Director of Public Prosecutions v Butt

[2018] VCC 858

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18 00256

DIRECTOR OF PUBLIC PROSECUTIONS

v

HAIDER MEHMOOD BUTT

‑‑‑

JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	31 May 2018
DATE OF SENTENCE:	8 June 2018
CASE MAY BE CITED AS:	DPP v Butt
MEDIUM NEUTRAL CITATION:	[2018] VCC 858

REASONS FOR SENTENCE
‑‑‑

Subject: Theft x 4
Sentence: Three years' imprisonment/non-parole period of 21 months

‑‑‑

APPEARANCES:	Counsel	Solicitors
Director of Public Prosecutions	Ms H. Bate
The Accused	Ms C. Woodward

1You have pleaded guilty to four charges of theft.  The maximum penalty for theft is imprisonment for 10 years.  Each of the charges is a rolled up charge.  The amount of the theft in each charge is a substantial amount of money which was not all stolen at once.  The amount in each charge totals the amount alleged to have been stolen by you over the period covered by the charge.

2Thus, between the 5th August 2014 and the 31st December 2014 you stole $73,306.65 (charge 1).  Between 8th January 2015 and the 18th December 2015 you stole a total sum of $121,198.55 (charge 2).  Between 7th January 2016 and the 23rd December 2016 you stole $171,852.65 (charge 3), and between the 13th January 2017 and 24th March 2017 you stole $10,853.30 (charge 4).

3Your offending thus spanned a period of about two and a half years.  The total amount stolen by you was $377,211.15.

4Section 9 of the Sentencing Act 1991 permits the court to impose an aggregate sentence where an offender is convicted of two or more offences that are founded on the same facts or form, or are part of, a series of offences of the same or similar character.  This is such a case and when I pass sentence I will impose an aggregate sentence.

5The circumstances of your offending are contained in a prosecution summary dated 9th May 2018 which I marked as Exhibit A.  The summary was read in open court by the learned prosecutor Ms Bate, and your counsel Ms Woodward agreed that it was accurate and forms a proper basis upon which I can proceed to pass sentence upon you.  It is therefore not necessary that I here describe in full all of the circumstances but will do so in an abbreviated way.  These sentencing remarks must be read however, in conjunctions with what is contained in the prosecution summary.

6You came to Australia from Pakistan as an international student in approximately 2010 and you were introduced to Paul Coughran who befriended you and was very kind to you introducing you to a number of his friends and he loaned you his car from time to time.  As a result your social circle grew as did your confidence.  Eventually you became a housemate of Paul Coughran.

7In 2013 Paul Coughran commenced his own sales and marketing business which he operated through a company SIQ Pty Ltd ("SIQ").  In September 2013 you were offered employment with SIQ by the victim.  Your role was to manage administration, finance and IT.  Soon after you began to steal money from SIQ.  This coincided with the sale of one of SIQ's major clients.  This and your actions began to place financial pressure on the company.  In 2014 it struggled to pay its' employee wages bill.

8You remained a housemate of the victim who was devoting himself to working and keeping the company afloat.  This placed him under considerable stress.

9In late 2015 the company lost the services of the second in charge because of personal issues, and the company had difficulty finding someone able to properly shoulder his responsibilities.  Trust became a major concern.

10The relevance of these matters which came about through no fault of yours is that you took advantage of the trust that had been placed in you by the victim and stole from the company when it was literally fighting for its' financial survival.  In 2015 you stole more than $120,000 from the company and the following year more than $170,000.

11You spent the money on a high living lifestyle that included a new car, clothes, new technology, fine dining and overseas travel.  No doubt conscious of the need to explain where your money was coming from you falsely told staff your mother had passed away and you had received a significant inheritance.

12Meanwhile SIQ accrued a $250,000 debt to the Australian Taxation office. 

13To keep the company afloat Paul Coughran borrowed from relatives and had to sell his share of an investment property. Mentally and physically fatigued he succumbed to substance abuse, and in May 2016 he was admitted to a psychiatric facility for detoxification in Thailand.  Before he left he explained to you why he was exhausted and the effect the financial stress of SIQ was having on him so that you were well and truly appraised of the harm that your dishonesty was causing him.

