Director of Public Prosecutions v Campesato

[2019] VCC 992

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

AT HORSHAM
CRIMINAL JURISDICTION

CR 18-01930

DIRECTOR OF PUBLIC PROSECUTIONS

v

CATHERINE CAMPESATO

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Horsham
DATE OF HEARING:
DATE OF SENTENCE:	28 June 2019
CASE MAY BE CITED AS:	DPP v Campesato
MEDIUM NEUTRAL CITATION:	[2019] VCC 992

REASONS FOR SENTENCE
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Subject: Theft from employer
Catchwords: $232,107.18 stolen over a 3 ½ year period – early guilty plea – 1^st offender – history of sexual and domestic abuse – mental health issues – prison hardship – excellent rehabilitation prospects
Legislation Cited:
Cases Cited:
Sentence: 18 months imprisonment with a minimum non-parole period of 9 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Piggott
For the Accused	Ms C. Lynch

HIS HONOUR:

1Catherine Campesato, you have pleaded guilty to four counts of theft.  The maximum penalty for each offence is 10 years' imprisonment. 

2The circumstances of your offending are set out in the summary of prosecution opening, dated 28 March 2019. 

3In 2010, your friend, Robyn Creek, employed you in her small business.  Your duties included paying business accounts and wages.  Between 20 March 2014 and 21 December 2017, you stole $232,107.18 from your employer by fabricating invoices and making payments to your personal bank accounts. 

4In December 2017, Mrs Creek's accountant alerted her to irregularities in the business accounts.  She discovered your dishonesty and, on
21 December 2017, when she confronted you, you signed a letter admitting your guilt and signed a charge over your home for the money you had stolen.  She dismissed you from your employment and reported the matter to police.  On 25 January 2018, you wrote Mrs Creek and her husband a letter of apology. 

5Police interviewed you on 23 May 2018.  You admitted your wrongdoing and said you took full responsibility for it.  You acknowledged that you had been entrusted with banking passcodes and used them to steal from your employer.  You said you chose the wrong options in circumstances where your mental health and a difficult family situation had affected your decision making.

6You pleaded guilty to the charges at the committal mention, the earliest opportunity. 

7You have no criminal history. 

8Your thefts, committed over a period of nearly four years, involving 287 dishonest transactions from your employer, who was also your close friend, were a serious breach of trust. 

9Mrs Creek read her victim impact statements to the court.  She described you as best friends for some 15 years before you started working for her.  You looked after her young son when she had to work.  She and her husband had helped you when you were on your own with house moves, household jobs and other things.  She trusted whole-heartedly and, when she employed you, gave you full access to her bank accounts and accounting records.

10She was devastated when she discovered you had stolen from her.  It shattered your friendship and she felt lost and betrayed.  She had trouble sleeping, suffered panic attacks and isolated herself.  She lost countless hours tracing your dishonest transactions through her records, and the financial loss has pushed back her retirement at least four years.  Her husband and two sons have been affected as well. 

11After she terminated your employment, she received a solicitor's letter of demand for entitlements which she had already paid you.  You took her to the Fair Work Commission to get your pay slips and you applied for an intervention against her, which you did not prosecute.  She sees no remorse or compassion in you.

12I turn to your personal circumstances which are set out in the report of Patrick Newton, clinical and forensic psychologist. 

13You are 57 years old. You have two sons and a daughter.  Your daughter and her young son live with you in a rented flat. 

14You are an only child.  Your mother died in 2014.  Your father is now aged 80 years, he suffers dementia and is cared for in a nursing home.

15You have lived in Horsham since you were eight years old.  You attended local schools and completed Year 12.  You undertook secretarial studies and worked as a law clerk and then moved into clerical and administrative positions with a number of government departments. 

16You worked for Mrs Creek from 2010 to 2017.  Since February 2018, you have been employed as an administrative officer with MADEC, an employment and training agency. 

17You told Mr Newton, when you were very young, you were sexually abused.  You also told him your marriage, which lasted from 1986 until 2002, had been physically abusive.  You said each of your children has suffered mental health problems. 

18In 1994, you suffered from post-natal depression following the birth of your second child.  You were suicidal and hospitalised for a period and discharged under psychiatric care.  You have been prescribed various antidepressants ever since. 

19In March 2019, you came under the care of a psychiatrist, Dr Mutha.  You gave him a history substantially the same as the history you gave Mr Newton. 
Dr Mutha diagnosed you with a major depressive disorder with moderate distress and complex post-traumatic stress disorder in the context of childhood sexual abuse and a long history of domestic violence.  He has managed you with the antidepressant, Prozac, and recommended psychological therapy. 

20You have been working with a counsellor, Susan Penrose, during 2018 and 2019.  She observed you were extremely stressed and overwhelmed with remorse, guilt and shame.  She said you have spoken of and planned financial atonement for your offending. 

21In relation to your offending, you told Mr Newton you believed your employer was narcissistic and you described your work as the most demoralising of any job you ever had.  But you also said"

'What I did was horribly wrong, inappropriate, disrespectful and wildly selfish.  What I did was one of the worst things I could possibly have done.  There are no excuses, I made bad choices at a bad time in my life and will always regret my actions.  I absolutely take responsibility for my selfish actions and the terrible pain I have caused.'

22You said you used the stolen moneys to address financial problems, including payment of a son's drug debts and rehabilitation.  To Mr Newton, on psychological testing, you produced a distorted and exaggerated profile.  He said your responses were characterised by an endorsement of many items which are unusual in genuine clinical patients, but which are common in those feigning mental illness for secondary gain. 

23Whether your responses were motivated by fear or panic or a desire to obtain some advantage, I cannot say.  Nevertheless, he was satisfied that you meet the psychological criteria for a major depressive disorder of mild severity.  He was of the opinion that at the time of your offending, it is likely you were suffering at least some level of depressive mood disturbance. 

