Director of Public Prosecutions v Brettell

[2017] VCC 1785

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-17-01437

DIRECTOR OF PUBLIC PROSECUTIONS

v

PETER BRETTELL

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	21 November 2017
DATE OF SENTENCE:	27 November 2017
CASE MAY BE CITED AS:	DPP v Brettell
MEDIUM NEUTRAL CITATION:	[2017] VCC 1785

REASONS FOR SENTENCE

Subject:  Sentencing; plea of guilty

Catchwords:             Obtain financial advantage by deception x 2; Fraud on employer; no prior or subsequent offending; whether hardship on family member exceptional; long delay since offending discovered

Legislation Cited:     Sentencing Act 1991 (Vic)

Cases Cited:Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342

Sentence:CCO 3 years, 350 hours unpaid community work

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J. Henderson	Office of Public Prosecutions
For the Accused	Mr M. Tovey QC	Grigor Lawyers

HER HONOUR:

1       Peter Brettell, you have pleaded guilty to two charges of obtaining financial advantage by deception.  The maximum penalty for each such offences is 10 years' imprisonment which I must take into account as a reflection of the comparative seriousness with which this offence is objectively regarded by parliament on behalf of the community.

2       These charges arise from your conduct during your employment as sports coaching manager at Camp Australia Pty Ltd.  That company provided sports coaches to a number of schools.  Your role included recruiting and inducting suitable people to be employed by Camp Australia as sports coaches for the client schools, and allocating and coordinating them, including finding replacements when some could not attend, and I am told that was often at the last minute.  Your role was also to coordinate the paperwork for payment of those coaches.  They were generally paid by Camp Australia on a fortnightly basis into their bank accounts upon the submission of paper timesheets, whether they were full-time or casual employees.

3       Your employment commenced in August 2005.  A year later you first created false paperwork and directed payments through it into bank accounts controlled by you.  In August 2006 you created a fictional employee sports coach, entered his name into the payroll system, attached a bank account number for him which was in fact an account connected with your ex-wife's business, accessible to you.  You submitted a paper timesheet for this fictional person and sent it to payroll for processing and some days later Camp Australia paid money into the bank account based on that paperwork.

4       Over the following four and a half years, you submitted 106 paper timesheets for that fictional coach, and your employer paid a total of $87,022 into the bank account that you had put forward.  In May 2007, that is some eight or nine months later, after you had first started this process, you created a second fictional employee sports coach and similarly entered his name into the payroll system and attached a bank account number belonging to you.  It was in fact the same bank account being used by you for your legitimate salary.  Again you created timesheets for that fictional coach, sent them to payroll over a period of time, and amounts accordingly were paid into your bank account.  Between May 2007 and June 2011, you submitted 99 timesheets for that second fictional employee, and your employer paid a total of over $77,000 into the bank account.  When you employer moved from a paper based payroll system to an electronic one in July 2011, there were further payments arranged for the two fictional coaches based on six electronic timesheets for each of the.

5       The total amount obtained from Camp Australia in respect of all of the timesheets submitted for those two fictional employees was $169,096.  These circumstances are the basis of Charge 1.

6       Further, there were some payments made directly by Caulfield Grammar School in respect of coaches sourced through you on behalf of Camp Australia.  In May 2008 you drew up a contract of employment for that school in the name of a former employee, provided the school with bank account details of yours, purporting that they belonged to the person to be paid under that contract of employment, and between May and August 2008, four timesheets were submitted in respect of that person and accordingly amounts paid totalling just over $2,000 into your bank accounts.

7       In October 2010 you drew up a contract of employment for Caulfield Grammar School in the names of the two fictional employees you had created for Camp Australia's records, and you provided bank account numbers to Caulfield Grammar School purporting that they belonged to these fictional employees.  Between November 2010 and December 2010 four timesheets for each were submitted, leading to payments of $3,564 into your bank accounts. 

