Director of Public Prosecutions v Brosnan

[2019] VCC 887

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

AT MELBOURNE
CRIMINAL JURISDICTION

Case No. CR 19-00245
Indictment No. J12547172

DIRECTOR OF PUBLIC PROSECUTIONS

v

TIMOTHY BROSNAN

---

JUDGE:	HER HONOUR JUDGE CONDON
WHERE HELD:	Melbourne
DATE OF HEARING:	7 June 2019
DATE OF SENTENCE:	14 June 2019
CASE MAY BE CITED AS:	DPP v BROSNAN
MEDIUM NEUTRAL CITATION:	[2019] VCC 887

REASONS FOR SENTENCE
---

Subject:  CRIMINAL LAW

Catchwords:  Sentencing – obtain financial advantage by deception - plea of guilty

Sentence:Total effective sentence of 2 years’ imprisonment with a new non-parole period of 5 years.

Section 6AAA declaration: five years’ imprisonment with a non-parole period of 3 years.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper (on plea) Ms S. Denham (on sentence)	Solicitor for the Office of Public Prosecutions
For the Accused	Mr R. De Kretser	Stary Norton Halphen

HER HONOUR:

1Timothy James Brosnan, you have pleaded guilty before me to one charge of obtaining financial advantage by deception.  You were 43 years of age at the time of this offending.  You are now 45 years of age. 

2Exhibit A was the Summary of Prosecution Opening.  I incorporate that document into my reasons for sentence.  However, I will briefly summarise the offending that has brought you before the court.

3At the time of this offending, you and your wife ran a fish and chip shop business known as Tally Ho Fisherman's Wharf (“Tally Ho Fish and Chips”) in
Mount Waverley.

4On Friday 5 August 2016, one of the victims, Craig Hopcroft, discovered an unauthorised transaction of $10,000 on his Commonwealth bank Mastercard.  His internet banking showed that this amount had been charged to your fish and chip shop business.  Mr Hopcroft contacted your shop to query the transaction and spoke to a male who stated his name was Tim Brosnan.  That individual confirmed that he had knowledge of the transaction but refused to cancel or reverse it. Towards the end of August on the 31st, a second victim, Daniel Berg, reported that he had his CBA Mastercard used without authority for three separate transactions.  Two of those were for rather large amounts; $8000 and $7000 respectively, at Tally Ho fish and chips, Mount Waverley.

5Neither of the cards involved had been lost or stolen.  It is believed that all of these transactions were manually entered into the Tally Ho fish and chips shop merchant facility, in other words, their EFTPOS machine.

6On 7 October 2016, a search warrant was executed on Bank of Queensland branch in Springvale and a number of documents relating to the Tally Ho fish and chip shop were provided by the bank to investigators.  As a result of this search warrant, the Bank of Queensland staff conducted a further investigation into the merchant facility at the Tally Ho Fish and Chip shop. 

7This investigation established that between 5 August 2016 and 1 September 2016, there were a total of 38 suspicious transactions through that facility.  These 38 transactions resulted in $282,850 being electronically transferred to the Tally Ho fish and chip shop account for that period.

8Documents obtained under warrant from the Bank of Queensland also confirmed that during August and early September 2016, cash withdrawals totalling $134,000 were made in-branch, using Bank of Queensland card number ending in 6749, belonging to you; cash withdrawals totalling $20,000 were made in-branch using Bank of Queensland card number ending in 7656, belonging to your wife Kelly Brosnan; and a further $70,000 cash withdrawals made in-branch by you, where you produced your Victorian Driver's License as identification at the time of the withdrawal.

9All of these cash withdrawals took place between 6 August and 2 September 2016, just prior to you needing to finance your legal representation (for other matters) to appear on your behalf in September 2016.  On 29 August 2016 and 31 August 2016, you made two cash payments to your solicitor, Michael Gleeson and Associates, totalling $50,000.

10On 2 November 2017, you were interviewed in relation to this offending and made a “no comment” record of interview.  I note that all of the victims involved in this offending, were thankfully reimbursed by the bank. 

