Director of Public Prosecutions v Bull

[2021] VCC 1711

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-00800

DIRECTOR OF PUBLIC PROSECUTIONS

v

LORRAINE BULL

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	25 October 2021
DATE OF SENTENCE:	29 October 2021
CASE MAY BE CITED AS:	DPP v Bull
MEDIUM NEUTRAL CITATION:	[2021] VCC 1711

REASONS FOR SENTENCE

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Subject: Criminal law - sentence

Catchwords:              Pleas of guilty to 9 charges of theft of funds from employer over 14 years– total sum of $754,347.00 – funds used for personal expenses and to help daughter suffering medically induced drug addiction – offender now aged 70 - traumatic childhood – probable Complex Post Traumatic Stress Syndrome – duration unclear – whether Verdins principles apply – risk of deterioration of mental health in prison     

Cases Cited: Verdins v R [2007] VSCA 102,Kovacevic v R [2021] VSCA 49, Tawfik v R [2021] VSCA 289, Apted v R [2021] VSCA 151, Caulfield v R [2019] VSCA 131, Leimonitis v R [2018] VSCA 198 ---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Johnston (For Plea) Ms M. Vingerhoets (For Sentence)	OPP
For the Accused	Mr R. Thyssen	Danos Lawyers

HER HONOUR:

1Lorraine Margaret Bull, you have pleaded guilty to nine charges of theft.  All but two are rolled-up charges representing misappropriation of funds in the course of your employment.  The maximum penalty for each charge is 10 years' imprisonment.

The Offending

2From 2002 until 10 April 2017, you were employed by Minorlink Pty Ltd, an electrical contracting company.  You worked as a bookkeeper managing banking, accounts, wages and payslips.  Geoffrey Siegman was the sole director and shareholder of the business.  You had full authority to make transactions on the Minorlink bank account as part of your employment.  Mr Siegman was not required to authorise transactions before you transferred funds.

3From August 2003 onwards for 14 years, you misappropriated funds from your employer.  In total, you stole $754,357 in 892 transactions.  The details are contained in a spreadsheet which will be annexed to these sentencing remarks.

4Charge 1 covers transfers you made to a range of utility companies, such as Telstra and Citylink.  The total amount was $99,863.91.  Charge 2 represents transfers you made from the Minorlink account into accounts to which you had access. The total sum was $559,559.12 which is the largest sum of any category.

5You used various means of disguising the payments you made into your accounts.  Some of them you disguised by use of the name of a third-party supplier to Minorlink when in fact the payments were made into your account, not that of the supplier.

6Charge 3 deals with an amount of $10,285.28 to pay for car services for cars driven by you and by your family members.  Charge 4 deals with payments to Officeworks amounting to $16,149.25 for items unrelated to Minorlink.  Charge 5 covers payments totalling $23,490.76 for expenses associated with the redevelopment of a property you owned including payments to professional consultants and lawyers.

7You and your daughter, Rebekah Bull, were the primary beneficiaries of most of the payments.

8You told police that you would not have committed these offences but for your daughter's problems.  She had been addicted to drugs since the age of 20 following serious injuries in a car accident, leaving her dependent on morphine.  You and your husband supported her financially and paid for rehabilitation programs.  When your husband refused to continue this, you resorted to making unauthorised payments from Minorlink funds to assist her.

9To illustrate this, I have singled out the charges which deal with payments made direct to your daughter by you or for her benefit.  These are Charges 6, 7, 8 and 9.  Charge 6 covers various bank transfers to your daughter amounting to $15,033.25.  Charge 7 is a single transaction of over $10,000 to pay for airline tickets for her and yourself.  Charge 8 is a single payment of $859 for your daughter's car repairs.  Charge 9 covers cheques paid to your daughter totalling $18,870.

10In late 2016, Mr Siegman was approaching retirement and was winding up the business.  He noticed some irregularities in the bookkeeping.  In May 2017, he went to the police to report his suspicion of thefts by you.  He was asked to obtain a complete financial audit, which he did.  At the same time, he sought legal advice and his solicitors commenced civil proceedings against you and your husband.  You declared bankruptcy and the proceedings were stayed.

11You paid the sum of $282,000 to Minorlink and a further amount of $120,000 from your superannuation fund in relation to the civil proceedings.  Your husband agreed to pay a further $300,000.  This was a total of $702,000.

