Director of Public Prosecutions v Briers

[2016] VCC 412

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-001685

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARCIA BRIERS

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	17 February 2016
DATE OF SENTENCE:	12 April 2016
CASE MAY BE CITED AS:	DPP v Briers
MEDIUM NEUTRAL CITATION:	[2016] VCC 412

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Sentence – Plea of guilty – Theft – Gross breach of trust – Position of trust abused repeatedly – Medium sized company – Thefts contributed to company’s financial fragility - Depressive state at the time of offending – Offender has children with special needs but this not put on exceptional hardship bases

Cases Cited:Boulton v The Queen [2014] VSCA 342; The Queen v Atanackovic [2015] VSCA 136

Sentence:Convicted and sentenced to Community Corrections order of 4 years’ duration including Judicial Monitoring – Ancillary Orders Compensation – S.6AAA Sentencing Act 1991 declaration

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pickering	Solicitor for Public Prosecutions
For the Accused	Mr P. Tiwana	Dribbin and Brown

HER HONOUR:

1.Marcia Briers, you have pleaded guilty to two charges of theft, an offence which has a maximum penalty of ten years' imprisonment.

2.The maximum penalty reflects the seriousness with which Parliament regards this offence and is one of the matters I must take into account when sentencing you.

3.Your offending was opened as follows:

4.You are now 41 and you were about to turn 38 when you first offended.

5.You commenced employment with Boucher and Boucher Pty Ltd, trading as Nifty-Lift Elevating Work Platforms on 11 November 2009.  You initially worked on a casual basis, then moved to part time, assisting with accounts and office administration.

6.During your employment you were given a customer identification number by Westpac and a SecurID token to enable secure online payments to be made for your employer.  You were then able to set your own password.

7.After your work ended on 26 March 2014, for reasons unrelated to the offending, an accounts clerk took over your role and attempted to pay $31,794.15 recorded on an invoice to a supplier.  When the supplier said that the payment had not been received, it was discovered that the account number and BSB number on the invoice was for an account held by your 14 year old daughter.  On
29 April 2014, the victim company received a call from this supplier saying that a person purporting to be ‘Sarah Millar’ had contacted them saying that she had accidentally received funds in error and wanted to repay these and this was done on 30 April 2014.

8.The financial manager of Boucher and Boucher, Ms Kelly Begley, became suspicious and investigated transactions involving you.  She found that you had made 27 payments from the victim company’s account to your daughters’ accounts.  You had hidden these transfers by creating fictitious purchase orders to various suppliers and changing the account payment details for the suppliers on the internal accounting system to that of your daughter's accounts.  There were eight suppliers whose details were changed in this way.

9.The first dishonest payment made by you was on 4 October 2012 and you continued to make these payments on an almost monthly basis, often making more than one payment in a given month, with the last or 27th transfer being made on 6 March 2014.  The total amount stolen by you was $283,011.63.

10.The thefts were reported to police on 9 May 2014 and after warrants were executed to obtain financial records, you were arrested on 18 August 2014.

11.You took part in a record of interview and made full admissions.  An extract of these was referred to in the prosecution opening. You admitted the following:

·that you were responsible for the thefts;

·you did not know how many transactions you made but did it to feel better;

·you were transferring payments from the company overdraft account (Q.81);

·you generated the false invoices by copying other genuine invoices (Q.101);

·you had opened the accounts for your daughters prior to the offending commencing;

·you were the signatory to those accounts;

·you spent the money on lotto tickets online;

·you also used the money to pay your Visa card, cigarettes, home renovations, overseas holidays and clothes, and had planned and paid for another holiday to Thailand at the time of the arrest; and

·you had pretended to be “Sarah Miller” to pay the money back to Excelfab.

12.Your offending is aggravated by the fact that you were in a position of trust and you grossly abused this repeatedly.  Your offending was of a fairly sophisticated nature and involved a good deal of purposefulness and deliberation, occurring over the course of about 18 months. This was not simply a matter of putting a series of thefts in train which then ran automatically.  Rather, it involved constant input by you.  You were able to hide your ongoing offending by use of your own PIN and by virtue of the trust that the company had placed in you. It may be that the discovery of your thefts was inevitable but that is not clear, albeit that once suspicions were raised, the payments were easily traced to you.  The total sum is a significant one, and comprised a number of transfers of substantial sums. While it is true that there are cases where far larger sums have been stolen and over lengthier periods, I regard your offending as serious and deserving of a punishment which is just in all of the circumstances and your conduct must be denounced.