11As to the procedural history of this matter, you were charged with this offence on 6 September 2018.  Not long after on 9 November, you through your legal representatives, made an offer to plead guilty. On 7 February 2019, at a special mention of the matter at the Magistrates' Court, you pleaded guilty. 

12In the circumstances, I regard it as an early plea and one consistent with remorse, and a desire to facilitate the administration of justice.  Further, there is some delay, through no fault of your own between the commission of the offence and the ultimate date of charge. 

13Before me, you admitted your prior criminal history.  For the sentencing exercise today, there are a number of relevant matters.

14You are currently undergoing a sentence of imprisonment. 

15On 26 May 2017, you were sentenced by Judge Ryan in this court to a total of eight years' imprisonment with a non-parole period of six years.  That sentence was imposed after you and your co-offender were convicted by a jury of 42 charges of theft, totalling just over $1.9m. There, the offending spanned a period of approximately 15 months, from August 2010 to December 2011.  The victim was your then employer, MCA.  Furthermore, you used your position as the company accountant, so-called, to facilitate that offending.  Therefore, you were in a position of trust and you breached that trust.

16Suffice to say, the offending for which you are currently ongoing sentence was of a far greater magnitude than the matter before me.  However, you come before this Court having admitted 107 prior dishonesty offences spanning a period of 13 years.  At the point at which you were sentenced in May 2017, your behaviour was reflective of an entrenched fraudster.

17The dishonest conduct involving the Tally Ho fish and chip shop, I was told, was partly engaged in in order to fund your legal fees in respect of the MCA offending.  Your counsel submitted that the offending here was not overtly sophisticated and given the amounts involved, bound to be detected.  He submitted that your resort to this fairly transparent offending, was a measure of the desperation you were experiencing at the time.

18While it does appear that at least some of the funds were used to fund your legal representation for the MCA fraud, it is also behaviour, in my view, that reflects your ingrained tendency towards persistently dishonest behaviour.

19Subsequent to the imposition of Judge Ryan's sentence in May 2017, you appeared before the Melbourne Magistrates' Court on 21 November 2017.  On that day, in relation to nine counts of theft, the court imposed a six month term of imprisonment to be served cumulatively upon the sentence imposed by Judge Ryan.  The dates of that offending period were between February 2014 and July 2014.  The amount involved there was $98,201.  Some of the misappropriated funds involved, were used by you to set up a real estate franchise.

20Not surprisingly, when assessing your prospects for rehabilitation in May 2017, Judge Ryan concluded that given your previous criminal history, your prospects for rehabilitation were poor.  Furthermore, His Honour was of the view that you were likely to re-offend in a similar way if ever placed in a position of trust in relation to money.

21Your counsel, in his able plea on your behalf, made the submission that in the past two years, your prospects for rehabilitation have improved.  He pointed to evidence of your enhanced prospects of rehabilitation. 

22In support of his contention, the following matters were relied upon:

·Firstly, this is your first period of time in custody.

·Secondly, in that period of incarceration, you have purportedly realised the consequences of your behaviour, as revealed to Dr Aron Cunningham. 

·Thirdly, you have embarked on education programs and committed yourself to a wide range of vocational courses whilst in custody. 

·Finally, in particular you have embarked on further study, having enrolled in a Bachelor of Construction Management at Curtin University in Western Australia (remotely).  This is a four year full-time commitment.

23While I accept that you have used your time in custody productively and I do have regard to the number of programs and courses you have undertaken, my view is that your prospects for rehabilitation could only ever be described as guarded, at best. 

24I say that, because your recent history does reveal, as I have already observed, persistent and sustained dishonesty offending.  Up until the imposition of the sentence you are currently undergoing, you clearly developed a pattern of behaviour, which involved resort to fraudulent and dishonest conduct, often in circumstances involving a breach of trust.

25You have no diagnosable mental illness.  According to Dr Cunningham, you have features of a Narcissistic and Anti-social Disorder in your profile.  However, your counsel realistically conceded that none of the matters raised in
Dr Cunningham's report would trigger any of the considerations outlined in Verdins.  In Dr Cunningham's opinion, your dysfunctional personality trays have grown from an “overcompensation for [your] feelings of worthlessness and failure”.

