Director of Public Prosecutions v Butera

[2016] VCC 317

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-02205
CR 15-02206

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARIA PIA BUTERA
LISA JOANNE ZANATTA

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	18 March 2016
CASE MAY BE CITED AS:	DPP v Butera
MEDIUM NEUTRAL CITATION:	[2016] VCC 317

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Breckweg
For Accused BUTERA	Mr C. Helios
For Accused ZANATTA	Mr P. Boulton

HER HONOUR:

1Maria Pia Butera, you have pleaded guilty to three charges of giving false or misleading evidence to a Royal Commission.  Lisa Joanne Zanatta, you have pleaded guilty to two charges of giving false or misleading information to a Royal Commission.  All charges are contrary to s.6H of the Royal Commission Act 1902. 

2I annex the very detailed prosecution opening summary to these sentencing remarks.  But in very short compass, all the offending relates to false evidence given by each of you to the Royal Commission into Trade Union Corruption.  The facts underlying this offending are as follows.

3You, Ms Butera, were the executive manager in workplace distribution, and you, Ms Zanatta were the senior advisor member relations workplace distribution of Cbus, a superannuation service essentially for members of the Construction, Forestry, Mining and Engineering Union, that is the CFMEU.

4A dispute had arisen between the CFMEU and a company Lis-Con about its alleged shortfalls in employer superannuation contributions and some of its contracting practices.  Eventually in July 2013, Brian Parker, the New South Wales Secretary of the CFMEU Construction and General Division, in a telephone conversation, asked Cbus CEO, David Atkins, for further information about Lis-Con arrears.

5Mr Atkins then advised both you, Ms Butera, and you, Ms Zanatta, of this conversation.  Ultimately, you, Ms Zanatta obtained data relating to personal information of a large number of Lis-Con employees, including their names, dates of births, home addresses and so forth, then with the knowledge and agreement of you Ms Butera, travelled from Melbourne to Sydney where you delivered that information to the CFMEU.

6On three occasions, 7 July, 23 October and 28 October 2014, you, Ms Butera gave false evidence to the Royal Commission about the release of this confidential information to the CFMEU, including your knowledge of and involvement in it.  Similarly, you Ms Zanatta on 7 July, 3 October 2014 gave false evidence in similar terms. 

7You, Ms Butera, however, then voluntarily attended before the commission to give more information essentially to the effect that you had previously given false evidence and provided a true version of events.  You were charged on 22 October 2015 with the offences arising from your offending and those actions and indicated a guilty plea at a filing hearing on 5 November 2015.

8You, Ms Zanatta admitted giving false evidence, after receiving a warning from the Commissioner at a hearing on 3 October 2014.  On 9 December 2014, you provided a letter setting out a true account of events and on 12 December 2014, voluntarily appeared before the Commissioner in a private hearing where you gave evidence of the true sequence of events.  You were charged on 22 October 2015 and entered a plea of guilty, also at the filing hearing on 5 November 2015.  It is accepted by the prosecution that both pleas were entered at the earliest opportunity.  Neither of you has any prior or subsequent convictions.  The maximum penalty for each charge is five years imprisonment, or a fine not exceeding $20,000.

9I now turn to the personal circumstances of each of you, beginning with you Ms Butera.  You are 55, the youngest of two children whose family emigrated from Italy in the 1950s.  You grew up in the Melbourne western suburbs and were largely cared for by your grandmother, as your parents worked long hours.  You were a bright student, completed Year 12 at Hadfield High School, then obtained a Bachelor of Commerce Degree.

10From 1982 to 1985, you worked as a research officer with the Municipal Officers Association, apparently excelling in this role as you were then handpicked as an advisor to the Victorian Minister for Labour Steve Crabb, working with him in that role from 1985 to 1992. 

11From 1992 to 1998, you worked for the construction industry Reform and Development Agency, overseeing the government's construction industry reform program.  In 1995, you joined Cbus where you worked until 2014, when you were sacked after the revelation of this offending.  You have not been employed since.  You are married, but have no children.

12It is clear from the psychological and psychiatric reports tendered on the plea, that the events subsequent to your offending have been traumatic for you.  You remain unemployed and have developed what both psychologist Patrick Newton and psychiatrist Dr Amit Zusman have diagnosed as an adjustment disorder, with mixed anxiety and depression for which you are now medicated.

