Director of Public Prosecutions v Brosnan and Dailakis
[2017] VCC 668
•26 May 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No: CR-14-01883
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TIMOTHY JAMES BROSNAN and |
| EVANGELOS DAILAKIS |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 May 2017 | |
DATE OF SENTENCE: | 26 May 2017 | |
CASE MAY BE CITED AS: | DPP v Brosnan and Dailakis | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 668 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCE
Catchwords: Sentence – Theft – plea of not guilty
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Sentence: 8 years imprisonment with a non-parole period of 6 years imprisonment. 7 years and 7 months imprisonment with a non-parole period of 5 years and 7 months imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B. Gibbs | Annalee Coomber Solicitor for Public Prosecutions |
| For the Accused Brosnan | Ms F. Cameron | Michael J Gleeson & Associates |
| For the Accused Dailakis | Mr V. Peters | Allan McMonnies |
HIS HONOUR:
1 Timothy Brosnan and Evangelos Dailakis, on Monday 27 February 2017 you came before me for trial. You were charged as co‑accused in respect of 38 charges of theft alleged to have occurred between August 2010 and October 2011 (being Charges 1 to 36, 38 and 41), whilst you, Mr Brosnan, faced four additional charges of theft (being Charges 37, 39, 40 and 42), that extended your charge period to December 2011.
2 You each pleaded not guilty and a jury was empanelled on 28 February, but discharged without verdict that day. A second jury was empanelled on 1 March 2017 and discharged without verdict on 2 March 2017. A third jury was empanelled on 6 March 2017, and after a trial lasting eight days the jury returned verdicts of guilty on all charges.
3 Your personal details were taken and you admitted your prior criminal histories.
4 In respect of you, Mr Brosnan; you are aged 43 years and admitted 55 prior convictions for dishonesty from three court appearances between 2004 and 2009. In each instance you were sentenced to terms of imprisonment to be served by way of an intensive correction order or wholly suspended sentences.
5
Mr Dailakis; you are 54 years of age and admitted 47 findings of guilt or prior convictions from 17 court appearances from 1980 to 2009. Included in your criminal history are convictions for dishonesty, violence, bail, and driving offences. Of note is a sentence of four years and six months’ imprisonment with a non-parole period of three years’ imprisonment imposed on you on
3 September 1999 by the County Court for six charges of obtaining property by deception, three charges of attempting to obtain property by deception and two charges of perjury. Your appeal to the Court of Appeal was dismissed and is reported at [2000] VSCA 55.
6 Your offending can be described in short compass. You, Mr Brosnan, were the accountant for the complainant company. You oversaw the company’s transition from manual payment of bills to an electronic bank transfer system. You raised payments within the electronic system and almost invariably were the first authorising officer for these transactions. A second authorisation was needed, and this came from any member of a small group of trusted employees within the complainant company; including its principal. Authorisation was affected by the use of a “dongle” that generated a unique authorisation number for each payment.
7 Your practice was - after initiating and authorising a payment - to summon another authorised employee into your office to provide the secondary authority. These persons relied upon your integrity as the company’s accountant. By a subterfuge, whereby you replaced the correct BSB and bank account number of a genuine business creditor with the details of accounts connected to your co‑accused, Mr Dailakis, you transferred funds into his accounts. Individual amounts varied from approximately $7,500 (Charge 20), to approximately $151,500 (Charge 16). Of these transactions you, Mr Brosnan, fall to be sentenced on 12 continuing criminal enterprise offences, whilst you, Mr Dailakis, fall to be sentenced on 11 such offences.
8 Upon receipt into bank accounts associated with you, Mr Dailakis, the money was washed through a number of accounts, and thereafter, in the main, withdrawn in cash (see Exhibit N at the trial). The total amount stolen by both of you is $1,822,783.33. Mr Brosnan, you stole an additional $87,363.39, totalling $1,910,146.72, which includes the additional continuing criminal enterprise offence (Charge 37). None of the stolen moneys were recovered.
