described the presence, however, of significant depressive symptoms in the form of low mood, loss of pleasure and feelings of exhaustion.  He also reports daily intake of very high quantities of alcohol from 2007 to 2011".

34I might add that apparently perhaps yourself or perhaps others, this is a self-distilled whisky that you were apparently consuming and if it had an alcohol content of 45 per cent that is very, very high if compared to a normal beer which is somewhere between 4.6 and 4.9, to a whisky of 45 per cent alcohol content, is frightening.

35At paragraph 125 the doctor goes on to say:

"From 2010 onwards, although his long hours were no longer such a problem, he described intense feelings of guilt and angry resentment secondary to his employer owing large sums of money to farmers in his local community".

36I pause there for a moment.  That reflects the difficulties with the global financial - that was occurring worldwide.  I read on:

"These feelings of guilt appear to have exacerbated his depressive symptoms and he developed intrusive and regular suicidal ideation.  He describes acting on these thoughts by building various devices with which he might kill himself.  He obtained pharmacological and psychological treatment for his depressive problems from 2007 onwards.  It is only over the past year or so that he has found such treatments to actually be effective".

37Pausing there for a moment, I go back in the report of the doctor.  I go back to paragraph 56 where it was said by the doctor - he had examined the various treatments and the various medications that you were taking, and then at paragraph 56 the doctor said this:

"There is thus a history, having traced that history, of trials of various antidepressants but he has been on Duloxetine for five years now and he reports that his current dosage was increased from 120 milligrams to 180 milligrams (that is a high dose) approximately a month ago.  He reports that the extra dosage has absolutely helped and that he feels significantly better in himself".

38I further quote from Dr Carroll's report in terms of your mental health at paragraph 132, where the doctor said this:

"He reports" -

39that is of course you -

"that he is currently in good mental state, stemming from the increase in the antidepressant medication which was a month or so prior to the assessment.

40That is the assessment by Dr Carroll:

"His mental state, however, had" -

41he reports -

"gradually improved since engaging with his current psychologist".

42That is the psychologist, Dr Darby, that I mentioned earlier.  Dr Carroll, at paragraph 133 and some thereafter says this:

"On balance, the most likely diagnosis is major depressive disorder, moderate severity (DSM5296.22), which is currently in remission.  Based on the information available, however, I cannot entirely exclude the possibility that a more appropriate diagnosis may be adjustment disorder with depressed mood (DSM5309.0) secondary to various workplace related stressors.  This would also be in remission".

43At paragraph 134 the doctor says:

"At times given his heavy alcohol use, he has also been diagnosable with an alcohol use disorder of at least moderate severity (DSM5303.90).  This is now in remission".

44As to the future the doctor says:

"His depressive episode appears to have been triggered by work related stress and aggravated by alcohol abuse, occurring on the background of some increased genetic risk for mood disorders inherited from his father and a rather perfectionist obsessional personality, which is also a risk factor for depressive episodes".

45Your counsel, Mr Fitzpatrick, in his plea on your behalf, points to the case of
R v Verdins [2007] VSCA 102 and submits that at least the first four principles of the six that emanate therefrom are applicable to you in the circumstances now before this court. Dr Carroll's report certainly endorses your mental health problems. I assure you that I do take into account that your then - that is from 2011 to 2015, 2016, your then parlous state of health does attract a reduction in culpability in accord with the principles as spelt out in Verdins and I also take into account that the levels of culpability must be adjusted accordingly.

46General deterrence and specific deterrence, which emerge in every criminal trial, while still most important in this sentencing process for these offences, once again some moderation in terms of general deterrence and specific deterrence, specific deterrence particularly, must be taken into account.

47In this case a victim impact statement has been filed by Mr Saunders, the manager, on behalf of JK Milling Pty Ltd.  I quote shortly from that statement where, it is said:

"Our principals lost faith in the employees, insinuating other staff may have been involved, loss of trust between staff, low staff morale has affected productivity and general confidence and caused severe stress and anxiety for all staff members and, of course, their families.  JK Milling has lost reputation within the small community due to direct lies being circulated, clients have lost confidence and are concerned about JK Milling's financial strength as a result of their loss, and clients whose detailed information has been used in connection with this case.  They have concerns regarding any legal ramifications that may flow".