24He described these effects, while real, as relatively mild, noting that you continued to be able to work effectively, to manage a household and to engage in various activities of daily living to a good level of adaptive functioning.  He said there was no indication that your moral reasoning was impaired or that you did not understand the likely consequences of your actions. 

25Nonetheless, in his view, in his view, it is likely you were labouring under the effects of your depressive condition, which would have detrimentally affected your cognitive clarity and decision making. 

26I accept Mr Newton's opinions and take them into account.  Since your offending, you have taken a number of significant steps to advance your rehabilitation.  You have obtained and maintained other employment with an employer who knows of your current offending.  MADEC area manager, Dee Devlin wrote, your disclosure notwithstanding, you were employed in a position of trust, handling cash, and had demonstrated yourself to be a valuable staff member who works well within the team.  She said your employment will continue to be supported. 

27As I have said, you also sought specialist treatment from your emotional problems from Dr Mutha and counselling from Ms Penrose.  Additionally, you have not re-offended.  You have also sought assistance from Kerry Tucker, who operates workshops and programs for prisons, including Tarrengower women's prison, to help you prepare for the possibility of your incarceration.  You had told Dr Mutha you expect a custodial sentence. 

28You also tried to sell your home to repay some of the money you stole.  I was told you were unsuccessful, and in November 2018, you voluntarily surrendered the property to the mortgagee, National Australia Bank.  Thompson Geer, Solicitors, correspondence, confirmed the surrender.  I was told the property was sold at a price well below expectations, and after payment of your mortgage and expenses, you are left with a debt of approximately $48,000.

29You have strong family and community support in court.  You have been supported by your daughter and a number of friends.  Six written references from family and friends attest to your many positive attributes.  Variously, they describe you as loving, caring, hardworking, loyal and trustworthy.  All regard your offending as totally out of character and see you as remorseful and ashamed.

30In comprehensive and able submissions, your counsel, Ms Lynch, relied on the following factors in mitigation of penalty.  Firstly, your early guilty plea and remorse.  Secondly, that your offending occurred in circumstances of personal dysfunction, mental health issues and financial stress.  Thirdly, your offending was relatively unsophisticated as you used your own bank accounts to steal the funds from Mrs Creek's business.  Fourthly, your low risk of offending.  Fifthly, the additional burden of imprisonment upon you because of your mental health issues and separation from your daughter, grandson and elderly father.

31I accept and take into account your early plea of guilty is evidence of acceptance of responsibility for your actions and remorse.  In addition, it has high utilitarian value.  I accept your offending occurred in stressful circumstances, exacerbated by your depressive illness, and while I accept your offending was relatively unsophisticated, it was a brazen betrayal of the trust of your close friend. 

32I accept you have excellent prospects of rehabilitation, demonstrated by the steps you have taken to reduce the risk of your reoffending, and I accept that imprisonment will be harder for you because of your health and isolation from family. 

33I also accept, despite you solicitor's letter of demand to Mrs Creek, your Fair Work Commission application and your intervention order application against her, and your comments to Mr Newton that you believed she was narcissistic and undervalued your work, that your expressions of remorse and shame to others are genuine. 

34Ms Lynch submitted the motivation for your offending as need and desperation to support your family while you were otherwise under significant financial pressure.  While you may have used some of the money you stole to assist your children financially, your bank records show increased spending on lifestyle items, such as eating out, fitness classes and beauty treatments during the period of your offending. 

35Ms Piggott, on behalf of the prosecution, submitted yours was an appalling abuse of your close friend's trust, that you spent a significant amount of moneys you stole on non-essential items, that despite your depression, relatively mild as it was, you well knew what you were doing and the consequences, and your offending is serious because it involved a significant amount of money stolen over a significant number of years.  I accept the force of those submissions. 

36She submitted an immediate custodial sentence was the only appropriate disposition in your case.  Ms Lynch submitted an appropriately structured community corrections order can adequately address all sentencing considerations.  Alternatively, she submitted a combination sentence was within the proper sentencing range. 

37To properly consider Ms Lynch's submissions, I have had you assessed for a community correction order and you were found to have been suitable.  Acknowledging a community correction order might be appropriate even in cases of serious offending which might have otherwise attracted a term of imprisonment, I have concluded, after anxious consideration, that a sentence of imprisonment is necessary in your case to satisfy the purposes of sentencing, which include the need to punish you and to provide a measure of general deterrence in a manner which is just.

38What the Court of Appeal said in Bulfin & Diason about offending of this kind has application here.  You abused the trust of your best friend to fund, at least in part, a lifestyle.  Yours was a calculated course of conduct over a long period, involving repeated acts of dishonesty and a large sum of money. 

39Notwithstanding the significant mitigating factors which I have taken into account, a community correction order or a combination sentence would not reflect the objective seriousness of your offending.  In reaching this conclusion, I have had regard to a number of comparable cases, include the Court of Appeal decisions in Caulfield, Thorp, Malnekis and Belezia, and the many sentences of this court to which both counsel referred me. 

40On each of the four charges of theft, you are sentenced to nine months' imprisonment.  I direct that three months of the sentences imposed on Charges 2, 3 and 4 be served cumulatively upon the sentence on Charge 1 and upon each other, making a total effective sentence of one year and six months.  I order you serve a minimum period of nine months before you are eligible for parole. 

41I declare that but for your pleas of guilty, I would have sentenced you to a period of two years', three months' imprisonment and set a minimum non-parole release period of one year and three months. 

42Pursuant to s.464ZF of the Crimes Act, I make an order for the taking of a forensic sample of your saliva, and I must inform you that if you do not consent, police may use reasonable force to take the sample. 

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