9 Tendered as Exhibit A on the plea was the victim impact statement of the principal of the complainant company. He swore that your position, Mr Brosnan, as the company accountant, was a position of trust; which trust you breached. Further, your conduct placed financial stress on the company and emotional stress on staff. Your conduct disrupted the company’s business for years. The company spent approximately $128,000 in investigating and in prosecuting its claim against you. Whilst Exhibit A is directed to Mr Brosnan, the consequences of his conduct are equally applicable to you, Mr Dailakis.
10 The maximum penalty for theft is ten years’ imprisonment, however, Charges 1, 2, 3, 15, 16, 17, 21, 29, 30, 32, 34 and 37 are continuing criminal enterprise offences, and the maximum penalty for these offences is 20 years’ imprisonment.
11 Your pleas were conducted over two days; being 20 March 2017 and 5 May 2017, owing to counsel forming the opinions that in respect to each of you a psychological report was necessary to properly present your pleas. Ultimately the reports provided little assistance to me in the exercise of my sentencing discretion.
12 Ms Cameron of counsel - who appeared on your behalf, Mr Brosnan - appropriately acknowledged that your offending was of a high order, that it involved a breach of trust, that you concealed your offending from your employer, that a large amount of money was involved, and that your offending continued for a lengthy period. However, Ms Cameron submitted that the continuing criminal enterprise offences were at the lower end of the range of offences of that kind. She submitted that there was no evidence of your enrichment contained within the trial brief. Whilst you have consistently worked as an accountant, Mr Brosnan, you are not qualified to do so. Some of your prior convictions were committed whilst working as an accountant, and accordingly also involved a breach of trust.
13 Mr Brosnan, you are 43 years of age and have been married twice. Your first marriage lasted a little over a year, and you attribute the breakdown of this relationship to your childhood sexual abuse and alcoholism.
14 You are presently married to Kelly, who you married in 2012. You are the stepfather to her daughter, Hannah. Both Kelly and Hannah wrote references on your behalf (see Exhibit 1 on your plea).
15 You met your wife at work, when you worked as an accountant. A friendship did not develop between you and Kelly until 2009 or 2010. At the time you were attending Alcoholics Anonymous. You were active in your involvement within that organisation, and continued to be so until you were remanded in custody following verdict. Your wife was, and is, an active member of the CityLife Church, and you have become an active member of this church as well (see references of Andrew Robinson and Terry Kircher; part of Exhibit 1). It would appear that you have been open with the pastor of that church in respect of your alcoholism and past offending.
16 Your wife and stepdaughter write of you in glowing terms and currently support you, and will continue to do so into the future. It is of concern, however, that at the time prior to your trial you were working as an accountant, and both your wife and stepdaughter were working within the same firm; Whitehall and Co. In this regard you are incorrigible.
17
You were born in Melbourne and have one brother with whom you have limited contact. Your father is 79 years of age, whilst your mother is 71. They separated when you were 14 years of age or so, and your mother re-partnered two years later. Your stepfather was a disciplinarian and is deceased. You were educated within the Catholic education system until Years 11 and 12, which you completed at Mount Waverley High School. As a youth you suffered from asthma and spent long periods away from school. Your asthma adversely affected your ability to participate in sport. You represented to
Mr Watson-Munro in conference that you were diagnosed with chronic fatigue syndrome in Year 12.
18 After leaving school you undertook, but did not complete, an Advanced Diploma in Accounting. Thereafter you worked as an accountant.
19 As a result of the break-up of your first marriage you consulted a psychiatrist, as well as a psychologist, and in respect to the latter consultations continued from October 2009 until 2015 under the auspices of a mental health plan.
20 Your mother is in ill health and has increasingly relied on you since the death of your stepfather (see Exhibit 1). However, Ms Cameron did not submit that exceptional circumstances arose from your mother’s ill health and your inability to support her whilst you will be in prison.
21 A number of your referees know you through Alcoholics Anonymous. They universally hold a high opinion of you. They write of your sobriety over the last eight years, your commitment to Alcoholics Anonymous as an organisation and the assistance that you have provided to individuals over that time.
22 In respect of your alcoholism it was submitted that this arose out of a sense of abandonment by your father when you were of tender years, and that you had no real contact with him thereafter. I was informed that you were introduced to alcohol by your stepfather, and from early adulthood you were drinking a slab of beer a day, as well as wine and spirits. I was informed that it was your belief that it was your alcoholism that contributed to a lack of self-esteem, breakdown in relationships, and your initial offending.