13.I understand that the company is one of medium size and could ill afford the sums that you took from it.  Whilst it has been largely reimbursed by insurance now, this only occurred once your offending was known such that it was being bled in the meantime.  Of course, the insurance company and the company are now looking to you for compensation and you do not oppose the orders, although, it would appear that you are not in much of a position to repay the sums owed in the foreseeable future.

14.I factor in the victim impact statements which were tendered in this matter:

15.Ms Kelly Begley read her victim impact statement aloud in Court, which was a most courageous thing to do.  She spoke of her feelings of deep hurt and betrayal caused by your deceptive conduct, and of her perception of how the thefts contributed to the company’s financial fragility and the need to make a number of employees redundant.  She has suffered ongoing difficulties in dealing with staff and with the owners of the business, as she feels responsible for encouraging your appointment to the position that you held.  Your betrayal of her trust has led her to question her judgement at work and has undermined her self-confidence and wellbeing generally, which has had a flow on effect to her family.  At one stage she was unable to attend work because of her all consuming anger and disbelief at what you had done.

16.I would like to say to Ms Begley that she is not responsible in any way for what you have done, and she ought not punish or blame herself for trusting you.  If I might say so, it appears to me that Ms Begley presented as a most loyal and decent employee that any company would be most fortunate to have.

17.Kevin Power, the general manager of the company, said that your crimes have affected a number of his key members of staff immeasurably and spoke of their hurt and embarrassment which has undermined their confidence.  He said that he also suffered extreme feelings of broken trust and embarrassment because of your offending.  Like Ms Begley, Mr Power also supported your advancement in the workplace as well as pay increases.  After discovering what you had done, he had the unenviable task of explaining to the other directors and key staff as to how his trust in you had been misplaced.  He said that he was at risk of losing his job and potentially his career, which caused him considerable stress for some time.  He also attributes a number of redundancies to your offending and spoke of the emotional toll that it took on all involved; that you were aware of the redundancies and yet continued to steal.  He spoke of his perception that you led an extravagant lifestyle compared with a number of other employees, and said the overwhelming emotion that he is burdened with is that of anger.  He said that he now had difficulties in trusting employees and he set out the various substantial financial impacts that he said your offending had caused, including the payment of interest on a number of occasions because your thefts led to the company having to draw on overdraft and the need to pay far higher insurance premiums.  There were also significant losses of work hours because of the need for staff to liaise with the police.

18.Lesley Gail Boucher, the wife of a director of the company, also spoke of the financial and emotional toll that your offending had caused her, her husband and employees.  She spoke of a total lack of empathy which she perceived you to have toward those who had tried to help you during the course of your employment.  She spoke of the hard work that her husband had engaged in to build up the business and of you attending her husband’s retirement and birthday lunch on the day that you took two sums, following this up with a further sum on his birthday.

19.Suzanne Mosher, a senior manager at the company said that she now had little confidence to ever manage a team again, as she was one of your managers during the course of your offending.  She also spoke of commending you to the company and supporting your advancement.  She said she felt a sense of guilt now for doing so.  She has stepped down in her managerial role at the company and still questions her capabilities as a leader.  She is considering terminating her employment with the company.  May I say to Ms Mosher that she has done nothing wrong at all and ought not question her competence.  As was the case with a number of others, she trusted you and was perfectly entitled to do so.

20.Graeme Boucher said that he had proudly employed over 200 people for his company in the years since he started his business from scratch and he still struggled with his perception of your complete lack of remorse and disregard for other staff members.  He said that he is angered by the fact that you had not made any attempt to repay the company or to apologise to any of the people whom you had deeply affected.  He spoke of the emotional drain of having to retrench employees in 2013, which he attributed to the impact that your thefts had on the business.

21.Ms Briers, as these victim impact statements clearly reveal, the impact of your offending goes way beyond a financial one; it has deeply affected a number of people in your former workplace.  I take the impact upon these victims into account when sentencing you.

22.You have no prior or subsequent convictions, which is a matter which counts in your favour concerning your prospects of rehabilitation.

23.I allow for a significant discount in the sentence you would otherwise receive because of your early plea of guilty, which has saved the witnesses the time and trouble of giving evidence and has saved the community the time and expense of contested proceedings.  Indeed, you facilitated justice to an extent beyond this, in that you made full admissions to the police in your record of interview.  This shows that you had a preparedness to take responsibility at an early stage, which is something that a number of offenders do not do.  As to whether you are genuinely remorseful, this is a complex question.  While you have expressed remorse for your actions and their impact on others to
Ms Matthews, psychologist, and to some of your character referees, and you have also expressed remorse in particular in relation to Ms Begley in the Community Corrections Assessment Report, and while you have also been fully co-operative in the matter, this has to be weighed against the nature of your offending, which was no spur of the moment decision.  In the end, I accept that you are somewhat remorseful for your actions over and above feeling sorry for your own predicament.  However, in my view, you have a good way to go in terms of developing insightful contrition for your offending.

