Director of Public Prosecutions v Carey
[2020] VCC 1106
•24 July 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-20-00108
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KRISTY CAREY |
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JUDGE: | HIS HONOUR JUDGE M.P. BOURKE |
WHERE HELD: | Melbourne |
DATE OF HEARING: | |
DATE OF SENTENCE: | 24 July 2020 |
CASE MAY BE CITED AS: | DPP v Carey |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1106 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms H. Baxter | Office of Public Prosecutions |
For the Accused | Ms A. Cannon |
HIS HONOUR:
1Kristy Renee Carey, you are to be sentenced for one charge of obtaining a financial advantage by deception. The maximum sentence is 10 years imprisonment.
2You pleaded guilty before me on 16 July. When interviewed by police, on 31 October 2019, you exercised your right to silence. However, you pleaded guilty at a committal mention hearing in the Magistrates' Court on
28 January 2020 and the matter was then listed for plea hearing in this court.3You receive the benefit of your plea of guilty and a high level of cooperation in the proceeding, both from an early stage. When confronted by your employer, who was your victim, in May 2019, you fully admitted the offending. Your plea has facilitated the interests of justice and accepted responsibility. It expresses remorse. I accept that you are genuinely remorseful.
4At your hearing, which also ran on 16 July, Ms Baxter for the Crown tendered a written Crown summary and the victim impact statement of Christopher Mantello. Ms Cannon, for you, tendered the forensic psychological report of Mathew Barth dated 2 July 2020, the report of treating psychologist Joanne Garfi dated 3 July 2020 and a large number of letters of character reference. Both counsel provided an outline of plea submissions.
5The circumstances of your offence are set out in the tendered Crown summary which is Exhibit A. My own summary may therefore be shorter. It is also informed by matters put on your behalf, not challenged by the Crown.
6You began your employment with a business named Mantec Projects as bookkeeper and office manager on 22 January 2018. Mantec Projects was described to me as a construction company. It employed directly only eight or nine people; that seems to be its administration. It also seemed to have operated on a larger scale with subcontractors. Only you and director, Christopher Mantello, had access to the business accounts.
7Within six or seven weeks of your employment you began, on 8 March 2018, to transfer moneys into your own bank account. That continued for about thirteen months until 16 April 2019, when Christopher Mantello discovered your fraud. The total of the financial advantage obtained, the account balances of moneys moved into your bank account for your benefit and use, is $155,742.95.
8Your method was relatively simple. You came across what appears to me to have been a fault in the company's accounting software package. It was a second account in the name of a regular supplier, Barwon Timber. The correct Barwon Timber account was in regular, typical use. That is, regular payments were made in response to Barwon Timber invoices. The second account was also incomplete, having no banking details attached. You entered your own bank account details. You began and continued to raise shadow invoices which mirrored, in all relevant ways, the legitimate ones. Effectively you paid to yourself the invoice amounts. It was put on your behalf that you told yourself that it would be a one-off deception; but it was not detected and, as I have said, you continued until found out in April the next year. You have not repaid, as yet, any moneys, albeit you indicate consent to a compensation order in the sum of $10,000. It is that lesser amount because the company was covered for such loss by insurance. The $10,000 represents the insurance excess paid. It appears that the insurer makes no claim for compensation. Despite the passing of now over fourteen months since the matter was reported to police, and nine months since you were charged, you had until very recently taken no other steps to pay Mantec compensation for that $10,000.
9Of course, I do not treat this as a matter adverse to you on sentence, however, you have not had the benefit hitherto, of such a further expression of remorse. This morning I raised this matter with counsel and that has led to a condition imposed on the order to which I shall sentence you. That will become clear.
10You had access to and used the bulk of moneys placed into your account. I was told that there was only a balance of $3,000 credit when a search warrant was executed on the account in September 2019. There is not in this case, not uncommon explanations of gambling or other identifiable costs, addictions or particular extravagances. The extra moneys available to you seem to have been spent on a broad range of what can be called lifestyle benefits. Ms Baxter for the Crown conceded that an analysis of your account revealed no particular or large withdrawals. Ms Cannon put that the additional funds went to alleviate existing family debt and to allow you and your family a 'more comfortable lifestyle', perhaps in part encouraged by a culture of appearances within the community in which you lived. She pointed to no exceptionally large debt or obligation.
