Director of Public Prosecutions v Buckley

[2014] VCC 1870

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00978

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHARON MARGOT BUCKLEY

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	6 November 2014
DATE OF SENTENCE:	6 November 2014
CASE MAY BE CITED AS:	DPP v Buckley
MEDIUM NEUTRAL CITATION:	[2014] VCC 1870

REASONS FOR SENTENCE
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms R. Harper
For the Accused	Mr C. Watson

HIS HONOUR: 

1Sharon Margot Buckley, you have pleaded guilty to an indictment charging you with five separate offences of obtaining a financial advantage by deception between 1 May 2009 and 17 May 2013.  You have no prior convictions.  The maximum term of imprisonment for the offence of obtaining a financial advantage by deception is ten years imprisonment.

2The prosecution filed and read to the court an amended prosecution plea opening which is Exhibit A, and I incorporate that in its entirety into these reasons for sentence.  It was read this morning and I am not going to read it again.  It reveals, as was pointed out during the course of the plea hearing that during the period covered by the indictment you engaged in 123 dishonest transactions and thereby obtained from two separate employers a total of $503,272.13.

3The first three offences were discovered by your employer in mid-September 2011.   You lost your job, immediately admitted your conduct, agreed to repay the money and you set about repaying the money.  The total sum involved was a little over $288,000 after taking into account offsets to reflect your employee entitlements.

4During the next several months you paid off that amount of money.  You were forced to sell the house you jointly owned with your former husband and you also received family assistance.  However you were able to obtain another job in late 2011 which enabled you to engage in further offending conduct.

5It seems that you were given a good deal of responsibility.   Trust was placed in you and you abused that trust in a substantial way, committing the further two offences involving a total of $167,214.14.  A total of 70 transactions were involved in that offending conduct which occurred between 2 March 2012 and 17 May 2013.

6As your counsel readily accepted on your behalf, as he was bound to, they were offences that involved significant breaches of trust and the fact that you committed the offences concerned with Charges 4 and 5 at a time after your offending in relation to Charges 1 to 3 had been discovered and during a period when you were aware that there was a prospect that you may be prosecuted for those offences, you engaged in the offending conduct the subject of Charges 4 and 5.

7It is conceded that that is an aggravating feature of this series of offences.  Your counsel provided me with a very helpful outline of submissions and personal chronology, together with a psychological report from a Mr Bob Ives which is a thorough analysis of much of the plea material that was presented on your behalf, as well as involving his own personal consultations with you on two separate occasions of two hours each.

8In addition I was provided with a letter from a treating psychologist, Ms Garcia, a letter from your general practitioner, Dr Hoare, and character references from your brother, Michael Smithwick, from your former husband, Shaun Buckley, and from your friend, Ms McAllister.

9The report from Mr Ives, the letter from Ms Garcia and the letter from Dr Hoare, show that you have been exhibiting symptoms of anxiety and depression of varying degrees of severity for a number of years.  Mr Ives also diagnoses a gambling addiction and he offers the opinion that your gambling addiction, coupled with the health problems identified by Dr Hoare, and your symptoms of anxiety and depression, combined to reduce your moral culpability.

10There have been a number of cases which have come before the appellate courts in Australia where the degree to which gambling addiction amounts to a mitigating factor in cases such as this has been the subject of debate.   The balance of authority suggests that it is rarely the case that gambling addiction alone would amount to a mitigating circumstance.

11However it is put that when combined with the other mental impairments and the other physical issues spoken of by Dr Hoare all of those factors operate to reduce your moral culpability.  The prosecution submitted on the other hand that the gambling addiction provides no more than a basis to explain your conduct and does not in itself add significantly at all to the mental impairments that bear upon moral culpability.

12I am inclined to the view that the question of your moral culpability can best be gauged having regard not only to your offending conduct, but in taking into account the depression and anxiety, coupled with the hormonal issues arising from menopause that were operating during the period of your offending.