8       In January 2011 you drew up two contracts of employment for Caulfield Grammar School in the name of former employees, provided your bank account details, purporting that they belonged to those former employees, and between March 2011 and March 2012, 15 timesheets were submitted for each of them and a total paid of $17,633 into your bank accounts. 

9       The total amount obtained in this manner from Caulfield Grammar School was $23,316.  These circumstances are the basis of Charge 2.

10      In late February 2012, Camp Australia's chief financial officer became aware that money was being misappropriated, and after an interview with you in which you admitted this offending, your employment was terminated without notice, on 7 March 2012. 

11      On 1 December 2015 you presented yourself at Prahran Police Station and were arrested and interviewed at some length, during which recorded interview you made full admissions to the offending.  Your explanation was that you devised these arrangements to cover the situation that a number of coaching staff wanted to be paid in cash, including a number who were from overseas and whose visas did not permit them continuing to work in Australia.  You said that you would pay sports coaches out of your own pocket in these circumstances, and seek recoupment by way of the fraudulent payment systems you had set up.  You conceded that some of the total obtained had been retained by you, in that it was not for cash payments to coaching staff but to cover financial indebtedness of yours, and you estimated that the amount that was kept directly by you was in the vicinity of $20,000 to $25,000.

12      Due to your frank admissions, the prosecution did not undertake forensic analysis of the payments, so apart from your estimate to police during that interview, there is no evidence as to exactly how much of the money obtained by these deceptions was for your direct benefit.  Therefore, I am not able to make a finding of fact as to the amount by which you directly benefited.  To find that it was more than the amount you estimated I would need to be satisfied of that beyond reasonable doubt, and without other evidence I could not be.  However, notwithstanding that you were cooperative with police, I am also not satisfied on the balance of probabilities that the amount was confined to at most $25,000 as I take that as an estimate made some years earlier - you said it was the amount you believed after you had spoken with the Camp Australia personnel, but you seem to have done it on a rough calculation rather than a direct check of how much was in fact paid out in cash to these coaches.

13      I accept that you did not directly benefit from all of the payments, and that at least some of these amounts were indeed obtained to reimburse you for or enable cash payments to be made to coaching staff.  However, not only was that not a legal excuse, it reflects a willingness by you to facilitate what you must have known were improper arrangements to enable other people to bypass either taxation or immigration requirements on them.  I do not make any formal finding against you in respect of that facilitation, but it is clear that you did not think you could reveal them or those circumstances and obtain direct cash payment from the employer, and I do not regard it as an excuse for setting up arrangements to deceive your employer, or indeed Caulfield Grammar School in the second instance. 

14      I am told that the logistics of your employment role often placed considerable pressure on you.  There is a letter from a person who was a colleague of yours at Camp Australia, which apart from providing a strong character reference for you, confirms that he was aware that you were in a high pressured environment, frequently needing to make sure you had coaches available at short notice, with such coaching staff often unreliable and not showing up for shifts.  He was also aware of pressure to pay a number of the coaches immediately and in cash rather than through their bank accounts, especially those who were visiting as backpackers from overseas, and he was aware of that happening at the school at which he subsequently was employed.

15      I must assess the seriousness of your offending from both an objective and subjective point of view.  The offence of obtaining financial advantage by deception can cover a wide variety of circumstances such as from dishonest use on a single occasion on spontaneous decision of a credit card for a modest amount, to complex arrangements to obtain very large sums of money. 

16      In your case, the deceptions extended over more than four years, involved creating false identities and setting up further false employment arrangements, putting forward false timesheets on some hundreds of occasions, and the total amount of money obtained in this way was some $169,000 from your employer Camp Australia, and a further $23,000 from Caulfield Grammar School. The fact that it was your employer, by which I mean Camp Australia, that was the subject of most of the deception, makes it a breach of trust.  This was misuse by you of the information and access to its financial arrangements that was bestowed on you as an employee, and amounts to a breach of trust.  As so often in circumstances of thefts or deceptions from an employer, it is the trust that the employer has given that has been abused, and enabled the offending to occur.  On the other hand while you used your knowledge of the employer’s payment systems to achieve the deceptions, it was not a sophisticated arrangement, and was easily traceable to you, and indeed the account into which your own salary was paid was one of the accounts into which payments were made.