23 On return of the plea, tendered as Exhibit 2, was the report of psychologist Tim Watson-Munro dated 4 May 2017. You maintained your innocence to Mr Watson-Munro. His report contains your social history and what is described as a drug, alcohol and psychological history.
24 You presented to Mr Watson-Munro as clearly depressed and anxious, which is understandable bearing in mind the position in which you find yourself. You impressed as an intelligent man who had a complex developmental history characterised by feelings of emotional abandonment by your father, and difficulties with your stepfather. Mr Watson-Munro opined that you continue to suffer symptoms of a depressive disorder and features of an anxiety disorder.
25 Since being remanded in custody you have been kept at the Melbourne Assessment Prison and the Melbourne Reception Prison. You have been active in undertaking courses, using the library, and exercising. You have lost 15 kilograms in weight. You have undertaken six of the seven levels of training needed to be eligible to participate in the school program within the prison. You intend to complete the seventh aspect of that training. This will permit you to involve yourself with Year 9 to 11 Legal Studies students, with a view, as I understand it, to assist them in their studies, as well as to impress upon them the importance of a law-abiding lifestyle. In addition you hope to undertake distance learning.
26 Since the time of being charged, Mr Brosnan, you have continued to deal successfully with your alcoholism, and have continued your involvement in the CityLife Church. You have continued to work, albeit as an accountant. As well, you have endeavoured to maximise your use of the resources available to you in prison. These efforts must be taken into account both in respect to the issue of delay and your prospects for rehabilitation. However, you gained employment with the complainant company by way of a ruse. You had prior criminal convictions for dishonesty while you were employed as an accountant at the time that you applied to be employed by the victim company. You failed to disclose this fact to the complainant company’s principal. Further, you talked him out of having a police check conducted in respect of you as part of the selection process for your employment as the company’s accountant. (See the evidence of John Christoffelz before the second jury that caused that trial to abort).
27 Your antecedents, when combined with the circumstances surrounding your employment, and those of the instant offending, persuade me that your prospects for rehabilitation are poor, and that you are likely to reoffend in a similar way if ever placed in a position of trust in respect of moneys.
28 Mr Dailakis, you are 54 years of age. You were born in Greece and migrated to Australia when you were about eight years of age. You were raised in the Richmond area and attended Richmond and Collingwood Primary Schools, as well as Fitzroy High School, where you completed Year 12. Your family moved to Thornbury, and after leaving school you worked at GMH. Your childhood was a happy one and you understood that you were loved by each of your family members.
29 Shortly after commencing work you travelled to Greece to complete that country’s national military service. Upon return to Australia you worked as a panel-beater and eventually operated a panel-beating business.
30 After being released from prison following the sentence imposed on you in 1999 you became a concreter, and at the time of your offending you worked for three municipalities, including Brimbank Council, doing landscaping work and the like. Your landscaping/concreting business was very successful.
31 You have never had an alcohol or drug issue. Tendered as Exhibit 1 on the plea was a report from Mr Crewdson, psychologist, dated 17 March 2017. Mr Crewdson considered that your mental state upon examination was unremarkable.
32 You maintained your innocence to Mr Crewdson, and whilst from time to time in conference with him you became upset, this centred upon your relationships with your family members. Tendered as Exhibit 2 was a bundle of references. Of particular relevance is the reference from your sister, Maria, who wrote that you are devoted to your partner and your son, Jordan, who suffers from Asperger’s syndrome. You are devoted to your elderly parents, who are in ill health. You are sorry for the trouble that you have caused them. Your other referees write that you are loyal, generous, kind, and a gentle-natured person.
33 Of prominence in Mr Crewdson’s report is your history of gambling. However, on the basis of the evidence called at trial, and your plea of not guilty, and the maintenance of your innocence to Mr Crewdson, I do not see the relevance of your gambling problem in the exercise of my sentencing discretion.
34 Since the instant offending you have worked as a labourer. It would appear that over time your gambling has contributed to the loss of your family home and your partner, Victoria’s, apartment. Your partner’s attitude to you is that she will remain amicable towards you for the sake of your child.
