Director of Public Prosecutions v Browne
[2024] VCC 1131
•30 July 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00151
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MELISSA BROWNE |
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JUDGE: | HER HONOUR JUDGE HAWKINS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 April 2024 | |
DATE OF SENTENCE: | 30 July 2024 | |
CASE MAY BE CITED AS: | DPP v Browne | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1131 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCING
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic).
Cases Cited:R v Verdins [2007] VSCA 102; Boulton v The Queen [2014] VSCA 342
Sentence: 18-month community correction order. S 6AAA declaration, two years’ imprisonment with a non-parole period of 15 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Tom Danos | Office of Public Prosecutions |
| For the Accused | John Lavery | Emma Turnbull Lawyers |
HER HONOUR:
1Melissa Browne, you have pleaded guilty to one ‘course of conduct’ charge of theft, which encapsulates a series of transactions amounting to a total sum of just under $60,000.
2The victim in this matter is your aunt, Ms Freda Velisha. At the time of offending[1] you were acting as a carer to her and her late husband. You would often take them to doctors’ appointments and run errands, such as paying bills.
[1]The details are set out in the Summary of Prosecution Opening dated 27 February 2024. You admitted the accuracy of this summary through your Counsel.
3Around October 2018, you suggested that your aunt allow you access to her online banking accounts to assist in paying bills on her behalf.
4Trusting you, Ms Velisha arranged to give you access to a number of bank accounts. She agreed for you to make various transfers in order to pay her bills. She did not agree for you to make any payments to yourself.
5Instead she often bought you gifts, such as shoes, clothing and jewellery to thank you for your efforts.
6Unbeknownst to Ms Velisha, and without her approval, you made a series of unauthorised transactions from her accounts into your own bank accounts.
7On 3 May 2019 you contacted NAB via telephone and purported to be your aunt. You stated your name and date of birth as that of Ms Velisha. You then changed the mobile number attached to the account to your own mobile number.
8On 24 October 2019, you made six separate transactions totalling $59,895 from the Velisha’s accounts into your own.
9Also on 25 October 2019, you withdrew $50,000 noted as addressed to ‘Brighton BMW’ from your account. The next day, you purchased a white 2019 BMW X3 Wagon[2] for the value of $63,895.
[2]Victorian Registration MBMSPT
10In the following days, Ms Velisha visited the NAB branch in Point Cook to withdraw some money. Upon seeing the balance of her accounts, Ms Velisha realised something was wrong, as the amounts seemed quite low.
11Ms Velisha met with the branch manager and explained that money was missing from her accounts. The following week, your aunt and late uncle attended the NAB branch in Port Melbourne. While there, they were asked whether they recognised the mobile number attached to their bank account. It was at this point that Ms Velisha and her husband realised that you had been stealing money from them.
12Freda Velisha has made a victim impact statement. She describes how she and her late husband “trusted Melissa with all our hearts”. Since learning of your “betrayal” she has lived with anxiety, depression and stress, compounded by the loss of her husband during this period. She has lost trust and suffered fractured relationships with family and friends.
13Ms Brown, you knew that your uncle and aunt were well off, having worked hard all of their lives to build up a prosperous business which they had recently sold. Your uncle was unwell and he and your aunt needed help. In their time of vulnerability they placed significant trust in you by giving you access to bank accounts containing substantial funds.
14Mr Lavery on your behalf conceded that your offending is serious. It carries a maximum penalty of 10 years imprisonment[3]. Mr Lavery however submitted that the circumstances of you having access to those accounts were complex. He submits that you had been involved in providing extensive assistance to Mr and Mrs Velisha on an unpaid basis, and also to their substance dependent son.
[3]S74(1) Crimes Act 1958
15Whilst your assistance was unpaid, you were recompensed for your efforts via regular, generous gifts. This recompense did not extend to helping yourself to the contents of their bank accounts. Given this significant breach of trust your offending must be viewed as serious, and the gravity of your offending mid-range.
16Your moral culpability is significantly reduced by the full restitution you have made to the victim, and by your personal circumstances upon which I will further elaborate below.
17Melissa Browne you were 46 at the time of your offending and are now 50. Your childhood was marred by exposure to domestic violence and sexual abuse. You had a difficult relationship with your mother. You continue to suffer chronic pain and arthritis as a result of a car accident when you were 18. Since this offending you have separated from the father of your two children aged 11 and 16. They remain in your care.
18You completed year 12 and worked in numerous administrative roles, until you ceased work after the birth of your youngest child. Both children experience mental health distress and receive support. Your son lives with ADHD. You now receive the Disability Support Pension as a result of your injuries and mental health difficulties.
19You report three admissions to mental health units after being charged with these offences. These were related to your subsequent distress.
20You deny any problematic use of alcohol or illicit substances, however you have a history of misuse of prescription pain medication.
