Director of Public Prosecutions v Brown

[2016] VCC 1193

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-00547

DIRECTOR OF PUBLIC PROSECUTIONS

v

SANDRA BROWN

---

JUDGE:	HIS HONOUR JUDGE STUART
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	17 August 2016
CASE MAY BE CITED AS:	DPP v Brown
MEDIUM NEUTRAL CITATION:	[2016] VCC 1193

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Duckett
For the Accused	Ms D. McCann

Pages 1 - 14

 

 

HIS HONOUR:

1Sandra Lee Brown, you have pleaded guilty to seven charges of obtaining property by deception.  The maximum penalty for that charge is ten years imprisonment.  Each of the seven charges are rolled up charges and are broken into calendar year dates. 

2Your offending commenced on 6 April 2009 and continued for a period of almost six years to 13 April 2015.  During the course of this offending you were between 58 to 64 years of age - you are currently 65 years old.  You come before the court with no prior criminal history whatsoever and you have not committed any offending since.

3The circumstances of offending are sent out in Exhibit 1, summary of prosecution opening, and I draw heavily from that opening for my purposes.  The victim operated a clothing import company called R Jay Pty. Ltd., the managing director being a Steven Scheuer who operated from the business address at 75 Gipps Street, Collingwood. 

4You commenced with that company as a credit controller on 8 November 2004.  Your employment duties were that you were responsible for all matters relating to the financial functioning of the business, including daily banking, account reconciliation, credit control and debt control.  You reported directly to the financial controller, Ms Bee Lim and Mr Scheuer.  You were a trusted employee;  it was you who would pick up the mail, keeping all cheques but passing on the rest of the mail to Ms Lim. 

5The company eventually closed its business on 30 June 2015.  You had, by that time, been paid out all of your entitlements but were asked to continue in order to, among other things, collect any outstanding moneys from debtors.  The debt as listed by you as at 23 September 2015 totalled a purported sum of $84,223.97.  This was not a true amount.  It appears that that sum was used by you in order to hide at least some of your criminal activity. 

6You realised that upon the closing of the business your fraudulent activities would be discovered.  Ms Lim had asked you to hand over all outstanding debtors but you kept delaying that exercise.  Eventually, on 23 September 2015, Ms Lim told you that you needed to sit down with Mr Scheuer and do a formal handover together.  That day you wrote a letter disclosing what you had done and left it in your desk drawer with your set of office keys.  You left the office and never returned, providing various excuses to Ms Lim for that absence.  In the end Ms Lim went to your desk to look for the records that she needed in order to establish the total amount of the outstanding debts.

7It is there that she discovered the letter that you had left, which became Exhibit 5. It reads:

"Dear Steven

It is with sincere regret that I advise you that the outstanding debt as listing is far from accurate. 

I have been stealing from you for some time now as I developed a serious gambling problem. 

The bolded debts are those with Kearley Lewis, all other have paid. 

I have paid back as much as I could but it doesn't come anywhere close. 

I am unable to pay this debt and will filing for bankruptcy as I have no assets or funds, my addiction has taken everything. 

I haven't been able to apply for any jobs knowing full well that I'm unemployable. 

I don't each much which has caused me to lose much weight and don’t sleep at night and tend to spend much of the day in bed waking up with anxiety attacks. 

I have been preparing myself for imprisonment, which causes even more anxiety. 

You have placed so much trust in me and I have repaid you with this. 

Ever since the company closed on 30/6, I would say to myself every morning I will tell Steven today but every time I just couldn't do it and now that the end is here I can't even face you.  Even today I thought I could let Bee know but again, I couldn't do it as I have let her down as well. 

I'm not going anywhere and intend to face whatever comes because I am a bad person who deserves the worse for betraying your trust. 

My biggest regret is that all this comes at a time of great sadness to you personally.”

8That contrite letter was followed up by a text message which was sent by you on 9 October 2015, it became Exhibit 6, in which you wrote:

"Sandra Brown

I know how angry you would have been after reading my note and justifiably so and I am sure after more thought, even more so today.  I'm sending this text as emotionally I don't know how I will be face to face when I come in, yet I know I need to do it.  My nerves are shot.  Combined with how ill I've been lately to the point where I don’t care whether I live or die. 

I haven't had the strength to tell my family & have been distancing myself as much as possible from everyone.  I know that Bee has probably know for a little while but I couldn’t bring myself to speak with her.  I prepared a text Wednesday but couldn’t bring myself to press the send button.  I knew that you would be back in yesterday & would deal with me. 