17      I accept that you were subject to various personal stresses at the time, from pressure of the job, to serious financial problems from the failure of your wife's business, and also marital breakdown including feelings of personal betrayal.  I also accept that what you gained was not to feed an extremely extravagant lifestyle nor any addiction from gambling on any substance abuse, but was money used to pay for the expenses of your family and the family's debts.

18      I assess your overall offending as in the medium range for offences of this type, which having regard to the maximum penalty puts it at a serious but by no means the highest possible level for obtaining property by deception. 

19      General deterrence, that is the sentencing principle which requires that the sentence send a message to others tempted to commit such offending that it will attract serious punishment, must be an important sentencing factor in this case.

20      I turn now to your personal circumstances.  You are now aged 50.  Until this offending you had lived a constructive and responsible life.  You were raised in a stable, achieving family, and yourself completed university qualifications in sports management, physical education and a Bachelor of Education all in Canberra.  You worked for approximately eight years as a phys ed teacher during which time you married and your first two children were born.  In 1998 you moved with your family to Melbourne where you started working for a sports management company and subsequently set up your own business involving public relations services for sporting events.  Your third child was born in 2001 and by then it seems there was some financial strain and the family home was sold. 

21      I am told that your wife suffered some psychological problems after each of your children's births, and after the third as a distraction from the domestic environment, she set up a homewares and fashion shop with your help and support, and for that business you were a guarantor.  Unfortunately it was apparently never successful, but an expansion into a second premises increased financial drains.  As your family financial situation worsened, you decided to take an employed position for more reliable income, and that is when you obtained employment with Camp Australia commencing in August 2005.

22      As well as financial pressures, during 2005 your marriage was under strain and with three young children to whom you were devoted, you were trying to disguise this from them.  However, in early 2006 it became apparent that your wife was having a relationship with another man who it emerged was your brother-in-law whom you had regarded as a good friend, and the whole situation was clearly met by you with a sense of personal betrayal.  You continued to live in the family home as you could not afford to separate, but as 2006 progressed the shops had to close with large losses.  I note it is in August 2006 that your offending commenced.

23      In 2008 you entered a bankruptcy agreement to pay off creditors albeit at a reduced rate.  In that year you were also divorced.  Your financial position was so poor that you moved to live with your parents for about two years.  That presumably was a blow to your self-esteem, but you were lucky to have had that option and that support available.  You obtained new employment.,  I am told that it was in 2012 that you obtained employment with your still current employer, the Teachers Health Fund as business development manager.  I am told that you do not have any direct contact with its financial systems. A reference from a person supervising you there indicates that he is aware of the charges and it is still a supportive reference as to your character generally and your work ethic.

24      You have now remarried, having met your second wife and been with her since about 2012.  You live with her and her two children.  You are still close to your three children, the youngest of whom is still at school. 

25      It was submitted that your role in relation to your now 18 year old daughter is of particular importance in determining your sentence in this case, and in particular that mercy should be exercised because of her condition.  I am told that your daughter developed a serious eating disorder which was diagnosed in 2016, and that at times her condition has been very serious indeed, requiring hospitalisation, which unfortunately was necessary again on a relapse some months ago.  A letter from her doctor at the Royal Children's Hospital confirms her condition. There is also an extract from a TV item in which she and your family were featured to show the success of her treatment.  Both the doctor's letter and that item indicate that the treatment that has been undergone has involved heavy family involvement, including in particular and ideally, from both parents, and that you and her mother have been present at critical meal times when required.  I am told and accept that you have been deeply concerned throughout your daughter's illness, and very actively involved in her treatment, and her mother and stepfather have written to confirm this and say that the whole family would suffer if you were imprisoned and unable to continue this active role.  Your daughter has apparently not been told that you are facing court for these charges, and I appreciate that that decision has been taken to spare her the anxiety.