21Forensic psychologist Laura Fleming[4] concludes that you are experiencing depression, Borderline Personality Disorder and Adjustment Disorder as a result of your childhood trauma. She notes that individuals with BPD can demonstrate extreme reactivity to interpersonal stresses which can impair their ability to exercise appropriate judgement, make calm and rational choices and think clearly. Ms Fleming opines that you were unable to maintain a healthy distance from family members when asked for support. Those poor skills in asserting appropriate boundaries may have caused you to feel that you deserved compensation for the assistance you provided to your aunt and uncle. Your lowered mood has placed you at risk of self-harm.
[4]Report dated 21 March 2024
22Ms Fleming is of the opinion that imprisonment would weigh more heavily upon you due to your poor mental health functioning, and due to your caring role for your two children. You are unlikely to receive the intensive psychotherapy you require in custody.
23Ms Fleming was incorrectly informed by your solicitors that you had no criminal history. This error was corrected and a supplementary report filed[5]. She assesses your risk of further offending as low moderate.
[5]Report dated 6 June 2024
24Your counsel properly conceded that the principles in Verdins’[6] case do not have strict application because the difficulties you would experience in custody largely relate to those arising from the care of your children. I do however accept that you would not be able to receive the psychological assistance you require in custody which would have a deleterious effect on your overall prospects of rehabilitation. I take that, and your childhood circumstances into account in a general sense.
[6]R v Verdins [2007] VSCA 102
25You have admitted your prior criminal history.[7] Whilst you have dishonesty priors they are now more than 20 years old, and are therefore of limited relevance.
[7]Exhibit A
26You pleaded guilty after the complainant had commenced giving her evidence at trial, and certain matters arose. Subsequently the Prosecution agreed to accept a plea offer you had made, prior to the initial trial listing. Your plea was of significant utilitarian benefit which I will take into account.
27You have pleaded guilty to a course of conduct charge. That is, a multiple series of thefts embraced in a single charge. I must sentence within the total maximum penalty for the charged offence, but take into account the totality of your offending.
28The Court of Appeal in the guideline judgement of Boulton v The Queen[8] made clear that a lengthy and targeted community corrections order can operate as a deterrent to an accused, and generally. Also, the punishment aspect of a community corrections order, via unpaid work, mandated programs and supervision, can meet the requirement of denunciation as well as deterrence to others. It has the unique capacity to punish and rehabilitate simultaneously, and is well suited to the competing sentencing considerations in your case.
[8][2014] VSCA 342
29Sentence in this matter was adjourned for you to make restitution to the victim. You have now fully repaid Ms Velisha the amount that you stole from her[9].
[9]ANZ receipt dated 1 July 2024
30In sentencing you I must have regard to a range of matters such as the seriousness of your offending, your culpability for it and your personal circumstances. I must balance the interests of the community in denouncing criminal conduct and deterring you and others from engaging in similar offending, with the interests the community clearly has in seeking to ensure as far as is possible, that offenders are rehabilitated and are reintegrated into society[10]. I must impose a sentence which is proportionate to the gravity of the offence, considering the circumstances. The sentence must be no more than is necessary to satisfy those various objectives of sentencing.
[10]In accordance with the purposes set out in s.5 Sentencing Act 1991
31In your case Ms Browne the need for general deterrence is moderated by your personal circumstances. Your plea of guilty, and repayment to the victim of the entire some encompassed by this charge are powerful mitigatory features.
32I have taken into account current sentencing practices for the offences to which you have pleaded guilty, and note that both Prosecution and Defence Counsel agree that a community corrections order without any period of imprisonment to serve is within the range of available sentencing dispositions.
Sentence
33Melissa Browne, on charge 1 you are convicted and sentenced to a Community Corrections Order of 18 months duration.
34The conditions of this order are:
(a) You must attend Werribee Community Corrections Service by Thursday 1 August 2024;
(b) You will be under the supervision of a Community Corrections Officer for 18 months, which means that you are required to be supervised, monitored and managed as directed;
(c) You must undergo assessment and treatment for mental health treatment as directed;
(d) You are required to perform 150 hours of unpaid community work as directed, over 18 months;
(e) I order that 80 hours of treatment and rehabilitation satisfactorily undertaken may be counted as hours of unpaid community work for the purposes of the unpaid community work condition;
(f) You must not commit an offence punishable by imprisonment during this order;
(g) You must not leave Victoria without permission of Community Corrections;
(h) You must let your Community Corrections Officer know within 2 clear days of changing address or a job;
(i) You must comply with any lawful direction given by a Community Corrections Officer that is necessary to ensure you comply with the order; and
(j) If you contravene this order by either committing further offences, or by failing to comply with the conditions then you can be brought back before this Court, fined and resentenced. That might mean you go to jail for these offences.
35You have indicated your oral consent to this order, which I direct to be entered onto the court record.
36Pursuant to section 6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty and been found guilty after trial, I would have sentenced you to a term of 2 years imprisonment with a non-parole period of 15 months.
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