14Paul Coughran became aware that you had not received an inheritance and confronted you telling you that he knew that you had been stealing money from the company.  You soon after resigned.

15On 24th March 2017 you went to the Boroondara Police Station and reported the matter.  You told the police you had stolen between $80,000 and $100,000 from your employer.  Paul Coughran also reported the matter to police on the following day the 25th March 2017.  At a later formal interview in April 2017 you told them that you had stolen about $200,000.  You told the police you offended 70% out of anger and 30% out of greed.  You told police you were angry that the victim who wholly owned SIQ funded his lifestyle from the company.  That of course was none of your business.

16You told the police that you used the money for "all sorts of things, travel, going out, expensive things, just silly things".  You also said "it's not real money so I have no remorse over it.  So I would just spend it."

17Your method of offending was to take money from the company which you transferred to one of three accounts.  You falsely recorded such payments in the accounts of SIQ as "office works".

18It is self-evident that this is serious offending of this kind involving gross breach of trust by both an employee and a friend.  Paul Coughran took you under his wing, and gave you opportunity you would not have otherwise have had to have a successful life.  Not only did he give you a job, he took you into his home, and his life by introducing you to a circle of friends.  Soon after you found yourself in a position of trust you abused the trust.  Your motives seem to have been greed, and a misguided sense of entitlement.   Your offending extended over about two and a half years and escalated even after you could see that the company was suffering financially and the emotional and financial effect that this was having upon Paul Coughran.  Your moral culpability for this offending is very high.

19In sentencing you I must have regard to proper application of the sentencing principle of general deterrence.  The sentence I impose must deter others who might seek to offend as you have.  The sentence must also serve to denounce your offending and I must have regard to your prospects of rehabilitation.

20You have pleaded guilty to the charges and that is to your credit.  You pleaded guilty at the first committal mention.  By your pleas of guilty you have saved the time, and costs of what might have been a lengthy trial.  By your pleas of guilty you have thus facilitated the course of justice.

21I treat you as having indicated that you would plead guilty at the earliest opportunity.  There was no committal hearing and your pleas have saved the victim of your crimes from having to give evidence against you.

22Further, I treat your pleas of guilty as evidence of your remorse for your offending. 

23I received into evidence a victim impact statement from Mr Coughran.  In it he expresses the effect that your gross breach of trust had upon him.  Graciously, he asks that I not send you to jail.

24These matters were reported to the police towards the end of March 2017.  You were not charged until 17th November 2017, about eight months later.  A filing hearing was held on the 13th December 2017, and a committal mention was held on the 7th February 2018, and the plea was booked in and held before me on 31st May 2018.

25Ms Woodward filed a helpful outline of argument in which she emphasised four issues that arise here in mitigation.  They were, your early plea of guilty, your remorse, your prospects for rehabilitation, and delay.

26In relation to delay Ms Woodward relied upon the principle expressed by the Court of Appeal in a number of cases that a sentencing court must take delay into account where an offender has had the charges hanging over his head for an inordinately long time through no fault of his own which prevents him from getting on with his life and from putting the offending behind him.  This is especially so where an offender uses the time of the delay well.  Importantly here, you have not re-offended.

27During the course of the plea I expressed some scepticism about this argument advanced by Ms Woodward.  Here, any delay is partly explained by the fact that a full forensic investigation of the extent of your offending had to be carried out.  But even allowing for that, eight months between report and charging in a fraud case should not in my view be considered to be inordinate delay. 

28I accept you have had this matter hanging over your head through no fault of yours but in my judgment this is not a case where there has been undue or inordinate delay in bringing the charges before the court. 

29I turn to some matters related to your background and personal circumstances.

30You are aged 30 years.  You were born in Lahore in Pakistan.  You are one of six children.  Your mother is deceased and your father lives in Pakistan as do your siblings.  I was told and accept the family was not well off.  Your father was in the Pakistan Army and as a consequence the family moved from place to place.  You attended schools run by the army.  Your father is said to have been a strong disciplinarian and study of the Muslim faith was very important.