35
Mr Crewdson opined that you suffered from depression and anxiety at the time of your offending. I have some difficulty in accepting this opinion, formed from testing in 2017, as it relates to some seven or eight years prior. It is plain that you are not functioning psychologically well at the moment because of your present position, however, not much further can be usefully gleaned from
Mr Crewdson’s report. I regard your prospects of rehabilitation in respect to dishonesty offences as poor, particularly in light of your antecedents.
36 Mr Brosnan and Mr Dailakis, your offending is a serious example of offending of its kind. Over a period of in excess of 12 months you stole in the order of $1.9m from MCA Insurance Brokers. In respect to you, Mr Brosnan, 12 of the 42 charges on the indictment are continuing criminal enterprise offences, and in respect of you, Mr Dailakis, 11 such charges are of that class.
37 Mr Brosnan, your conduct constitutes an appalling breach of trust. You have relevant prior convictions committed as an accountant, and in breach of trust as an accountant. You exploited an electronic transfer system that you installed into the business that employed you. You relied upon the trust that others reposed in you in order to commit your offending. General and specific deterrence have particular application to you in the exercise of my sentencing discretion.
38 Mr Dailakis, you were the recipient of the funds stolen by Mr Brosnan. By its verdict the jury were satisfied that the offences on the indictment were committed by way of a joint criminal enterprise. The evidence at trial established that you were acquainted with Mr Brosnan and were a client of the victim company. I am satisfied to the appropriate standard that you knew exactly where the funds that entered into your various accounts came from, and who was the author of the thefts at their source; being MCA Insurance Brokers. You, Mr Dailakis, need to be specifically deterred from committing crimes of dishonesty, and you are an appropriate vehicle for the application of the sentencing principle of general deterrence.
39 In respect of each of you just punishment and public denunciation of your conduct must play an important role in the exercise of my sentencing discretion.
40 By these sentences I must denounce your conduct. I must punish you and deter you and others from committing crimes of the same or similar kind. I must look to your rehabilitation.
41 Taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents, and endeavouring to produce sentences which reflect and promote the purposes of sentencing in a manner appropriate to you, I sentence each of you as follows:
· On Charge 1 – 18 months’ imprisonment;
· On Charge 2 – 18 months’ imprisonment;
· On Charge 3 – 12 months’ imprisonment;
· On Charge 4 – 6 months’ imprisonment;
· On Charge 5 – 12 months’ imprisonment;
· On Charge 6 – 18 months’ imprisonment;
· On Charge 7 – 6 months’ imprisonment;
· On Charge 8 – 12 months’ imprisonment;
· On Charge 9 – 12 months’ imprisonment;
· On Charge 10 – 6 months’ imprisonment;
· On Charge 11 – 6 months’ imprisonment;
· On Charge 12 – 6 months’ imprisonment;
· On Charge 13 – 6 months’ imprisonment;
· On Charge 14 – 12 months’ imprisonment;
· On Charge 15 – 3 years’ imprisonment;
· On Charge 16 – 3 years’ imprisonment;
· On Charge 17 – 3 years’ imprisonment;
· On Charge 18 – 6 months’ imprisonment;
· On Charge 19 – 6 months’ imprisonment;
· On Charge 20 – 6 months’ imprisonment;
· On Charge 21 – 3 years’ imprisonment;
· On Charge 22 – 12 months’ imprisonment;
· On Charge 23 – 12 months’ imprisonment;
· On Charge 24 – 12 months’ imprisonment;
· On Charge 25 – 12 months’ imprisonment;
· On Charge 26 – 6 months’ imprisonment;
· On Charge 27 – 12 months’ imprisonment;
· On Charge 28 – 12 months’ imprisonment;
· On Charge 29 – 18 months’ imprisonment;
· On Charge 30 – 18 months’ imprisonment;
· On Charge 31 – 12 months’ imprisonment;
· On Charge 32 – 3 years’ imprisonment;
· On Charge 33 – 12 months’ imprisonment;
· On Charge 34 – 18 months’ imprisonment;
· On Charge 35 – 12 months’ imprisonment;
· On Charge 36 – 12 months’ imprisonment;
· On Charge 37 I sentence you, Mr Brosnan, to 18 months’ imprisonment;
· On Charge 38 I sentence each of you to 6 months’ imprisonment;
· On Charge 39 I sentence you, Mr Brosnan, to 6 months’ imprisonment;
· On Charge 40 I sentence you, Mr Brosnan, to 6 months’ imprisonment;
· On Charge 41 I sentence each of you to 12 months’ imprisonment;
· And on Charge 42 I sentence you, Mr Brosnan, to 6 months’ imprisonment.