I will face the consequences of my actions & deserve to go to prison for what I've done to you, which is probably the best option for me as I have no way of paying you back. 

I'm such a disappointment to everyone.  I'm on my way shortly."

9The methods by which you achieved your aims were simple.  In one class of cases, you altered cheques received from debtors that had arrived at the office, made out to RJAY Pty Ltd or RJ, more accurately, J-A-Y.  You utilised the "R" to make that into a "Mrs", adding the letters "M" and "S" and you altered the "JAY" to "SAN" to form the first three letters of your name, "Sandra Brown".  The letters that had been made out to the company became cheques made out to you, personally, as exampled in Exhibit 3 which come from pp.517 and 518. 

10You also had access to blank cheques that had regularly been provided by debtors for filling out to the credit of the company. Upon receipt of these cheques, you simply made them out to yourself as exampled in Exhibit 4, pp.519 and 520. As I remarked during the course of plea, "What could possibly go wrong with such a system?" 

11Knowing that your fraud would be discovered you made a number of payments totalling $42,983.94 and later further payments totalling $2835.42 and further payments totalling $2229.32 and thus the total amount repaid was $48,048.68.  In total, over the six year period that I have averted to, you had altered payment details on cheques for your own benefit, amounting to $210,852.67 and it is that sum in total which is represented by the seven charges of obtaining property by deception on the indictment to which you have pleaded guilty. 

12The matter was eventually reported to police and by arrangement on
4 December 2015 you attended the Richmond police station where you were interviewed in relation to what you had done.  You made full admissions to your criminal conduct though you were uncertain about exact amounts that you had taken, which is understandable given the duration over which you engaged in this fraud.  You further stated that you were using the money in gambling venues, at the pokies and that you sometimes won and that you had been gambling for a long time though you had never had money to gamble to this extent before. 

13I am satisfied in all the circumstances that you cooperated as much as you could with the police investigation.  The deficiencies in any aspect of your cooperation I simply attribute to your own inability to calculate the extent of your fraud.  Thus, this is a case where despite the fact that you realised your fraud were discovered, you did endeavour to make recompense to the extent to which you could.  You alerted your employer and Ms Lim to your fraud and that it was a considerable fraud. 

14In the victim impact statement of Steven Scheuer, he writes:

"The theft of funds by Sandra by altering cheques made out to R-Jay saddened me as I held Sandra in very high regard as an excellent and hard working employee of over ten years.  Not once in the entire time Sandra worked for me did I ever think to question her over her accounts as I thought she kept a meticulous and organised set of accounts for which I was proud that were in good order.  As an employee Sandra was well liked and respected by other staff members and our customers.  As a staff member I considered her dependable and loyal.  I still feel today, not angry, but that she needs help and support regardless of what she has done."

15As to the financial impact of your criminal conduct, he writes:

"Unquestionably the moneys taken from R-Jay have had a financial impact, in terms of less profitability and tighter cash flows, the moneys taken would have been beneficial to the long term sustainability of the company but given that the events occurred over a considerable period of time the effect was less severe than if it had been in a short time. In the final few months the company traded Sandra made efforts to repay some of the money she had taken through the books of account, this was unknown by me and only discovered later when she admitted what she had done."

16Finally, he concludes:

"I have not suffered emotionally, I do not bear grudges from this but look upon these events as I have said as a real pity and shame for everyone concerned, especially to finish up like this.  I feel life must go on for all of us.  I believe that given the right help and support Sandra will also be able to grow from this, I would like to see this happen."

17This victim impact statement is magnanimous in all its facets but it does highlight that you only achieved what you did because you were indeed a trusted employee who, on the face, kept a meticulous and organised set of accounts. 

18In the The Queen v Grossi [2008] VSCA 51, in judgment of Redlich JA, His Honour at paragraph 56 observed:

Properly analysed, there is in my view no tension between the principle explained in Verdins and those authorities which have dealt with gambling addiction.  Evidence may establish that an offender suffers from an impulse control disorder in the form of pathological gambling listed in DSM-IV-TR, the essential feature of which is ‘persistent and recurrent maladaptive gambling behaviour that disrupts personal family or vocational pursuits.’  The relevance of the disorder to the sentence to be imposed, is then to be assessed in accordance with the principles restated in Verdins.  That assessment will generally lead to the conclusion that the presence of a gambling addiction should not, on that ground alone, result in any appreciable moderation of the sentence.  There are a number of reasons why that will be so.  Firstly in most cases, the nature and severity of the symptoms of the disorder, considered in conjunction with the type and circumstances of the offending, will not warrant a reduction in moral culpability or any moderation of general deterrence.  Secondly, it will frequently be the case that crimes associated with gambling addiction will have been repeated and extended over a protracted period.  The long term chase to recoup losses is characteristic of those with such a disorder.  Thirdly, in cases involving dishonesty, the crimes will commonly be sophisticated, devious, and the result of careful planning.  Fourthly, the gravity of such offences, if there is a breach of trust or confidence, will commonly attract an increased penalty making such offences more appropriate vehicles for general deterrence.  Fifthly, when offences of this nature are committed over extended periods, the prominent hypothesis will be that the offender has had a degree of choice which they have continued to exercise as to how they finance their addiction.  This has often provided a reason for a general reluctance to temper the weight given to general deterrence or to reduce moral culpability because an offender has found it difficult to control their gambling obsession.  Finally, and perhaps most importantly, the nexus of the addiction to the crime will often be unsubstantiated.  The disorder will not generally be directly connected to the commission of the crime, the addiction providing only a motive and explanation for its commission.  Hence, by contrast to a mental condition that impairs an offender’s judgment at the time of the offence, such addiction will generally be viewed as only indirectly responsible for the offending conduct.

19Whilst your offending was unsophisticated in its manner of execution, it did not have to be sophisticated, for it relied upon your position of trust in order for you to do what you did and that offending not to be detected.  It is plain that the regularity of the offending, as seen in the schedules attached to the indictment, speaks to a repeated series of decisions by you to engage in this conduct. 

20Indeed, in general, each of the cheques are in relatively large sums of money, generally over $1000 and involve tens of thousands of dollars for any particular full year.  It is not put by your counsel, Ms McCann, that the Verdins principles are applicable to you as clearly they are not. 

21Your moral culpability, just as with your legal culpability, is not in any way reduced by dent of your gambling addiction.  You chose to engage in this offending for a period of no less than six years.  At any point in time you could have stopped but did not.  You only stopped when the company business was being wound up, though it is to your credit you did stop and you endeavoured to make repayment to the extent to which you could. 

22In DPP v Bulfin [1998] 4 VR 114, at pp.131 to 132, Charles JA stated the following:

The motivation to engage in conduct of the kind here under consideration may spring from many sources:  a position of trust and the easy ability to abuse it; the enormous rewards that may be available; a position of high authority in some substantial enterprise and the offender's assumption that discovery or proof of wrongdoing can be avoided; greed or the burden of funding an extravagant lifestyle; weakness in succumbing to outside pressures to use deceitful means for business ends; and personal or corporate ambition, to name but a few.  Whatever the motivation, offences of the kind here in question almost invariably involve a carefully calculated course of conduct over a long period, repeated deliberate acts of dishonesty, substantial amounts of money, and, frequently, losses (often tragic in their impact) to large numbers of small investors.  The offender often holds a position making it possible, or has the ability, to disguise or camouflage the conduct in question.  Detection is difficult, the investigation of the crime usually lengthy and very expensive, and the problems of trial and proof will frequently be extreme.”

23His Honour continues:

The result of such considerations, in my view, is that the element of general deterrence will usually carry particular significance in sentencing for crimes such as the present, both in relation to the total effective sentence and the non-parole period; together with a requirement for strong denunciation by the sentencing court.

24It is also plain that the scenario being dealt by His Honour is very different from that before me but many of the considerations that His Honour averted to are relevant in this case.  In a case which is of similarity to the case before me, is Bellizia v The Queen [2016] VSCA 21, in which Santamaria J, with whom Whelan JA agreed, save for subsequent offending in that case, dismissed an appeal against sentence; a sentence of 15 months' imprisonment with a community correction order of 12 months, where the applicant had obtained $265,509.82 during the course of her offending.

25I have had the benefit of a thorough and most helpful plea presented by your counsel, Ms McCann.  During the course of it, she tendered a series of documents which include a letter from your sister, Rhonda Brown, with whom you have been living since December 2015.  In it, she refers to the fact that you were ashamed and embarrassed and extremely remorseful for what you had done. 

26You have, as a result of the moneys that you repaid to the company, no superannuation.  You have no prospects of re-employment and you are on an age pension with other liabilities amounting to some $81,961.  Since this offending you have done everything you can to address your gambling addiction and have ceased gambling.  You have received counselling up until 1 July this year on no less than 20 occasions. 