13As was submitted by the prosecution those matters may fairly be regarded as bearing upon the issues of moral culpability and the application of the principle of general deterrence to sensibly modify the sentence that might otherwise have been appropriate.

14It was also conceded by the prosecution, although not dealt with directly in the psychological reports, that as a matter of common sense your anxiety and depressive conditions are likely to make your period of incarceration more difficult for you to bear than for a person who did not have those mental impairments.   It is conceded by the prosecution that I should modify the sentence on that basis also.

15You come from a good background.  You are a person with a very strong work ethic.  You have loyal family and friends.   You have been a stepmother and are still very well regarded by your former husband as well as your family and friends.  You have no prior convictions.   That does not seem to be surprising having regard to the character references put forward on your behalf.

16Clearly you have many good qualities which would suggest that this sort of offending is wholly out of character.  It seems to me sensible to conclude that your gambling habit, gambling addiction if you like, does give a substantial reason for your engaging in this conduct.  In my opinion it does not substantially, if at all, mitigate the offending in itself, but it seems to me that when you link in the mental impairments about which I have spoken then the picture is one of a person who at the time of the offending was at a very low ebb and your capacity to control your impulses was significantly reduced.

17Your counsel put forward a number of matters which I need to take into account in assessing an appropriate sentence.  He conceded that given the serious breaches of trust, given the amount of money involved and the period during which you offended and particularly the fact that you engaged in a second series of offences at a time after you were caught in relation to the first series of offending, a term of imprisonment was inevitable.  He relied upon your plea of guilty and the early stage at which you indicated your plea of guilty.  That has to be taken into account in reduction of sentence.  You are entitled to the credit for saving the state the cost and inconvenience of a trial and the witnesses the inconvenience of having to give evidence, and for facilitating the administration of justice.

18He also submitted that your pleas of guilty and your admissions were consistent with remorse and that much of your other conduct since the offending came to light is consistent with remorse, including your endeavours to repay the first of your victims and your efforts to rehabilitate yourself, seeking medical and psychological advice and treatment and various expressions of remorse to friends and family, all seemed to indicate that you are genuinely remorseful.

19I have no doubt that those around you thought you were remorseful after the first offending conduct came to light.  That may be so.   You nevertheless engaged in the second round of offending conduct.  I have no doubt that having been caught for that you are genuinely remorseful for your overall offending.

20The fall from grace for you has been dramatic.  You have let down family and friends.  They were surprised beyond words when they discovered what you had been involved in.  I have no doubt that you are now genuinely remorseful.  However your rehabilitation in terms of being able to stay out of trouble in the future will depend very much upon your ability to get on top of your psychological issues and a gambling addiction which can be very difficult to cure, as I understand it.

21Your prospects of staying out of trouble in the future will depend very much on your capacity to cope with those issues.  It will not be easy for you once you have completed your sentence to integrate back into the community.  I have no doubt that you will seek work and if you are fortunate enough to obtain work that you will work extremely hard to earn an honest living and stay out of trouble, but it will be a difficult time for you.

22You are 49 years of age now and you are entitled to pray in aid the fact that you have got to that stage of life without any convictions for any criminal offences, and that you have led an honest and productive life for the greater part of your adult years.

23Mr Watson rightly pointed out that these matters have been hanging over your head for more than three years now and there has been a delay and the prosecution action against you.  But for whatever reason it is recognised by the courts that a delay of that kind does operate to mitigate the punishment for a person such as yourself in these circumstances, and I take that into account in reducing the sentence that might otherwise have been appropriate.

24It is to your credit that you made restitution to the first of your victims in the sum of $288,000 odd which as Mr Watson points out represents approximately 60 per cent of the total amount obtained by deception.  A compensation order is sought on behalf of the second of your victims in the total sum of money that you obtained dishonestly from them.

25It seems to me that even though you have been declared bankrupt and that it will be difficult for you to get back on your feet again I should make that order in the full amount, so I do propose to do so but I take into account that I have done so in determining the sentence.

