Director of Public Prosecutions v Chia

[2022] VCC 2138

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No. CR-21-01867

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHIAN REGGIE CHIA

---

JUDGE:	HER HONOUR JUDGE LEIGHFIELD
WHERE HELD:	Melbourne
DATE OF HEARING:	4 April, 4 May, 29 September, and 15 November 2022
DATE OF SENTENCE:	15 November 2022
CASE MAY BE CITED AS:	DPP v Chia
MEDIUM NEUTRAL CITATION:	[2022] VCC 2138

REASONS FOR SENTENCE
---

Subject:Criminal Law

Catchwords:          Sentence – theft from employer – rolled up charge – guilty plea – substantial reparation – family hardship – impact of COVID-19

Cases Cited:Markovic v The Queen; Pantelic v The Queen [2010] VSCA 105; Boulton v R (2014) 46 VR 308;

Sentence:  Community correction order for 3 years with unpaid community work

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Deanna Caruso	Office of Public Prosecutions
For the Accused	Zoran Petric	Garde Wilson Lawyers

HER HONOUR:

Background

1Mr Chia, you have pleaded guilty to a single rolled-up charge of theft from your employer, Leitz Tooling Systems Pty Ltd (which I will refer to as ‘Leitz’), which was committed in the period between 5 November 2008 and 21 May 2020 and totalled $339,952.01. The maximum penalty for theft is 10 years’ imprisonment. You were aged between 58 and 70 years of age during the period of your offending. You now come before the court as a 72-year-old man with no prior convictions.

Circumstances of Offending

2The circumstances of your offending are as follows.

3

Leitz is a business which both manufactures tools, and provides sales and service in respect of those tools. The parent company of the business is located in Germany. You commenced working for the Australian arm of Leitz on

13 December 1994 as an accountant. You then became the company secretary in August 1995. Your role included responsibility for the company accounts, financial reporting, banking, reporting to the ATO and ASIC, payment of wages and invoices, transferring money between company accounts and foreign currency exchange. In your role, you reported directly to Mr Christopher Jones, who was the Managing Director of the business from 1996 until late August 2019 when he retired, and then to his successor Mr Samuel Czyczelis. As a result of both your role in the company and the number of years you had worked there, you not only held a senior and trusted position, but you were also considered to be a highly trusted employee and friend by Mr Jones.

4Shortly after Mr Czyczelis took over as the Managing Director in 2019, he made a number of requests of you to see the company credit card receipts. Part of the company policy was that all payments be countersigned. You did not provide the receipts, which caused Mr Czyczelis to become suspicious. You then took leave between 21 and 26 May 2020. Whilst you were on leave, Mr Czyczelis collected the mail and discovered that Mr Jones’ company credit card was still being used when it should have been collected and cancelled, by you, upon his retirement. As a result of this, an investigation commenced through which it was discovered that you had been using a variety of means to appropriate company money for your own personal use throughout the previous eleven and a half years.

5The investigation revealed that:

(a)   you had used Mr Jones’ credit card for your own personal use on 180 occasions between 20 June 2012 and 21 May 2020. This included both during his tenure as Managing Director where his purported signature appeared on approval forms which he had not signed, and after his tenure where you had used his credit card as your own. The purchases made on the card included payment of utility bills, household expenses, fuel purchases and fines. The total amount of unauthorised payments from that card was $75,873.95;

(b)   you had used your own company credit card – which was intended to be used for company purchases only – on 272 occasions between 20 June 2012 and 21 May 2020 for your own personal expenses. The purchases made on the card included payment of council rates, utility bills, supermarket items, travel expenses, car expenses and fines. The total amount of unauthorised payments from that card was $25,413.86;

(c)   

you had provided a credit card issued to a former employee – which was intended to be used by that employee only, and only for company

purchases – to your nephew when the employee left the business. Your nephew, who lives in Hong Kong, then used that card 69 times between

25 February 2016 and 16 September 2019. The total amount of unauthorised payments from that card was $4,584.81;

(d)   as part of your employment, you had a salary sacrifice arrangement for your lease car. In 2012, you changed your salary sacrificing to superannuation but did not cancel the direct debit payments which the business was paying for your car lease. Between 31 August 2014 and 30 April 2020, you authorised 72 direct debits across two separate cars which totalled $61,651.96 of payments to which you were not entitled; and

(e)   as part of your role you were the only company officer authorised to make foreign exchange payments to overseas suppliers. Between 5 November 2008 and 7 August 2019 you made numerous unauthorised exchanges by making a smaller payment for your own use coupled with a larger authorised payment. When Mr Jones would see the receipt in Australian dollars and the invoice in another currency it would look roughly correct. Using this method, you stole $172,427.43.