24.I accept that you were suffering from depression for at least some of the period during which you were offending, as there is documentation which supports that this is the case.  In particular, the report from Eastern Health in relation to your suicide attempt in September 2013 attests to this.  On the other hand, you were able to enjoy the fruits of your offending including a trip to Disneyland which, in my view, does not sit too clearly with depression.  Ms Matthews, psychologist, is of the view that you were suffering from a major depressive episode over the course of your offending and that your offending was intimately linked to your depressed mood state at the time.  She said that your thought and decision making skills were impaired because of this.  She said that the offending occurred during a period of acute psychological stress related to a marriage breakdown and the commencement of a new relationship.  She went on to say that you coped with the major depressive episode by alcohol abuse, socialising so as to avoid loneliness when not with your children, including perhaps "buying friends", and, "most significantly, withdrawal into autistic fantasy involving gambling on Tattslotto tickets to solve the problems that you thought you had created for your ex-partner and children".

25.In the end, I find that your moral culpability is marginally reduced because you were suffering from impaired judgment at the time of the offending due to your depressive state and I marginally reduce the weight which I would otherwise attach to specific and general deterrence.  I have also factored this in when determining the need to impose a just punishment and I accept that because of your current psychological state, as well as your concern for your children, one of whom has special needs, any time in gaol which would be served by you will be harsher than for someone without these difficulties.

26.I take into account your background.  Your mother was born in America and met your father there who was born in Yugoslavia.  They adopted two children as they believed that they could not have their own children.  However, they went on to have four children, including you.  At some point, your parents moved to rural Queensland.  Your parents separated when you were three and your mother later re-partnered.  You were very close to your stepfather, but had a strained relationship with your mother over the years. Sadly, your stepfather died six years ago.  You have had no contact with your natural father for a long time, describing him to Ms Matthews as a serial womaniser.

27.You have suffered physical abuse from your mother during your childhood and sexual abuse at the hands of your oldest adopted brother.  You have never been to the police about this, which you said occurred when you were four.  When you complained to your mother, she dismissed this as a dream.  You suffered beatings and the use of a strap at the hands of your mother, who was constantly punishing you for any perceived transgression.

28.I was told that as a child you lived in poverty and had never been on holidays.  You were never given lunch when attending school and you wore old clothes.  Unfortunately, such deprivations then led you to being bullied.  You left school when you were 15.  It may well be that your impoverished upbringing is something of an explanation for wanting to enjoy a lifestyle that you could not afford, hence the offending before me.  However, while I take these matters into account, it was not suggested that your background was an excuse for your offending, nor could it have been.

29.Earlier on in your life, you dabbled with cannabis then speed but you did not pursue these.  You have experienced ongoing difficulties with excessive alcohol consumption.

30.I accept that you have a solid work history, which is a positive matter when it comes to your prospects of rehabilitation.  Obviously, any future employment could not involve you being placed in a position of trust insofar as money is concerned.  After losing your job with the victim company, you obtained further employment and as at the date of the plea you are working for a company that organises school camps, but I was told that this does not involve you handling funds.  I was told today that you no longer have this job, having given it up due to the stresses associated with your current predicament.

31.You married when you were 21 but the marriage only lasted ten months.  I was told that your then husband, (an Englishman called Justin according to
Ms Matthews’ report) was using you to secure residency here.  Your second partner was a painter and you worked for him in his business.  You married in 1999 and you have two daughters from that relationship.  They are now aged 14 and 15.  You then separated in about 2011, but you have remained amicable with one another.  You are currently in a relationship with an engineer who was working with the victim company.  He attended the plea hearing in support of you.  Unfortunately, because of his support of you he was sacked from his employment the following day.

32.Your oldest child has struggled with depression in the recent past, and your
14 year old child has Autism Spectrum Disorder Level 1 and is socially withdrawn.  Her behaviour was very challenging when she was younger and she can still be quite demanding at times.  You and her father are very well versed in how to deal with her rather intensive and particular needs.  You have the custody of the children but they stay with their father every Tuesday and second weekend.

33.After you separated, the family home was sold and you bought a new house, borrowing 95 per cent of the funds to do so.