26      It was submitted on your behalf that this situation brings your situation within the principles applicable to cases where a discretionary exercise of mercy by a sentencing court is enlivened, where the court finds that to imprison an offender would impose exceptional hardship on third parties, often family members, such that the sentence should allow the offender to remain in the community or otherwise minimise time in prison.

27      There are a number of cases, and a most recent one was drawn to my attention, which discuss the principles involved in this regard.  The cases make clear that it can only be in exceptional cases that this principle will be applied, because it is an unfortunate fact that the imprisonment of offenders often results in very considerable hardship to their families. 

28      In your case I accept that you are particularly anxious about your daughter and about the extra anxiety to her if you are not able to be present as part of her treatment.  She is 18 years old and has just completed VCE, albeit under stress and suffering a relapse some months ago.  Fortunately she has a mother and stepfather actively involved in her daily treatment, as well as supportive grandparents, a 21 year old brother and a younger brother, and also an uncle, your brother, who with your father was present in court during the plea hearing, and I see your brother here again today.  All of this is not to underestimate the concern about your daughter's health nor your commitment to her treatment or anxiety about her.  I am not convinced by your counsel's submission that to imprison you would be likely to increase the risk of her health seriously deteriorating but I do not underestimate that her health is in a volatile situation and various stresses can worsen it. 

29      In my view the readily available support from so many other caring and supportive family members, makes this case far from the type of situation where dire hardship to a family member warrants a decision to refrain from imposing what should otherwise be a sentence of imprisonment.  I do accept, and take into account as mitigatory, that worry about your daughter's health, and indeed about the impact of your imprisonment on your family generally, would weigh heavily on you during any period of imprisonment, and that would make imprisonment more onerous for you. 

30      You come before the court with no prior offences, and references from both family members and others as to your otherwise good character, strong commitment to your family, your children, strong work ethic, and your involvement in community organisations including sporting activities for children's schools are all impressive.  I accept that this offending has been your only lapse, and you deserve credit for your otherwise good character and contributions to the community.

31      However, in circumstances where it is the offender's believed good character that has placed him or her in the position of trust from which he or she was able to commit the fraud, that otherwise good character is of less significance or to be given less weight than it might be in some other types of cases.  In your case, it lasted for some 4½ years during which you were believed to be of good character. 

32      There are some other mitigating circumstances that I take into account.  Despite being confronted with your offending and apparently admitting it to Camp Australia in March 2012, I infer that the matter was not reported to police for more than three and a half years after that, indeed until shortly before police interviewed you in December 2015.  It is not known why there was such a delay, but I certainly do not infer that it was through any fault of yours.  When interviewed you were cooperative with police and made full admissions in your recorded interview.  However it was a further year before you were charged and has been almost a further year, some ten months at least, between your being charged and this matter coming before me as a plea hearing last week.  You indicated a plea of guilty soon after committal mention which I take to be an early opportunity and in keeping with your other cooperation in relation to admission of this offending. 

33      I take these circumstances into consideration in two important mitigatory ways.  First, you are entitled to considerable leniency for your cooperation and early plea of guilty, as they have had considerable utilitarian value in saving the time and cost of further investigation and legal proceedings.  They also reflect a willingness by you to facilitate the course of justice and by you to accept responsibility for your offending.  They, together with the various statements made by you to police, and through an interview with a psychologist, I also accept as reflecting genuine remorse on your part.  I shall tell you after I have imposed sentence what it would have been had you not pleaded guilty.