6After the thefts were discovered, a meeting was held on 27 May 2020 between yourself and the company. Your employment was terminated. A civil settlement was reached on 29 July 2020 in which you made partial reparation and also accepted a waiver of your entitlements. This resulted in you making reparation of approximately 69% of the total amount which you had misappropriated.

7The matter was referred to police on 3 June 2020, and on 16 December 2020 you were arrested and interviewed. You made a largely no comment record of interview, however you did make admissions to allowing your nephew to use the ex-employee’s card. You were charged and released on bail.

Victim Impact

8I received victim impact statements from both Mr Jones and Mr Czyczelis during the plea. It is apparent that until this offending came to light, you had been considered to be a trusted employee by both gentlemen, and as a good friend by Mr Jones. Your conduct was a significant breach of trust and has had a substantial impact on each of them.

9In the aftermath of learning about your offending, Mr Jones has had difficulty sleeping, and is of the view that his reputation in the industry has been ruined as he is now perceived by his peers as someone who had ‘been asleep at the wheel’. Whilst Mr Jones has retained his role as a non-executive director of Leitz, he is currently in a position where he feels too embarrassed and ashamed to seek other directorships as his history in such roles has now been tarnished. He is of the view that both the monetary and mental ramifications of your offending will continue to impact on him for some time to come.

10Mr Czyczelis similarly reports that your offending has impacted upon his emotional wellbeing, as well as the manner in which he conducts himself within the workplace. Mr Czyczelis explained that he now has significantly reduced trust in his employees which changes the way he works and interacts with his employees. He also has more difficulty in trusting people within his private life. Like Mr Jones, Mr Czyczelis is of the view that your offending will continue to impact him in both his business and private life for years to come.

11From a financial perspective, Mr Czyczelis reports that your offending has also placed a heavy financial burden on Leitz as considerable amounts of money have been spent to set up additional internal auditing and financial check systems.

12

I accept that your actions have had a considerable impact on Mr Jones,

Mr Czyczelis and on Leitz, and I have taken this impact into account in sentencing you.

Gravity of Offending, General Deterrence and Denunciation

13The offending which brings you before the court is serious offending as submitted by the prosecution and conceded by your counsel. The charge you are facing is a rolled up charge covering a period of eleven and a half years and with a quantum of $339,952.01. In sentencing you on a rolled up charge, the sentence I impose must address the totality of the harm described in the charge.

14In addition to the protracted nature of the offending and the quantum involved, your theft from your employer constituted a major breach of trust. You had been entrusted with managing the company’s finances with limited oversight and you took advantage of that situation. Your offending continued over a long period of time and involved you taking steps – especially in respect of the foreign exchange transactions – to cover up your actions.

15Further, your offending was committed in circumstances where you had overstretched on living expenses and were seeking to continue to retain your lifestyle, whilst also assisting to support your parents overseas. I am told that the unauthorised Forex transactions involved you wiring money to your parents in Singapore to support them, such support being a cultural custom. However, given the time span over which these offences occurred and the dates on which each of your parents passed away, it would seem that at least some of the foreign exchange transactions post-dated their passing. Whilst all of the foregoing provides an explanation for your behaviour, it in no way excuses it. As I commented to your counsel during the plea, there are other ways in which to overcome personal financial mismanagement that do not involve stealing a significant amount of money from your employer over an extended period of time.

16I do however accept, as a mitigating feature of your offending, that you have made substantial reparation in an amount which was agreed upon in a civil settlement. I have taken this into account as a mitigating feature which demonstrates remorse and acceptance of responsibility by you of your conduct, and has the benefit of reducing the financial impact upon the victim of your crime.

Plea of Guilty and Remorse

17I also accept your plea of guilty as a significant mitigating factor in this case. You pleaded guilty to the current charge at committal mention. It was appropriately conceded by Ms Caruso for the prosecution that your plea should be considered to have been entered at a very early stage in the proceeding.