12When interviewed by police in May 2020, you made admissions but stated that on certain occasions, Mr Siegman was aware that the money was being transferred for certain expenses.  You also told police that you had returned some of the funds but could not say which.  You explained the extent to which you committed the thefts to support your daughter.

13You were charged in late September 2020 and at a third committal mention in April 2021, you indicated your plea of guilty.  Since you were charged, the process of the case has been relatively quick.

14Mr Siegman has provided a victim impact statement.  He described you as having been a friend on whom he relied completely in running his business' finances.  He explained that this was partly because of his wife's long running serious illness leading to her death in 2013.

15Mr Siegman believes that if you had not stolen these funds from the business, he may have been able to avoid insolvency and his somewhat straitened circumstances now.  He states that he is not able to do things in his retirement that he would have been able to do but for the thefts.

Objective gravity of the offending

16The amount of money you stole is substantial; 892 transactions over 14 years demonstrates this is protracted offending.  These are indications of the seriousness of your offending.  It also indicates the gross breach of the trust placed in you by Mr Siegman.  It was theft from a company which had little capacity to absorb such a large loss.  It is a serious example of this type of offending and warrants a sentence which takes account of the need for general deterrence and denunciation by the court.

17While broadly the thefts were not sophisticated, on occasions you disguised the payments and made discovery more difficult.

Mitigating factors

18You are now aged 70 and you live in the same house as your partner, Norman Bull, although you and he are now separated following the breakdown of the marriage.

19You come from an emotionally disadvantaged background and although there were stable and happy years following your marriage and the birth of your two children, tragic circumstances prevailed in your life for many years.

20When you were two or three years old, your mother left the family taking your sister with her.  You understand that you were abandoned alone in the house and it took several days for your grandmother to find you.  Many years later, you learned that your mother had continued to live in the same suburb after she left but never played any part in your life.

21You were principally raised by your grandmother.  When your father remarried, you were taken to live with him in Sydney at the age of nine.  He placed you in a Roman Catholic boarding school in the Blue Mountains where you remained for four years.  There you were subjected to physical abuse by the nuns.  You were forced to stand naked in a very cold dormitory and forced to eat scraps of food from the rubbish bin.

22At the age of 14, you returned to Sydney and attended a high school.  Your father was an alcoholic and was controlling and abusive to you.  You ran away and returned to Victoria to live with your grandmother.  You found an office job.  You became pregnant and your father arranged for you to live in a home for unmarried mothers ran by the Catholic church.

23A baby girl was born in October 1968 and you gave her a name but that same day, she was taken from you and placed for adoption.  This was also arranged by your father through the nuns and you have never got over the trauma of this.

24You married at age 20 but the relationship was marred by violence towards you and the marriage failed.  At the age of 22, you met and married Norman Bull.  You had two children together, Geoff and Rebekah.

25When Rebekah was 16, she was involved in a serious car accident and spent months in hospital and rehabilitation.  As a result of the morphine needed for pain relief, she developed an opiate addiction.  This progressed to heroin use and she repeatedly attended addiction and rehabilitation centres such as Windana and Odyssey House for the rest of her life.  She overdosed many times and her addiction caused great distress in the family.

26Rebekah resorted to criminal behaviour such as theft.  You incurred great expense in efforts to keep Rebekah out of gaol and paying her debts and rehabilitation expenses.

27Rebekah had two children.  In 2007, she was involved in another serious car accident resulting in the tragic death of her three-year-old son, Sean, after nine weeks in hospital.

28Some years later, Rebekah gave birth to another child and continued to abuse drugs.  You continued to feel obliged to provide for your daughter and her children.  However, around this time, your husband refused to help further.  You separated from him in 2016, but for financial reasons you continued to live under the same roof.  Tragically, later that year, Rebekah died in a house fire.

29Your surviving grandchildren live near you but contact has been restricted due to the current pandemic.  You have no interests outside home and you have little interaction with others.

30In November 2020, you began seeing a psychologist, Rebecca Cheney, whom you saw for 12 sessions until recently.  You told Ms Cheney that your mental health had declined dramatically as a consequence of the repeated trauma you suffered.  You blame yourself for being unable to save your daughter from drug use.