34      Secondly, there has been considerable delay since your offending came to light in bringing you before a court for sentencing.  It is now more than five and a half years since your offending was discovered by your then employer.  Your counsel described this as an “unconscionable” delay, but because I do not know the reasons for it, I am not putting that description on it.  There is no actual evidence of you anticipating prosecution after you were dismissed, but I do take into account that you must have it at the back of your mind as a possibility for the intervening years until you were questioned by police, and that would have added to general anxiety that you were suffering through other causes.  I also take into account that you had a further year to wait between the police interview and being charged, which must have considerably added to your stress.  Indeed a period of depressive reaction is referred to by both your treating psychiatrist and Mr Newton who examined you for a psychological report, as being a cause of a precipitation of further depressive reaction under the stress of awaiting what was to occur on these charges.

35      

I also take into account that in the intervening years you managed to

re-establish yourself in employment and a new relationship, and have continued with an otherwise responsible lifestyle.  There is nothing to indicate that you have engaged in any further offending, or any risk-taking activities or habits, and nothing to indicate that you are likely to take those up despite being under the extra stress of wondering what would occur as a result of these charges. All of this indicates that you have used the intervening period responsibly, and it is also consistent with your offending being isolated to those particular circumstances and not being likely to be repeated. 

36      Having the uncertainty lasting for so many years of whether you would be prosecuted, and then when you knew you would be, what the result would be, and also showing that in the meantime you could re-establish yourself and behave responsibly are both matters that entitle you to some leniency and I have taken them into account. 

37      Also in your favour is that you have made substantial, although by no means complete, repayment of the amounts dishonestly obtained.  You apparently borrowed from your mother-in-law (and by that I am assuming it is the mother of your former wife) the sum of $100,000 which you have not yet repaid to her, but that enabled you to pay the insurer of Camp Australia, which you did in approximately April last year.  That was pursuant to a compromise of the amount owed, and you have been released from the further amounts the insurer apparently paid to Camp Australia. 

38      There is nothing before me as to whether Caulfield Grammar has been repaid any of its losses, but I take into account that those were a more moderate amount of $23,300.

39      A psychological report from Mr Patrick Newton was tendered, as was a report from your treating psychiatrist Dr Wild.  Mr Newton's report outlined your background and history as such reports are want to do.  He was of the view that as described to him, you had suffered two episodes of depressive mood disturbance in reaction to significant stressors.  The first was from stressors that commenced in about 2005 and which persisted particularly from 2006 onwards when you learnt of your wife's relationship with your brother-in-law.  You had not however sought any treatment at that stage.  The second episode he considered was triggered by your arrest for these charges.  You then undertook some treatment by way of some medication which by the time you saw Mr Newton you had ceased, and through counselling with Dr Wild.  Mr Newton felt you were still mildly dysphoric when he saw you, and he attributed that to elevated distress in response to facing these charges.  He noted you had expressed remorse and that there were no indications or other factors underpinning your offending or likely to lead you into re-offending.  

40      Taking into account the matters outlined, I consider that general deterrence and just punishment are the principle sentencing factors in your case.  I do not regard specific deterrence, that is to deter you from future offending, as needing much weight in deciding your sentence as I believe that you have well and truly learnt your lesson and that all other aspects of your life are likely to enable you to live responsibly in the future. 

41      I must impose a sentence that is no more severe than is required to meet sentencing principles, and under the principles outlined in Boulton's case which extended the range of cases and the seriousness of cases for which a Community Corrections Order might still be appropriate, it is in my view sufficient punishment in this case to impose a community corrections order.  The prosecution acknowledges that a Community Corrections Order would be within the appropriate sentencing range.

42      I had you assessed, but no rehabilitative or other restrictive conditions were recommended on assessment.  That means that the only condition will be unpaid community work.

43      Peter Brettell, on each of the charges you are convicted and sentenced to a Community Corrections Order which is to last for three years.  I impose this as an aggregate sentence because of the overlap in timing and also some overlap in the use of two false employees' names as between the offences under Charges 1 and 2, and the overlap in some of the behaviour.

44      The only condition I impose on the Community Corrections Order is for you to perform unpaid community work, but in my view that should be substantial and I set it as 350 hours.  That can be performed over the whole of the three year period to enable you to fit it around your employment commitments and your family commitments including of course those involved with your daughter's treatment.  However, if you complete the community work in less than the three years, that will in fact bring the CCO to an end.