11The victim impact statement of Christopher Mantello is an understated, unemotive description of the effects of your offending. It focuses upon the time and costs related to investigating your fraud, insurance advice and claim, Christopher Mantello performing your duties after dismissal and replacing you. He speaks of pressure and stress, including in the context of his wife's pregnancy. There were difficulties in managing other staff reaction. He notes a personal disappointment. There were a number of various related costs to the company. Thankfully, he states there was not dramatic financial impact in respect of working capital and cashflow. His statement strikes me as a generous or at least conservative description of things.
12You have just turned 42 and have no prior offences. You were raised and educated in Cobram, the eldest of four children. You seem to have grown up in a basically functional, supportive family; although your father is seems to have been demanding and unaffectionate. Your parents separated over ten years ago. In response to this offending, your father and brother have cut you off. Your mother and two sisters remain supportive.
13You were a competent student at school and completed Year 12 to enter University in Bendigo. However, you found the years at school very difficult socially. You suffered bullying, the examples of which were outlined to me were quite extreme. You left university and completed a TAFE course in Business Management. In recent years, you have also completed a Diploma of Finance. You have been employed in various positions. It seems mainly in administrative and/or finance. There are over ten jobs listed in Ms Cannon's outline. Prior to your employment at Mantec you were at Aussie Loans for four years, seeking to make a career in mortgage broking. That did not turn out successfully.
14You are married with two children, aged eight and five. Your husband, whilst at first responding with shock and some anger, is supportive of you. Other members of his family and friends are also supportive. This is reflected in the character evidence tendered. I add that a constant theme in that evidence is your commitment to family.
15Both forensic psychologist, Mathew Barth, and your treating psychologist Joanne Garfi, diagnose adjustment disorder with depressed mood. This is not just reactive to your present predicament. You present as a person of low self-esteem, one with strong feelings of inadequacy. These are seen to be longstanding, sourced in childhood and your developing years. Mr Barth states under the heading 'Professional opinion':
'The most salient features of Ms Carey's mental status when I evaluated her was significant depressive symptoms. She described feeling hopeless about her future and reported constant sadness and emptiness about her life circumstances. Additionally, her self-esteem is very low. She is prone to fixating on her perceived failings.
A detailed assessment of Ms Carey's personality and behavioural adjustment identified some problematic features. Ms Carey's self-esteem is very low and she is prone to feeling perpetually insecure and inadequate. Moreover, she has tended to focus on the need of others, while foregoing her own desires'.
16This was serious offending. It was prolonged. It involved a very substantial level of financial advantage. As common to this offending, it was a major breach of trust. Propositions, as put here, that frauds such as this can be seen as unsophisticated and prone to detection are somewhat blunted by the relationship of trust that makes the fraud possible and able to be maintained. Such offending often causes major damage, particularly to smaller businesses. Here, that is not stated to be the case.
17The circumstances of offending make relevant considerations and purposes of moral culpability, deterrence, particularly here, general deterrence, the need to condemn the offending and proportionally punish you.
18The usual sentence for offending of this type and at that his level is one of imprisonment.
19However, there are also important mitigating and moderating factors. They include the following:
1.Your plea of guilty and cooperation. My further consideration of the evidence, particularly the psychological and character reference evidence, leads me to find that you are very and genuinely remorseful. You suffer deep shame.
2.To some extent, the circumstances and personal context of the offending. Your psychological state and vulnerability at the time of offending clearly do not lead to application of the primary Verdins principles. Also, I was at first sceptical about the proposition that you were motivated by financial difficulty or security to your family. Objective factors do not seem to strongly support, or at least justify that. However, again after further consideration of the psychological and other evidence, I see vulnerabilities such as low self-esteem and sense of failure playing a role in what you did, and doing so in the context of anxiety about your family. I have come to the position that this is not just a case of greed or self-indulgence. The combination of the psychological evidence, your background and descriptions of you in the tendered letters provides a cohesive picture, in my view.