31Ms Cheney described the severe psychological symptoms you experience in her report including panic attacks which confine you to your house and suicidal planning.  You are prescribed six or seven medications for your mental health and in addition for fibromyalgia.

32Ms Cheney assessed your test results for depression, anxiety and stress as being in the extremely severely range.  This has led to somatic symptomology causing you to be continuously concerned with your health status to the level of handicapping your daily life.  Ms Cheney made a diagnosis of probable complex post-traumatic stress disorder.

33Ms Cheney was unable to estimate a date for the likely onset of this disorder but suggested that your mental health may have been impaired for many years due to your extensive trauma history.  She arranged for a referral to a psychiatrist for a medication review anticipating that your symptomology was becoming increasingly severe as your court date approached.  Sadly you did not follow through with this.

34Ms Cheney expressed her concern that your mental health will further decline if sentenced to prison.  She recommended regular ongoing therapy and review in the prison setting.  She said you require extensive and long-term psychological treatment.

Sentencing Issues

35The seriousness of your offending warrants a substantial prison sentence.  Similar cases indicate that a head sentence with a non-parole period is required.  They indicate that a combination of imprisonment and Community Correction Order would be inadequate.  Your unusually severe mental health condition is the chief reason for considering such a disposition.  It caused me to take the preliminary step of arranging an assessment by Corrections.  You have been assessed as suitable but for reasons which I shall explain I shall not be imposing that order.

36Mr Johnston for the prosecution pointed to the aggravating factors in your offending.  These are the large amount of money involved, the long period of time over which you offended, the serious impact on the victim and the serious breach of trust which you perpetrated.

37The mitigating factors in your favour include those to which I have already referred, in particular the damage caused by the trauma and abandonment earlier in your childhood, an experience which was then repeated in other forms in your adult years and even recently.  It is impossible to determine if the complex post-traumatic stress disorder from which you suffer was present when you started to offend.

38It follows that the principles in Verdins[1] which allow for reduced moral culpability are not necessarily enlivened.  However, your motivation to help your daughter in what you perceived to be desperation accounts for and explains but does not excuse some of the offending.  Other uses to which you put the funds appear to have been more directly to your personal benefit as it is not clear how all the money was spent.

[1] Verdins v R [2007] VSCA 102

39Your moral culpability is high.  The Verdins principles only play a role in relation to the duration of your prison sentence.  Clearly, you will experience your sentence in the context of suffering severe symptoms of complex post-traumatic stress disorder and the risk of deterioration.  I place significant weight on that matter in applying some leniency to your sentence.

40I take into account your early plea of guilty particularly at a time when the COVID restrictions will play a significant role in your experience of prison.  You will first be subject to 14 days' quarantine.  You will not have visitors.  You will be likely to spend longer in your cell than at other times and programs will be limited.  With COVID-19 now in the prison system, the risk of contracting it will be greater and your age and state of health will mean greater risk.  I take all those matters into account.

41Your plea is valuable in helping to reduce the number of trials awaiting hearing.  There has now formed a large backlog.  Your plea has spared the victim from having to give evidence and saved the time and expense of the trial itself.  This is of particular value during the current pandemic.  Overall, these considerations deserve a significant discount on your sentence.

42In addition, you have expressed your remorse and have expressed insight and responsibility.

43I was referred by counsel to several sentencing cases which dealt with offenders who had stolen from their employers in varying sums over varying time periods.  These cases have the usual range of similarities and dissimilarities.  None of the offenders had a prior criminal history.  The fact that you have paid a considerable sum in restitution is a point of difference and I note that the prosecution does not seek any order for compensation.  I should add also of course, Ms Bull, that you also have no criminal history.

44Your counsel, Mr Thyssen, referred to the decision in Kovacevic v R [2]  In that case, the same type of offending was slightly less serious than in your case and the personal circumstances of the offender were exceptional.  This justified a combination sentence of 12 months' imprisonment and a 12-month Community Correction Order.  The Court of Appeal described this as very lenient, if not manifestly inadequate, in circumstances where the sentencing judge had exercised mercy.  The offender was relatively young and had her two-year-old child in prison with her.

[2]

45I have taken into account this decision and the others to which I shall refer briefly as well as the recent decision of Tawfik v R[3]; Saputra v R which deals with consistency in punishment.