45      In addition to that condition, all usual terms of a Community Corrections Order apply.  I know they have been explained to you but I will repeat them briefly.  You must within two working days, and that means by 4 pm this Wednesday, report to your local community corrections office which on the report says it is Dandenong and the address will be on the order.  You must during the whole of the period that the Community Corrections Order operates accept all lawful directions or instructions from community corrections officers.  You must advise community corrections officers of any change of address of where you are living or where you are working within two clear working days of that change occurring.  You must not leave the State of Victoria without first obtaining permission from community corrections officers.  And above all you must not commit any further offending which could attract a term of imprisonment even if it were minor a term of imprisonment would not be imposed. 

46      If you do either fail to comply with the terms and condition of the order, or commit any further offending, you can expect contravention proceedings to be brought and that would mean - that is in the discretion of the community corrections officers - it would come back before me and depending on all of the circumstances of any such breach of terms or conditions, and of course depending on how much you had satisfactorily completed, it would be open to me to re-sentence you for this offending.  But as I say that would all depend on the circumstances if they arose.  As I have said, I am confident that there is a very low risk of you offending again but I am obliged to explain those consequences to you.

47      Now Mr Brettell, do you understand the terms and conditions of this CCO:

48      OFFENDER:  I do Your Honour.

49      HER HONOUR:  Do you agree to comply with it?

50      OFFENDER:  Yes.

51      HER HONOUR:  All right, well that will shortly be prepared for you.  I was also asked to make an order for a forensic sample to be taken from you, I did not hear submissions from your counsel about that.  It is in my discretion in this particular case, and the nature of this offending and your overall lack of any prior offending and low chances of re-offending, have led me to conclude that that order is not warranted  in this case.  That means that would have required the taking of a sample to have your DNA placed on the database and I am not going to do that in this case.  The very nature of the offending is not the type of offending usually traced through DNA or fingerprints but rather through a line of financial circumstances and proximity to the documents involved. 

52      Finally as you pleaded guilty to this charge I must state what your sentence would have been had you not pleaded guilty but had all other circumstances been the same.  Had that occurred and you had been found guilty of the exact same charges after a trial, I would have imposed a term of imprisonment of six months to be followed by a further 12 months' CCO under which you would have been subject to supervision and had a more moderate amount of community work imposed. 

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HER HONOUR:  All right, you can take a seat Mr Brettell while the orders are prepared.  I beg your pardon apparently I said Dandenong, it is Broadmeadows Community Corrections office.  It will be the closest to where you are living, I beg your pardon, I was wrong.  I will have the CCO shown to both counsel just to check it reflects what I have just said and then ask my associate to take it to Mr Brettell to sign if it is in accordance with what I have just said.

MR TOVEY:  Thank you Your Honour.

HER HONOUR:  Is that - - -

MR TOVEY:  Yes.

HER HONOUR:  Yes all right.  It will just require my associate to take it actually to Mr Brettell to sign.  And then I sign it.  Mr Brettell, it has been checked by your counsel and I know the terms were explained to you in advance but just check it through yourself so that you do understand it.  I've also signed that order.  There will be a copy of the order for Mr Brettell and also for the prosecution and one kept on the file obviously.  Hopefully I can sign off on the full order and then a copy can be given while we're here. 

Mr Brettell can be released from the dock while he's just waiting for a copy of this.  I'll have copies of the order given to both sides, it may be that in the computer the confirmed version hasn't yet - we're not sure if it has yet accepted it as confirmed or not but I think it conveys what I've imposed and then both parties can take away this version.  I think I'll then leave.  I'll stand the court down while those copies are given out and await the arrival of the people for the next delayed matter.  I do apologise again, I simply wasn't in a position to think I could come to court today but I wanted to try to and not protract the matter any further for those involved.  I will stand the court down for ten minutes while the others come into court.

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