13Your offending saw the end of your 25 year career in the union movement.  You are now sad and depressed and I accept, ashamed and very remorseful in relation to this offending, often battling suicidal ideation and unfortunately, it would seem excessively turning to alcohol for solace.

14Your marriage is reportedly strained and your major occupation appears to be caring for your mother who has suffered a debilitating stroke.  You apparently have little hope in your future and have regarded these proceedings, and the possible imposition of a gaol sentence with real trepidation.

15I received a host of references from former employers, including Mr Crabb, work colleagues and friends, all attesting to the dedication and efficiency which you brought to your work, your shame and remorse, social withdrawal and subsequent misery.

16I now turn to you Ms Zanatta.  You are 45 years of age, the youngest of four children who grew up in Melbourne's inner western suburbs.  Your father was a gambler and alcoholic who did little to support his family.  Your mother worked two jobs and you and your elder sister were essentially placed in the care of your grandparents, who largely raised you in a nurturing and supportive environment.

17Your grandmother died when you were ten and two years later, your grandfather suffered a severely debilitating stroke.  There was not the money for residential or even domestic care for your grandfather, and most unusually, you and your older sister, by then an enrolled nurse, took on that role, to the extent that you completed your final years of school by correspondence, your grandfather dying when you were 18.

18You obtained Year 12, completed a carpentry apprenticeship, worked briefly in that industry, then completed a tertiary teaching degree, teaching carpentry for the Salvation Army and the CFMEU.  You moved to work in financial services in 1998, undertaking many courses and worked with Cbus until 2014, when you too were sacked for your offending.

19Since April 2015, you have been employed as a building maintenance project manager with the Victorian Trades Hall Council.  You are happily married and have two children aged five and eight.  In the wake of being charged with this offending in 2014, you attended on psychologist Dr Cynthia Davis who has stated in her report that you too presented with an adjustment disorder, with a moderate depression disorder and moderate anxiety in response to this court hearing and being charged.

20Dr Davis said you exhibited with stress, shame and guilt over your offending. 

"Lisa's distress, centred upon her confusion, about why she had lied under oath, given she has consistently lived by the sort of values of truthfulness and integrity in her life".

21I also received a raft of impressive references from family, friends, former work colleagues and your employer, all attesting to your dedication and hardworking approach in your employment.  Many of them described your offending as out of character.  They also attested to your remorse and regret over the offending that had brought you here before this court.

22The offending of course was serious.  It has a direct impact on the proper functioning of an arm of the justice system, one of the community's mainstays.  Ordinarily, persons who have offended as you both did, can expect confidently to be dealt with by the imposition of a term of imprisonment to be immediately served.

23There are strong mitigatory factors in the case of each of you, which have led me (and I note that the prosecution does not disagree with this conclusion), to decide that an active term of imprisonment is not required.  Those mitigatory factors are:

1.    Your impressive working histories obtained in the face of early disadvantage and difficulty in the case of each of you.

2.    The complete lack of prior or subsequent criminal convictions, in the case of both of you.

3.    The evident remorse of each of you for the offending, as evidenced by your ultimate cooperation with the commission, your early pleas of guilty and the observations of both professionals and those who know you in this regard.

4.    My finding that it is highly unlikely that either of you would ever offend again, either in this way, or in any other criminal sense.  That is, I am satisfied that both of you have excellent prospects of rehabilitation, so that the sentencing principles relating to the protection of the community and specific deterrence have little part to play in the sentencing exercise before me.

24You have been charged pursuant to Commonwealth Legislation, which still includes the option of what is effectively a suspended sentence, in a way that would not have been available had you been charged under Victorian law.  Logically, and according to authority therefore, the principles of Boulton's case, a decision of the Victorian Court of Criminal Appeal, talking about the wide application normally of a community corrections order, have no application in your particular cases.

25The authorities make it clear that the potential of such offending as yours, to undermine the justice system and the essential order it brings to our community, is such that only in rare cases, will some form of imprisonment either immediately served or suspended will be imposed, as the most appropriate means of making the seriousness of this offending well known, and sending out a message to those in the community, tempted to behave in this way, as to what they can expect if they do so offend.