48I pause there for a moment just to make sure you do understand what I infer from that is, I was a magistrate some 20 or 30 years ago, 25 years ago, in the country and in smaller country towns, Horsham's quite a large town, but in smaller country towns the gossip that gets about, usually fuelled by nonsense and only half-baked truths, can cause huge difficulty within communities that are small, and a bigger community such as the city of Melbourne or Sydney or something like that, the same sort of damage doesn't occur as it does in small communities.  That's what Saunders is referring to.

49Mr Barber, I assure you that I have taken into account all that has been said on your behalf by your counsel, Mr Fitzpatrick, in his eloquent plea.  I take into account your plea of guilty.  Such plea is indicative of your remorse.  I further take into account the fact that you cooperated fully with the investigating police officers in that you made full and frank admissions to those police officers.

50Dr Carroll further reports as to your remorse.  This doctor said this:

"He now comes before the court charged with a sustained period of offending in the form of fraud between 2011 and 2015 with his employers being the victim.  He expresses a culmination of intense remorse, shame and bewilderment at his past offending".

51You have since being charged been in full time employment as a farmhand with Bartlett Farms.  Both Chris and Dave Bartlett provide a reference.  I again quote from their reference in part.  It is seen therein:

"During Dale's almost eight month employment with our business he has become an integral member within our team.  Dale has continually demonstrated that he is very hard working, highly reliable and genuine and is always willing to go over and above to help wherever possible.  As not only employers but as friends, we are really proud of Dale's approach and capacity in working to rebuild his life following the embezzlement charges.  His marriage separation and associated family challenges.  Dale has been very open and honest with us about his court hearings and we believe is remorseful for his wrongdoings and strongly believe he is focussed on moving forward".

52That is what the Bartletts said about you.  As a result of their comments I think I can say with some certainty your prospect of rehabilitation has to be excellent.  I would imagine you have the continuing support of your son, Lachlan.  Lachlan has attended every court hearing, both at Horsham and here in Melbourne.  I understand that you are also anxious to reconcile with your daughter, Kristen.  As I have just mentioned, Mr and Mrs Bartlett remains supportive.

53Mr Barber, you have no prior convictions.  You have arranged to recompense the insurance company of over half of what was fraudulently obtained by your nefarious activities.  It would seem that the money embezzled by you has disappeared into general revenue in running and improving your family home and family life.  As was raised by Mr Saunders in the victim impact statement, your criminal activity has had devastating effects, particularly upon the employees at the mill in Horsham and the customers of that company and, of course, the company itself having lost income and reputation.  Your behaviour is to be condemned in the strongest of terms.  Again, I am conscious of the principles of Verdins' case and you are intelligent man and you should have acted in a much different fashion.

54Would you stand up, please?

55On Count 1, Count 2, Count 3, Count 4 and Count 5, on each offence you will be convicted and sentenced to three years' imprisonment. On Count 6 you will be convicted and sentenced to two years' imprisonment. Eighteen months of the sentence imposed on Count 6 is to be served concurrently with the sentence imposed on Count 1. All sentences imposed on Count 1 to Count 5 are to be served concurrently with one another. The total effective sentence thus imposed is three years and six months. Mr Barber is to serve a minimum term of two years and six months before being eligible for parole. Pursuant to s.18 of the Sentencing Act Mr Barber is to be given credit for having served one day of imprisonment.

56Pursuant to s.6AAA of the Sentencing Act, had it not been for a plea of guilty I believe I would have imposed a penalty of at least five years and six months

with a minimum of four years.

57There is no other orders sought, was there?

58MS FOX:  Excuse me, Your Honour.  Beg your pardon, Your Honour.  Thank you, Your Honour, no matters to raise.

59HIS HONOUR:  Yes, thank you.  Remove the prisoner, thank you.

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