27In the psychological report from Melbourne Counselling Service, prepared by Ravi Lyer, that became Exhibit SB5, she writes:

"Over the course of counselling, Ms Brown has demonstrated a clear motivation to address her gambling problem and the historical events that might inform it.  Ms Brown has approached counselling with maturity and preparedness to discuss events that few others would be aware of."

28I have also received as Exhibit SB1, a psychological report of Elle Gianvanni dated 1 August 2016.  In the summary of clinical findings, the author writes:

"Ms Brown's depressive and anxiety symptoms appear to have commenced in her teens, early 20s, although it is possible that she might have experienced some distress even prior to that given her reported low self-esteem and self-confidence.  To date, despite attending 23 individual counselling sessions with a counsellor, her psychological distress has not been addressed nor has it be alleviated.  Although Ms Brown indicated that her psychosymptomatology has worsened in context of her upcoming court hearing, based on available information available to date, it appears that even prior to a month ago this was experienced within the severe range.  Clinically, to date Ms Brown presented with emotional and psychological disturbances as well as behavioural patterns that are consistent with a diagnosis of Persistent Depressive Disorder (Dysthymia) (300.4) and Gambling Disorder (312.31), according to the DSM-5.

29During the course of the counselling, she noted that at paragraph 5.5:

"Ms Brown had also indicated that one of the appealing factors about gambling was the ‘social aspect and contact’ she had with other habitual gamblers; she attended the same two pokies venues ‘for years’ and therefore she met and ‘kept seeing’ regular gamblers ‘pretty much every day’ (‘I had no friends or life outside gambling’)."

30In paragraph 5.6, the author continues:

"Ms Brown indicated her gambling significantly increased after she was notified that the business was closing down; this occurred in January 2015.  She reported the following information regarding this: 'I knew at the end of the day I was going to get caught but it was kinda like I was hoping to win the TattsLotto as you do when you are a gambler and I would pay all back and there would be no harm done…  I was gambling more to try to win more so I could pay it back before the business closed down but it go to the stage where it was closing down and I knew I couldn't hide it anymore…  I couldn't repay the debts…  I tried so hard but I couldn't.'"

31At paragraph 6.2, the author notes:

"Ms Brown appeared to be sincerely apologetic and remorseful of her wrongdoing; she repeated on a number of occasions during the clinical interview, that she ‘has no excuses for her behaviour and committed an inexcusable betrayal of trust against [her] former employer." 

32You are the second of six children.  You left school at form 5 and you have been employed ever since, initially as a receptionist, later as a credit manager until your employment with the firm, R-Jay Pty. Ltd.  It is fair to say that your life has been one of an isolate.  This became more so as your gambling addiction came to dominate your life outside your employment. 

33You are entitled to call upon your excellent prior history.  You have contributed to society in work in particular and as I have noted, and as I have taken into account, you have no criminal history whatsoever other than in relation to these matters.  I am satisfied that you are truly remorseful and insightful and that you have done everything you can in order to rehabilitate yourself to this point in time. 

34You have pleaded guilty and I accept that those please of guilty are of significance in two ways.  First, it is further evidence of your remorse and; secondly, the utility of your pleas of guilty, avoiding a contested committal hearing and a trial which, doubtless, would have been a complex one.

35It is well understood that offending of this kind is difficult to detect, investigate and prosecute and I would have estimated that had you wished to run a trial, the trial would have taken in the order of some three to four weeks to complete. 

36Because of your endeavours to rehabilitate yourself and because I am satisfied that the cause for your behaviour has been addressed by you, I do not believe that in sentencing you protection to the community is of any moment whatsoever, although deterring you from further offending is still of some, though little, moment in the circumstances in which I have endeavoured to articulate. 

37However, I must denounce your conduct.  It is all too easy for employees to exploit their position of trust in order to financially advance themselves for whatever reason.  In addition, just punishment must be taken into account but the principle sentencing factor is deterrence of others who may be like-minded to commit such offences as you have done. 

38Taking all these matters into account, I sentence you to be imprisoned for a period of 12 months.  If you consent, I will release you on an 18 month community corrections order with conditions that you perform community work over a period of 18 months, you receive treatment and rehabilitation in relation to mental health and programs to reduce re-offending and that you be under supervision for that period of 18 months once you have completed your
12 months' imprisonment.  Are you prepared to enter into that community corrections order?