26In all the circumstances therefore, I sentence you as follows.  Can you stand up please. 

27Ms Butera, in relation to Charge 1, you are sentenced to 12 months imprisonment, which sentence will begin today.  But you will be released on recognisance in the sum of $2,000 and I will need some help from you Ms Breckweg, I always mess these up.

28Charge 2 is a 12 month sentence which will begin on 18 April 2016 and Charge 3, 12 months' imprisonment, which will begin on 18 May.  Now I want to do - that will give an effective sentence of 14 months.  I want to suspend that for a period of two years.  What is the best way of me ‑ ‑ ‑

29MS BRECKWEG:  Yes, Your Honour, you mention ‑ ‑ ‑

30HER HONOUR:  Do I need to put each of them on a recognisance?  No.

31MS BRECKWEG:  No, just one, one recognisance.

32HER HONOUR:  Just one. 

33MS BRECKWEG:  So if you - Charge 1, 12 months' imprisonment commencement.  Charge 2, 12 months' commencement.  Charge 3, 12 months' commencement.

34HER HONOUR:  Yes.

35MS BRECKWEG:  I order that you be released forthwith.

36HER HONOUR:  Yes.

37MS BRECKWEG: Pursuant to - recognisance pursuant to s.21B of the Crimes Act in the sum of $2,000 to be of good behaviour.

38HER HONOUR:  That is fine.  I just didn't know if I had to attach a recognisance ‑ ‑ ‑

39MS BRECKWEG:  no.

40HER HONOUR:  ‑ ‑ ‑ and relate to each of them separately. 

41MS BRECKWEG:  No.

42HER HONOUR:  So, I order that you be released forthwith upon you entering a recognisance to be of good behaviour in the sum of $2,000 for a period of two years.  Now what that means is, you only pay the $2,000 if you offend in the next two years.  Also, if you offend in the next two years, you will then enliven that sentence.

43So effectively what you have got, in simple terms, is a 14 month sentence of imprisonment which is suspended for a period of two years.  All right, do you understand that?  Does it make sense?

44OFFENDER:  I understand that.

45HER HONOUR:  Good, thank you.  Turning now to you Ms Zanatta.  In relation to Charge 1, you are sentenced to 12 months imprisonment which is to begin today and on Charge 2, 12 months' imprisonment, which is to begin on 18 April.  You are to be forthwith released upon you entering a recognisance in the sum of $1,800, to be of good behaviour for a period of 22 months.

46Again, you only pay that money if you breach the suspended sentence by offending within the period of the recognisance.  If you do offend in that way, you will also enliven the sentence that I have imposed.  Does that make sense to you as well?

47OFFENDER:  Yes, thanks.

48Pursuant to s.6AAA, I declare in the case of you Ms Butera, that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of two years and order that you serve a minimum term of 16 months.  In the case of you Ms Zanatta, I would have ordered that you serve a term of imprisonment of 20 months, and order that you serve a minimum term of 12 months.  Can you each have a seat while we prepare the documentation that you will need to sign.  Thank you.  Is there anything else that I need to attend to?

49HER HONOUR:  Thank you.  Ms Butera, can I just say this to you, if you would not mind standing up and I am sorry if I am embarrassing you in open court.  It might be over, but the sort of trauma you have been going through will not be over.  So it would be very helpful for you, I suspect, if you went and got yourself some assistance, all right? 

50I understand from the psychological and psychiatric material that previously there had been no difficulties.  This has all been in response to everything that flowed once your offending came to light and you were charged, all right? A large part of that may disappear, once you go home, but not all of that is going to.  So it is not going to be magically be all right.  Perhaps some therapy along the way, if you do not mind me saying, all right?  Thank you, Ms Butera, have a seat.  Yes.

51HER HONOUR:  Thank you.  That's fine.  Thank you very much.  I'd also like to thank counsel for their helpful written materials.  I know I sort of cut you off in court, but I was able to largely because of the material I'd already read before I came on the Bench, so thank you very much and thank you Ms Breckweg.

52MS BRECKWEG:  Thank you, Your Honour.

53HER HONOUR:  All right, we've finished, so we'll be adjourning sine die until after Easter.  Thank you very much.

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