3.Your personal history and circumstances. This includes that you present to me as a very fragile person, emotionally and psychologically. Imprisonment would be, in my view, a much greater hardship for you than many others. That would be so both in terms of likely deterioration of your mental health and high anxiety about your family. The present development of the COVID-19 health problem in custody would add to this. I bear in mind higher court statements about risk, stresses related to that and necessary restriction, including to family support. I find that these would provide particular difficulty for you.
4.You are of otherwise good character. At 42, you have no criminal history. I recognise that this is not unusual in cases of this kind and, for example, explains employment in a trusted financial role. You are still entitled to an appropriate benefit of it. This and the character reference evidence, which I have found particularly significant in this case, persuade me that you are fundamentally a decent and not self-interested person. This is relevant to my assessment of your remorse. I also bear in mind the impact of being cut off by your father and brother in this regard. It seems to me that specific deterrence has little role to play in my sentence. I see your prospects of rehabilitation to be good. Part of this is that you receive psychological treatment and support from Ms Garfi. Her report states eighteen sessions as of June 2020 and which began very soon after discovery of your offending. Of course the importance of general deterrence remains. However, that must be balanced against the moderating factors personal to you which I find. To some extent, bearing in mind what I find to be the level of your vulnerabilities, you can be seen as a less appropriate vehicle for general deterrence.
20The combination of these factors has persuaded me, unusual as I have said, in a case like this, that the relevant sentencing purposes can be met other than by a sentence of imprisonment.
21I have received a report that you are suitable for a community corrections order. I requested that report considering a sentence combining imprisonment and a community corrections order upon release. However, as may be clear, I have further considered this case. The order should be of a duration and contain punitive conditions which attempt to reflect the seriousness of your offence. I shall also impose a condition of the order that you make compensation to your victim of $13,000. This is made of the insurance excess paid and the increase of insurance premium caused by your offence. This was raised and discussed with counsel this morning.
22Having considered what I see to be the relevant matters, I sentence you as follows. You are convicted and I impose a community corrections order of three years duration. The usual terms apply. The additional conditions are that you perform 350 hours of unpaid work over that time. Fifty hours of engagement in therapeutic conditions can be set off against that. That you be under supervision and that there be mental health treatment as directed. It is clear to me from the suitability report that that will be a continuation of the psychological treatment and support of Ms Garfi. I also impose a special condition that you pay to Mantec Projects the sum of $13,000 within twelve months of the commencement of the order. The method or methods by which you do that will be a matter for yourself. Now that order needs to be printed out now. What is the right Community Corrections Office Ms Cannon?
23MS CANNON: I believe it would be Werribee but I'm hoping if I'm wrong about that, my instructor - I'm getting a nod from my instructor, so Werribee Your Honour.
24HIS HONOUR: Well can you - your instructor is there is she not? Is he or she ‑ ‑ ‑
25MS CANNON: She is.
26HIS HONOUR: Yes, thank you.
27MS CANNON: Ms Moore. So it is Werribee.
28HIS HONOUR: All right, so it needs to be at ‑ ‑ ‑
29MS CANNON: Yes and she sent me a text, yes.
30HIS HONOUR: It needs to be at Werribee. We will print it out now and then I need to explain in more - now what's the best way of getting her to sign it? I will sign it today. Then does it need to be sent perhaps to your instructing solicitors?
31MS CANNON: Yes I think that's right, Your Honour, and I ‑ ‑ ‑
32HIS HONOUR: And who is that?
33MS CANNON: That is GTC Lawyers in the Werribee office. Your associate, Your Honour, has the relevant email ‑ ‑ ‑
34HIS HONOUR: All right, thank you.
35MS CANNON: ‑ ‑ ‑ details of my instructor. So it would go that way.