31You attended five different schools and completed year 12 and went on to study at the Lahore University where you commenced a Bachelor of Business Administration.  When a young woman with whom you had formed a relationship returned to Australia around 2008 you came to this country to follow her and to study.  You enrolled at Swinburne Institute to study for an Advanced Diploma in Accounting.  You completed one year of that course.

32You assimilated into Australian life and your experience of life here found you turning away from both your culture and your Muslim Faith.  You applied for refugee status on the basis that having abandoned your culture and your Muslim Faith you faced persecution if you returned to Pakistan.  This was granted and eventually in October 2014 you became an Australian citizen.

33In Australia you have worked in business administration, as a debt collector, as a night manager at a hotel, and as an Uber driver.

34You have been in a relationship with a woman Emma Farrell for about four years.  She is currently overseas but remains supportive of you.  I received a written reference from her into evidence.  In that letter she describes how you have expressed your remorse to her for your crimes.  I accept you are remorseful.

35She also describes how you have supported her and how both she and her mother constitute the only supportive framework that you have in Australia.  She also expresses concerns for your mental state.  She refers to you having consulted a psychologist on a number of occasions for what she describes as "lowered moods, lack of sleep and suicidal ideations" for which in the past you have been prescribed diazepam.  In passing sentence I have taken all of this into account.  There was no expert opinion put into evidence as to your mental state.

36I was told and accept that after your offending was discovered you have met with and apologised to Mr Coughran.  I accept that you have $1,650 by eleven separate payments between the 7th July 2017 and the 22nd of September 2017.  There have been no repayments since although I accept the high amount of the money stolen by you means in the absence of well-paid employment, any repayments are now probably well beyond your capacity to repay.  I accept the fact that you have attempted to repay signifies further your remorse.

37This offending aside you have lead an unblemished life.  You are an educated man who ought to have known better than to have offended in this way which as I said earlier was a gross breach of trust.   Ms Woodward submitted you fell to the temptation of what a western society offers and to the temptation of money when it was presented to you.  I accept that to have been the case.  It explains your offending but does not excuse it.

38However, I doubt you will re-offend again in this way and I think your prospects for rehabilitation must be reasonably good.  In passing sentence I have taken into account you have no family in this country and your support is limited to Ms Farrell and her mother.  I have assumed you will have few visitors whilst in prison and your time in prison will be harder than for others.  For these reasons I have provided for a lengthy period on parole.

39Although not forming part of her written submissions, in argument Ms Woodward asked me to consider imposing a combination sentence of a term of imprisonment of up to one year together with a Community Corrections Order.  Having regard to the period of time that your offending extended, and the total amount of money that you stole and also the level of your breach of trust I have formed the strong view that such a disposition would not properly meet the purposes of sentencing in the circumstances of this case.  For these reasons in my judgment I must impose an immediate custodial sentence and fix a non-parole period.

40On each of the charges you are convicted and sentenced to an aggregate sentence of three (3) years imprisonment.

41I direct that you serve a minimum term of twenty-one (21) months imprisonment before being eligible for parole.

42I declare there has been 8 days pre-sentence detention of the sentence passed this day and I direct that 8 days be reckoned as having been already served under the sentence passed this day and be entered into the records of the court and be deducted administratively.

43For the purposes of section 6AAA of the Act I state I have imposed a sentence being a term of imprisonment and I have reduced the overall sentence I would have imposed but for your pleas of guilty.  Had it not been for your pleas of guilty to the charges I would have imposed a total effective term of imprisonment of five (5) years and I would have fixed a non-parole period of three (3) years.

44The prosecution has made application for a restitution order in favour of Paul Coughran who wholly owned the company from which you stole the money.  The compensation order sought is for repayment to him of the total amount of money stolen by you less the sum you have previously repaid which I have referred to above.  The making of that order was not opposed and I have signed it.

45The prosecution sought the making of a forensic sample order for the taking of a forensic sample from your body.  That application was not opposed and for the reasons stated in the order I have made it which means that whilst in custody you may be approached by a police officer and be asked to furnish a forensic sample which is a swab taken from your mouth.  If you refuse the police officer may use reasonable force to obtain the sample from you.

- - -