[3] [2021] VSCA 289

46I became aware of the decision in Tawfik after the plea hearing and offered both parties an opportunity to provide any further submissions that might have been considered appropriate.  I received written submissions from both parties chiefly in respect of the sentence in Kovacevic.

47Mr Johnston submitted that the mitigating circumstances in that case comprise a material difference distinguishing it from your case.  Mr Thyssen submitted that your very considerable tragic personal circumstances have the effect of balancing the ledger and justify a similar sentence to that in Kovacevic.

48As I said, during the plea hearing, Mr Johnston referred me to several cases; Apted v R [4] involved a larger amount of money but many fewer transactions over five years where the offender had a gambling problem.  She was sentenced to a term of imprisonment of four years with a non-parole period of two years and six months.  On appeal, it was reduced to three years and nine months with a non-parole period of two years and three months due to a reduced sentence on one charge.

[4] [2021] VSCA 151

49In DPP v Caulfield[5], the sum stolen was almost half the sum in your case and occurred over three years.  Once again, the offender had a gambling problem and a somewhat dysfunctional background.  She was sentenced to nine months' imprisonment with a Community Correction Order.  The sentence was held to be manifestly inadequate and the offender was resentenced to two years and six months' imprisonment with a non-parole period of 18 months.

[5][2019] VSCA 131

50In Leimonitis v R[6], the offender worked for an insurance company and over three years generated 25 separate false claims and paid just over $200,000 into her own bank account.  The sentencing judge took into account that the relatively young offender had a major depressive disorder, that she was genuinely remorseful and that she had excellent prospects for rehabilitation.  However, in that case, the sentencing purposes of general deterrence and denunciation could only be met by an immediate term of imprisonment and that the sentence of one year and nine months with a non-parole period of 12 months was held to be within range.

[6] [2018] VSCA 198

51I arranged for you to be assessed for suitability for a Community Correction Order, however, on careful analysis of the circumstances of this case, I have determined that a Community Correction Order, even if combined with 12 months' imprisonment, would not be adequate.  The offending was so serious that only a head sentence with a non-parole period would be appropriate.

52I take into account the need for consistency and recognise that the hardships you have suffered call for a degree of compassion to be exercised.  Therefore, while I intend that the individual sentences I impose will reflect the relatively seriousness of each offence, I have limited the amount of cumulation upon the base sentence.

53Would you stand now please, Ms Bull?

54I sentence you to the following terms of imprisonment;

for each of Charges 1 and 2, three years;

for Charge 3, 10 months;

for Charge 4, 12 months;

for Charge 5, two years;

for Charge 6, 12 months;

for Charge 7, nine months;

for Charge 8, three months;

for Charge 9, 12 months.

For the purposes of cumulation, the base sentence will be the sentence for Charge 2. 

I make the following orders for cumulation; four months of each of the sentences for Charges 1 and 5 and three months of each of the sentence for Charges 3, 4, 6 and 9 are to be served in cumulation upon the base sentence.

The sentences for Charges 7 and 8 are to be served concurrently.

This results in a total effective sentence of four years and eight months.

I order that you serve a minimum period of two years before being eligible for parole.

55If you had pleaded not guilty to these charges, I would have sentenced you to five years and six months with a non-parole period of three years and six months.

56Are there any other matters, Mr Thyssen?

57MR THYSSEN:  No, Your Honour.

58HER HONOUR:  Ms Vingerhoets, any further matters?

59MS VINGERHOETS:  No, Your Honour.

60HER HONOUR:  Thank you.

61Now, I understand that Mr Bull is here in court.  I will leave the Bench now but my staff will remain here, everyone else may remain and Mr Bull can say goodbye to Ms Bull before the officers take her.

62MR THYSSEN:  Thank you, Your Honour.

63HER HONOUR:  Just before I go, Mr Thyssen, I think it will be necessary to place some information on the gaol order for the reception of Ms Bull in relation to her mental health status.

64MR THYSSEN:  Your Honour, she has her list of medications with her.

65HER HONOUR:  Do you agree with that?

66MR THYSSEN:  Yes, Your Honour.  She has a list of medications to go with her.

67HER HONOUR:  I will make sure that is done.

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