36HIS HONOUR: All right. Yes, now you have heard what I have had to say
Ms Carey. You have been given an opportunity, which is unusual, but the matter is not over for you. I have imposed a community corrections order which starts today and ends on 23 July 2023. Now you must attend at the Werribee Community Correctional Services. The address will be on the document, sent to your instructor within two days. That would be Monday I would think.37The usual terms that apply are these, that you do not commit another offence for which you could be imprisoned during that three years. You must comply with an obligation or requirement under regulation that you do not attend any work site appointment or the like under the order, effected by alcohol or drugs or in possession of illegal drugs. You must report to and receive visits from Community Corrections. You must let Community Corrections know within two clear working days of a change of address or job. You must not leave Victoria without getting permission to do so and you must obey all lawful instructions of Community Corrections. The additional conditions are that you perform 350 hours of unpaid community work over that three year period, 50 hours of treatment and rehabilitation, so undertaken can be taken as hours set off against it. You will be under supervision of a Community Corrections officer for the three years. What happened to the special condition?
38ASSOCIATE: Do you - I've got a compensation order, do you want ‑ ‑ ‑
39HIS HONOUR: No.
40ASSOCIATE: All right.
41HIS HONOUR: We will get ‑ ‑ ‑
42ASSOCIATE: Sorry.
43HIS HONOUR: I will continue to read. You must undergo any mental health assessment and treatment as you are directed, that will be a continuing, as required counselling, enter a treatment with Ms Garfi. The condition that I spoke of earlier has not been added and we will add to it now. That should be that you pay compensation in the sum of $13,000 to Mantec Projects within twelve months of the commencement of the order.
44MS CANNON: Your Honour, could I indicate, unless it has been rectified - I've just had a message from my instructor that they've lost sound, but it might be back again. Could Ms Carey nod if she can hear us?
45HIS HONOUR: Yes, thank you.
46MS CANNON: Yes, all right it's back. Thank you.
47HIS HONOUR: All right, well I do not think I need to say what I have said again.
48MS CANNON: It was just for one very short period, so that is fine Your Honour, thank you.
49HIS HONOUR: Yes, thank you. I have included, I might say the mental health treatment and the supervision order because of the serious nature of offending and its relationship to those matters psychological that I spoke of. I think that is what should happen.
50MS BAXTER: Yes, Your Honour.
51MS CANNON: Yes I agree, Your Honour, thank you.
52HIS HONOUR: Our system has let us down again. It refuses to produce the order with the additional condition. I will state what it is now, I think you would be aware of it, that you pay compensation of $13,000 to Mantec Projects within twelve months of the commencement of this community corrections order. Maybe it is coming now. Thank you. What has happened, has it come or not?
53ASSOCIATE: No.
54HIS HONOUR: So no good? Now Ms Carey, do you understand those conditions and the nature of the order?
55OFFENDER: Yes, Your Honour.
56HIS HONOUR: And do you agree to them? Do you consent to the order?
57OFFENDER: Yes, Your Honour.
58HIS HONOUR: Yes all right, well I am going to sign it when it is produced in its right form and then it is going to be sent to your instructor and you need to sign it and what you need to do is to go with the signed order to the Werribee Community Corrections Office in Synnot Street by the end of Monday. All right, is there anything else - no, I need to indicate a - do I need to indicate a s.6AAA sentence? I think I do, do I not?
59MS BAXTER: Your Honour is not technically required to if the sentence is only a community corrections order.
60HIS HONOUR: I am not? It obviously would have been a sentence of imprisonment, probably a combination sentence, bearing in mind the psychological matters, but it would have been of a significant period before release. All right, yes I can now sign. All right, now that is it is it? Thank you Ms Cannon and thank you Ms Baxter, I will ‑ ‑ ‑
61MS BAXTER: Thank you, Your Honour.
62HIS HONOUR: I will now stand the matter down or the court down, that means I am going to turn you off. Thank you.
63MS CANNON: Thank you, Your Honour.
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