34.I was told that you have done your best to be a good mother to your children.  However, you appear to acknowledge that this offending is far from good role modelling material.  Putting this aside, however, it appears that you have been a loving and devoted parent.  I was told that your children are aware of the charges.  You are most concerned about your children’s wellbeing, and as I previously indicated, I accept that this would make any time in gaol harder for you than for someone without such a strong bond.  Quite properly, it was not submitted by your Counsel that your children would suffer exceptional hardship if you were to be incarcerated, albeit that their lives would be significantly disrupted, in circumstances where they have always lived with you and each have their issues.  I can only factor these matters in from your point of view, not theirs, as exceptional hardship is not a factor I can take into account in your case.

35.I was told that you drank excessively on weekends during the period of the offending to deal with symptoms of depression and loneliness.  I was also told that you spent about $140,000 on lottery tickets in a bid to retrieve funds and repay some of these.  However, if this was your objective, you did not make any repayment, and in any event, you continued to steal money from your employer. Ms Matthews described your purchases of lottery tickets as involving withdrawing into "autistic fantasy" in order to solve the problems you believed you had created for your ex-partner and children.  While, like many who gamble, you may have been of the view that you could improve your situation by winning money and fantasising about doing so, I have difficulty with the expression, "autistic fantasy", if this is supposed to convey some mental condition you were suffering from, over and above the diagnosis of Major Depressive Disorder.

36.I was told that you led a modest lifestyle notwithstanding the sums that you stole.  While that might be true these days, when you had the funds you spent them on yourself and your children in rather lavish ways, albeit that your lifestyle was not as extravagant as some.  I was told that the overseas trips were not entirely funded by you but were contributed to by your partner.  Since your current partner has now lost his job he has obtained further work as a delivery driver but his own predicament has added to pressure on you, both personally and financially, and I have also taken those matters into account.

37.I was told that you have decreased your alcohol intake and you continue to devote yourself to the care of your children.

38.I factor in that there has been some delay in this matter, although this has not been inordinate, and may be partially explained by the need to thoroughly investigate the case notwithstanding your significant admissions.  I make some allowance for this in view of the fact that you have had the matters hanging over your head for about 20 months now in circumstances where you suffer from depression, and you have also shown during that period that you can remain offence free.

39.You received counselling on several occasions from Pamela Matthews last year.  She is of the view that you would need a good deal of treatment and monitoring in a custodial setting if you were to be placed in one, and to be medicated with anti-depressants.  I have also factored in that if I were to send you to gaol, this would be your first time there, which would be a more onerous than for a more seasoned prisoner.

40.In view of the nature of the offending and your motivation for it, but also in view of your otherwise good character, your solid work history and supports in the community, as well as your preparedness to take responsibility for your offending from an early stage, I find that your prospects of rehabilitation are quite good and I place fairly minimal weight on specific deterrence.

41.Your Counsel submitted that a suitably structured community corrections order was warranted in your case, although a suspended sentence would also be available.  He submitted that in view of the decision of Boulton v The Queen [2014] VSCA 342, a citation in my revised reasons, the starting point for your matter was a community corrections order and that in view of all mitigating features, such a disposition was appropriate in your case. He submitted that if I came to the view that a period of immediate gaol was warranted, then a community corrections order in combination with a short term of imprisonment ought be imposed.

42.Mr Pickering on behalf of the Crown submitted that an immediate custodial term in combination with a community corrections order was warranted.

43.In Boulton, the Court of Appeal made it very clear that community corrections orders were being under utilised in this Court and that they could be crafted in such a way that they could adequately address all relevant sentencing considerations in appropriate cases, even where offences were relatively serious.  Whereas in the past, gaol may have been seen as the only option for an offender, community corrections orders alone, or in combination with an immediate gaol term, might be imposed in appropriate cases.  In your case, it comes down to a consideration of whether I can adequately address all sentencing factors by imposing a community corrections order alone, or whether the offending is too serious to admit of this in all of the relevant circumstances, including matters in mitigation.  In this regard, I am mindful that, as Mr Pickering submitted today, a community corrections order cannot be seen as a cure for all ills, which has also  been made clear by the Court of Appeal in The Queen v Atanackovic [2015] VSCA 136 and I will give the citation in due course.

44.Ms Briers, your case is on the cusp, in my view, but after long and anxious thought, I have come to the view that a suitably crafted community corrections order can do justice to all relevant sentencing principles, but it will be an onerous one, and you had better comply with its terms or you will almost certainly be going to gaol.  In all of the circumstances of your case, in my view, the community will be better served by you making a positive contribution to it over a number of years, rather than being locked up with the significant risk of you going backwards in terms of your rehabilitation.

45.Would you please stand up?

46.You are convicted of each of the offences. 

47.I make the compensation orders in the terms of the draft orders handed to me by the Crown. These are not opposed by you.