26I will not make any order requiring you to pay within a particular period of time.  That is something that can be addressed further down the track.  The net effect of the plea put on your behalf was that I should take into account all of the matters that I have endeavoured to summarise and which were put on your behalf, and to impose a sentence that is not crushing, that is geared to facilitate your rehabilitation as much as I can by enabling you to serve a significant period on parole.

27Obviously it is a matter ultimately for the Parole Board whether you get parole, but the thrust of Mr Watson's submission was that I should impose a non-parole period which would give you the opportunity of having a substantial period on parole.  Alternatively he submitted that passing a sentence of imprisonment coupled with a community correction order with conditions designed to assist your rehabilitation would essentially serve similar purposes.

28The prosecution as I understood it conceded the points raised by Mr Watson as being relevant to the question of sentence, but Ms Harper stressed that these were significant breaches of trust, that you engaged in this conduct over a sustained period of time during the period of four years covered by the indictment, and that there were a very large number of transactions, each of which would have given you opportunity to reflect on what you were doing and to desist.

29Ultimately there were very significant sums of money involved in your offending conduct.  I am bound to express the denunciation of this court for offending conduct of this kind and to punish you adequately for the offences you committed I have to take into account the need to deter you from further offending conduct.

30I suspect that the fact that you have been caught and have had such a significant fall from grace and now face a term of imprisonment for the first time in your life that that will have a very significant deterrent effect upon you.  The length of the sentence ultimately does not in my judgment need to be geared too significantly towards further deterring you from committing offences in the future.

31However it is necessary for me to pay proper regard to the need to deter others, particularly in cases where persons are placed in positions of trust, handling money on behalf of others, and there is no doubt that you exploited the trust that was placed in you in a very culpable way.

32However as I have pointed out already those sentencing considerations, particularly the degree of your moral culpability and general deterrence are to be modified to some degree as a result of your mental impairments just as I need to take that into account in regard to the fact that it will be harder for you to serve a term of imprisonment with those mental impairments.

33I must of course also have regard to your rehabilitation in achieving a proper balance and the selection of sentences and the structure of the sentences that I intend to impose.  Taking all those matters into account I am now ready to impose sentence upon you.  Would you please stand?

34On Charge 1 on the indictment I convict you and sentence you to imprisonment for a period of 18 months.  On Charge 2 I convict you and sentence you to imprisonment for a period of 20 months.  On Charge 3 I convict you and sentence you to imprisonment for a period of 19 months.  On Charge 4 I convict you and sentence you to imprisonment for a period of 24 months.  On Charge 5 I convict you and sentence you to imprisonment for a period of 22 months.

35It is necessary to me to reflect the fact that Charges 4 and 5 were committed at a time after the offences the subject of Charges 1 to 3 came to light by making orders for partial cumulation of sentence.   I therefore order that the sentence on Charge 4 of 24 months is to be regarded as the base sentence.  I order that six months of the sentence on Charge 2 and three months of the sentence on Charge 5 be served cumulatively with one another and upon the sentence of 24 months that I have imposed in relation to Charge 4.

36By my calculations that makes a total effective sentence of 33 months imprisonment.  I order that you serve a period of 18 months before you become eligible for parole.  I make the orders for compensation in the sum of $167,214.14 and for the provision of a forensic sample in accordance with the drafts with which I have been provided.

37But for your pleas of guilty I would have sentenced you to imprisonment for a total effective sentence of 44 months imprisonment and ordered that you serve a minimum of 27 months before you became eligible for parole.  In relation to the order that you provide a forensic sample you will be approached by an authorised officer seeking a scraping from the inside of your mouth.

38If you provide the scraping from the inside of your mouth as requested that will be the end of the matter.  If you fail or refuse to provide that scraping then the officer will be authorised to obtain a blood sample and may use reasonable force to obtain that blood sample.  I am sure you will not put the officer to that kind of trouble.

39I will sign those orders and have them provided to you.  Thank you.

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