39OFFENDER:  I am, yes.

40HIS HONOUR: I declare that there is no pre-sentence detention and, further, pursuant to the provisions of s.6AAA of the Sentencing Act, the sentence I would otherwise have imposed but for the pleas of guilty would have been a period of three years with a minimum of two years' imprisonment.  Take a seat, Ms Brown, the documents will now be prepared.

41While that is being done, are there any matters that need correction?  Are there any matters that need correction, Ms Duckett, or any omissions that ought to have been addressed by me?

42MR McCANN:  No, Your Honour.

43HIS HONOUR:  Thank you.  Difficult to say what is missing but if there is something obvious, it should be stated.

44MS DUCKETT:  Not at all, Your Honour, I was just commenting - I was just commenting to Ms McCann that in terms of the community corrections order, my understanding at the moment currently is that the wording on it should say "within two days of being released" rather than a given date because what actually ‑ ‑ ‑

45HIS HONOUR:  I think it does.

46MS DUCKETT:  It does already say that, I have just ‑ ‑ ‑

47HIS HONOUR:  Where does it say that, Mr Brown?

48MS DUCKETT:  I have just returned from Warrnambool and we have just had problems with a lot of the orders having two days of release which has been unable to be complied with.

49HIS HONOUR:  No, it says "You must attend at MJC Collingwood Community Correction Service with two clear working days upon completion of imprisonment/detention time."

50MS DUCKETT:  Excellent, thank you, thank you.

51HIS HONOUR:  That is what is generated automatically, isn't it, Ms Brown?

52MS DUCKETT:  Must be this court then is generating that automatically, the other jurisdictions are complicating matters, so obviously ‑ ‑ ‑

53HIS HONOUR:  Other jurisdictions in the Magistrates' Court?

54MS DUCKETT:  Yes, yes, obviously your staff are ahead of them as such.

55HIS HONOUR:  Well, only because it is the default setting, do not give me too much credit, Ms Duckett.  Let me just check the draft order.  Yes, that draft order.  Now, the compensation order - what is missing, sorry ‑ ‑ ‑

56MS DUCKETT:  Yes, Your Honour, maybe - I seem to have two copies of the forensic sample order here.  I do not know what was handed up and printed off.

57HIS HONOUR:  Well that is, as I say ‑ ‑ ‑

58MS DUCKETT:  Are you missing one, perhaps?

59HIS HONOUR:  That is what I thought.

60MS DUCKETT:  Yes.

61HIS HONOUR:  Because normally it is in duplicate.

62MS DUCKETT:  There is three, yes.

63HIS HONOUR:  Can you have a look - I will tell you what, give them back to Ms Duckett.

64MS DUCKETT:  The one with the - the compensation, that is the three orders.

65HIS HONOUR:  Mr Brown, can you give everything back to Ms Duckett?

66MS DUCKETT:  Thank you.  The compensation order is the one with the red marking on it where I have just amended that total to read 162803.29.  Yes, it is just the manner in which they have been printed off and compiled, Your Honour.  What I will hand up now - you have already signed one and ‑ ‑ ‑ ‑

67HIS HONOUR:  I think I have signed two.

68MS DUCKETT:  You have signed a non-custodial.

69HIS HONOUR:  All right, well hand me back what I ‑ ‑ ‑

70MS DUCKETT:  Because they were just on top of each other, so I simply have here - I will hand up ‑ ‑ ‑

71HIS HONOUR:  What do I do with these?

72MS DUCKETT:  They are the three custodial ones, one of which you have signed, the other two will need to be signed.

73HIS HONOUR:  All right.

74MS DUCKETT:  I have the non-custodial ones here.

75HIS HONOUR:  Hand everything else back.

76MS DUCKETT:  I will hand that to your tipstaff and perhaps they could be disposed of in ‑ ‑ ‑

77HIS HONOUR:  Who will now destroy it all.

78MS DUCKETT:  Yes, exactly.  And that was the second big one that you signed so this is the compensation.

79HIS HONOUR:  Yes.  Yes, provide that counsel to check.  Just provide a copy to Ms Brown, I think.  Is there anything further, Ms Duckett?

80MS DUCKETT:  They are the matters in relation to this hearing, Your Honour, thank you.

81HIS HONOUR:  Ms McCann?

82MS McCANN:  No, Your Honour.

83HIS HONOUR:  As I say, thank you both for your assistance.  I will stand down for the court to assemble for the plea to follow.

‑ ‑ ‑