48.I make an order for a forensic sample order to be taken by way of a swab of saliva from the mouth, despite your opposition to the order.  I make the order because of the seriousness of the offending and because it is in the public interest to make such an order.

49.I intend to place you on a community corrections order for a period of four years.

50.I intend to place you on the order but I can only do this with your consent so please listen carefully to the order that I propose.

51.The community corrections order would run for a period of four years and the conditions of it would be as follows:

52.Firstly, the mandatory terms that apply to all Community Correction Orders are:

·you must not commit another offence for which you could be imprisoned during the time that the order is in force;

·you must comply with any obligation or requirement prescribed by
Regulation 17 of the Sentencing Regulations 2011;

·you must report to, and receive visits from, the Secretary to the Department of Justice (or his or her delegate);

·you must report to the Lilydale Community Corrections Centre before 4 pm within two clear working days of today;

·you must let a community corrections officer know within two clear working days of you changing your address or job;

·you must not leave Victoria without first obtaining permission to do so from the Secretary to the Department of Justice or his or her delegate; and

·you must obey all lawful instructions from and directions of the Secretary to the Department of Justice or his/her delegate.

53.The conditions that apply in addition to the mandatory terms listed are:

Community Work

You must undergo 300 hours unpaid community work within three years.

Supervision

You must be under the supervision of a Community Corrections Officer for a period of  four years.

Treatment and Rehabilitation

You must undergo assessment and treatment (including testing) for alcohol abuse or dependency as directed by the Regional Manager.

You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility, as directed by the Regional Manager.

You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the Regional Manager. I express the wish that, in addition to any other courses deemed appropriate, you ought engage with a gambling addiction service to help address any issues in this regard.

Judicial Monitoring

Further, you must attend the Melbourne County Court on Friday, 20 May 2016 at 9:30 am to be reviewed by me, and you will be required to attend for further reviews by me from time to time for the duration of the order.

54.Having heard all of the proposed terms and conditions of the community corrections order, do you consent to it?

55.ACCUSED:  Yes, Your Honour.

56.HER HONOUR:  I should tell you that if you do not comply with all of the requirements of the community corrections order then you will face breach proceedings before me.  You will be sentenced in relation to the breach and you will be re-sentenced in relation to the charges, in which case you may well be sentenced to a period of imprisonment.  I would regard a breach of the community corrections order as a most serious matter, whether it be because of further offending or because of non-compliance with any of the other conditions of the order.

57.Do you understand this?

58.ACCUSED:  Yes.

59.HER HONOUR:  Do you maintain your consent to the order?

60.ACCUSED:  Yes.

61.HER HONOUR:  Therefore in relation to the charges, you are convicted and sentenced to a community corrections order in the terms and conditions that I have just set out.

62.I indicate if not for your pleas of guilty I would have sentenced you to a period of four years' imprisonment with a non-parole period of two years, ten months.

63.You can come out of the dock and approach your Counsel, who will assist you with the signing of the order.

64.Before that is done I might ask Mr Pickering if there any difficulty that you perceive in relation to that matter?

65.MR PICKERING:  No, Your Honour.  I was just going to say does Your Honour need further copies of the ancillary orders to sign or does - - -

66.HER HONOUR:  No, I have attended to that, thank you.

67.MR PICKERING:  As Your Honour pleases.  Just as a matter of practice, Your Honour, is it Your Honour's practice to have a representative from the prosecution for the judicial monitoring?  Some judges do and some do not.

68.HER HONOUR:  I will just wait until that is done.  All right.  Just take a seat behind your counsel there, all right.  It depends, Mr Pickering.  In this case, I think for the first one at least, I will, but we will see how things go and it really will be a matter of my associate indicating one way or another, from time to time, as to whether the prosecution is required.

69.MR PICKERING:  I will make sure my instructor knows.

70.HER HONOUR:  Yes.  If it is not going well I want the prosecutor along but if it is going well enough or well, then I will not require the prosecution to come along.  We always have a Community Corrections officer and, of course, a report as to the progress of the person ahead of the monitoring hearing.

71.MR PICKERING:  As Your Honour pleases.

72.HER HONOUR:  All right.

73.MR TIWANA:  Your Honour, I do not think the defence are required to return hence (indistinct).

74.HER HONOUR:  No.  All right, so the details of all of those requirements will be - a copy of those will be provided and Ms Briers would do well to stick to the letter of each of those requirements.  Anything further?

75.MR PICKERING:  No, Your Honour.

76.MR TIWANA:  No, thank you, Your Honour.

77.HER HONOUR:  Thank you, we will now adjourn.

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