42 In respect of you, Mr Brosnan, I order that one month of the sentences imposed on Charges 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 18, 19, 20, 22, 23, 24, 25, 26, 27, 28, 31, 33, 35, 36, 38, 39, 40, 41 and 42, together with two months of the sentences imposed on Charges 1, 2, 6, 29, 30, 34 and 37, together with four months of the sentences imposed on Charges 15, 17, 21 and 32, be served cumulatively upon each other and upon the sentence imposed on Charge 16.
43 Mr Brosnan, this results in a total effective sentence of eight years’ imprisonment, and I fix a period of six years’ imprisonment as the period of time that you must serve before you will become eligible for parole.
44 I declare that you have spent 70 days by way of pre-sentence detention, not including today.
45 In respect of you, Mr Dailakis, I order that one month of the sentences imposed on Charges 3, 4, 5, 7, 8, 9, 10, 11 12, 13, 14, 18, 19, 20, 22, 23, 24, 25, 26, 27, 28, 31, 33, 35, 36, 38 and 41, together with two months of the sentences imposed upon Charges 1, 2, 6, 29, 30 and 34, together with four months of the sentences imposed on Charges 15, 17, 21 and 32, be served cumulatively upon each other and upon the sentence imposed on Charge 16.
46 This results in a total effective sentence of seven years and seven months’ imprisonment, and I fix the period of five years and seven months’ imprisonment as being the period of imprisonment that you must serve before you will become eligible for parole.
47 I declare that you have spent 70 days by way of pre-sentence detention, not including today.
48 I direct that it be entered in the records of the court that you have each been sentenced in respect of a continuing criminal enterprise offence in respect of Charges 1, 2, 6, 15, 16, 17, 21, 29, 30, 32 and 34, and in respect to Mr Brosnan, the additional Charge 37.
49 Counsel, take your time and check those figures. They’ve been checked re-checked, but it doesn't mean they don't need to be re-checked again.
50 MR PETERS: I've summated Mr Dailakis' years and I agree with Your Honour's.
51 HIS HONOUR: Yes. Ms Cameron?
52 MS CAMERON: As with Mr Brosnan's, Your Honour.
53 MR GIBBS: Likewise, Your Honour.
54 HIS HONOUR: Thank you. Now, in respect to the ancillary orders I hand down three copies in respect to the compensation orders. Mr Brosnan, would you please stand?
55 The Crown has made application for a forensic sample and I have ordered that a forensic sample be taken from you by way of a scraping from the mouth. I have made this order because the seriousness of the circumstances of the offending warrants the order, your prior convictions are such as to warrant the making of the order, and the granting of the order is in the public interest. I must inform you that if, at the time of request, you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force then the sample to be taken will be a blood sample, and police may use reasonable force to enable that forensic procedure to be conducted. I hand down three copies of that order. You may be seated, Mr Brosnan.
56 Mr Dailakis, would you please stand? The Crown have made application, likewise, for a forensic sample in respect of you. I have ordered that a scraping from your mouth be taken by way of a forensic sample. I have done so because the seriousness of the circumstances of your offending warrants the making of the order, that your prior convictions are such as to warrant the making of the order, and that the granting of the order is in the public interest. I must inform you that if you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force then the sample to be taken will be a blood sample, and police may use reasonable force to enable that forensic procedure to be conducted. I hand down three copies of that order.
57 Are there any other matters to be attended to?
58 MR GIBBS: No, Your Honour.
59 MR PETERS: No, Your Honour.
60 HIS HONOUR: Remove the prisoners. I'd like to thank counsel for their assistance in the matter. I'll stand down till 10.30.
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