26In his view, you are aware of your personality flaws and are motivated to improve and self-develop.  He described you as open when describing your narcissism, entitlement, and feelings of superiority, and states that you are aware these issues require addressing.  You told him that it was not until your current experience of incarceration that the serious consequences of your behaviour finally dawned upon you.

27I turn now to your personal circumstances. 

28As already observed, you are now 45 years of age. 

29Your father was a former Christian Brother, was your mother was a former nun.  They both left their orders to marry.  You described your father to Dr Cunningham as emotionally distant, disconnected, lacking in empathy and selfish.  Your parents separated when you were ten years of age. You had a step-father who was a former Marist Brother.  You described him to Dr Cunningham as a harsh disciplinarian.  You have one younger brother. 

30You left the family home at age 25.  At around 2002 when you were 29 years of age, you met your first wife.  You married her in 2004, and at the time described yourself as an alcoholic.

31You are currently married to your second wife, Kelly.  She is nine and a half years your senior.  You described her to Dr Cunningham as stable, straight, and strong in her Christian values.  You were both involved in the Pentecostal church.  You seek spiritual guidance at the Fulham Correctional Centre from the prison chaplain.  In that vein, I received a reference from the Reverend Heather Toms from the St Pauls Anglican Cathedral in Sale.  She is also the prison chaplain. In the course of that reference, she describes you as a courteous and polite person and cognisant of the importance of your role as a husband and father. 

32While I note you have no biological children of your own, your wife has two daughters, both in their mid 20's, one of which has regularly visited you whilst you have been in custody.

33As for your educational history, you developed chronic fatigue in Year 12 and did not complete school.  You later completed an Advanced Diploma in Accounting at TAFE.  You told Dr Cunningham you completed 23 out of the 24 units of an accounting degree.  You were initially employed at the student union of the Box Hill TAFE.  You then worked for Zurich, and for accounting firms in credit control and financial management.  You began consulting from 2000 and had your own company from 2010 onwards.

34I note that up until the age of 30 you lead a blameless life.  Your first appearance in relation to a dishonesty matter was at the Dandenong Magistrates' Court on 7 April 2004, where you were dealt with for 51 charges of theft and received a six-month intensive community correction order.  Six years later, you embarked on a sophisticated and calculated course of conduct, involving the theft of approximately $1.9m from your employer.

35At one stage in your life you were an alcoholic, as I have already observed, and would drink half a bottle of scotch and a slab of beer per day.  You engaged with Alcoholics Anonymous in April of 2008 and you have not abused alcohol since that time.  You continued to be involved with Alcoholics Anonymous in prison.  There was nothing to suggest that your offending here, was in any way related to your abuse of alcohol.

36The basic purposes for which a court may impose a sentence are punishment; deterrence, both specific and general; rehabilitation; denunciation and protection of the community.  In sentencing you, I must have regard to a range of matters, such as the seriousness of the offending, your culpability for it, your personal circumstances, and those of the victim, if any. 

37Would you please stand, Mr Brosnan.

38In relation to Charge 1, being a charge of obtain financial advantage by deception, I convict you and sentence you to a period of imprisonment of two years. 

39I order that nine months of that sentence be served cumulatively upon the sentence that you are currently undergoing. In making this order, I am mindful of the operation of s.16 of the Sentencing Act and the need to impose a sentence upon you that does not offend the totality principle.

40Pursuant to s.14 of the Sentencing Act I impose a new non-parole period of five years, effective from today's date. 

41Pursuant to s.6AAA of the Sentencing Act, were it not for your plea of guilty, I would have imposed a sentence of imprisonment of five years with a non-parole period of three years.

42Yes, you may be seated, Mr Brosnan.  Yes, there were no other orders sought.

43MS DENHAM:  No, Your Honour.

44MR DE KRETSER:  No, Your Honour.

45HER HONOUR:  Yes, you can take Mr Brosnan away, please.  Yes, adjourn.

46MR DE KRETSER:  As Your Honour pleases.

‑ ‑ ‑