18

Your plea both facilitates the course of justice and is of significant utilitarian value. It has saved the cost and time of a trial being conducted and spared the

witnesses – and in particular your former colleagues and friends – from having to give evidence. Further, your plea gains additional weight in the current circumstances of the pandemic which has caused unprecedented disruption in the smooth running of the justice system.

19Moreover, I am of the view that your plea demonstrates your genuine remorse for your conduct – which is also reflected in the steps you took to make reparation, and the discussions which you have had with psychologist Mr Matthew Staios and Community Corrections Officer Ms Rachel Kuang, both of whom provided reports to the court.

20Overall, taking each of the above matters into account, I accept that you are entitled to a substantial discount on your sentence by reason of your plea of guilty, and have factored this into the sentence which I have imposed.

Personal Circumstances

21Turning now to your personal circumstances. You were born and raised in Singapore, and were the youngest of five siblings to your parents Irene and Chinsiang Chia. Your father worked as a pharmacist and your mother was the caretaker of the home. Your mother, father and one of your sisters are all now sadly deceased. However you still have a brother and a sister who live in Singapore, and another sister who lives in Australia.

22In 1966 you completed the equivalent of Year 10 in Singapore and then came to Australia to continue your schooling. You completed Year 12 at Scotch College in Perth, and then studied for a further three years and successfully attained a Bachelor of Accounting from the Western Australia Institute of Technology. You returned to Singapore after completing your degree to complete mandatory national service in the army. You spent two and a half years in the army and ultimately attained the rank of Sergeant in the Singapore Defence Force. You then worked in Singapore at ‘Diners Club’ for a further five years, before returning to Australia in approximately 1981 when you were 31 years of age.

23Whilst working in Singapore, you met your now wife – Kheng Low – who was a bookkeeper. The two of you married and when you relocated to Australia, you did so together.

24On returning to Australia, you worked initially as an accountant for ‘Myer Teale’ which is a carpet retailer. You held that position for approximately 10 years. As already identified in the summary of your offending, you then commenced working with Leitz in late 1994 and remained working for Leitz until your position was terminated as a result of this offending.

25You have three children, all of whom were born in Australia. Your oldest son is now 38 years of age, you have another son who is 36 years of age, and a daughter who is 33 years of age. You also have two grandchildren who are 5 and 2 years of age.

26I am told that you have been an active member of Donvale Presbyterian Church for 32 years and maintained the position of treasurer throughout that time.

27In terms of your current circumstances, you continue to live with your wife who is supportive of you, but is angry and upset about your offending behaviour. You are no longer able to work as an accountant and are currently unemployed. You still have a $50,000 mortgage over your home and are making repayments on a car. I am told that, in the aftermath of your offending, you have used most, if not all, of your retirement savings and that you and your wife are relying on the pension. However, despite these difficult circumstances in which you now find yourself, it is submitted by your counsel, and accepted by prosecuting counsel, that you are highly unlikely to re-offend in the future.

28I agree with this submission. You have no prior history; you have been on bail for almost two years with no further offending – in fact it probably is 2 years now that we have come to sentence; you are no longer able to work in your field of choice; you have no underlying issues with mental health, drugs or gambling; and you have shown genuine remorse for your conduct. These factors all tell against you offending again in the future.

Physical Health

29

This matter was originally listed for sentencing on 4 May of this year. However I acceded to an application by your counsel to adjourn the sentence hearing on the basis that you required eye surgery. I received a letter from your ophthalmologist, Dr Nathan Kerr, dated 7 April 2022, who confirmed that you have advanced glaucoma, required urgent surgery to save the vision in your right eye, and would require a period of intensive post-operative follow-up. Further enquiries made by your counsel of Dr Kerr revealed that in Dr Kerr’s opinion, if you did not receive the surgery within six weeks, you would be in danger of permanent injury to your eye. Further, Dr Kerr advised that you would require a minimum intensive recovery period through to September 2022, and that you would require ongoing treatment for a minimum period of twelve months. I accordingly adjourned the matter to

30 September 2022 for further plea and sentence – to allow for that surgery to be undertaken and for you to have a period of post-operative recovery prior to being sentenced. You did undergo the operation in the intervening period and your condition, in the aftermath of that surgery, is now being managed by way of eye drops.

Family Hardship

30

During the period of the adjournment, not only did you undergo your eye surgery but in June 2022 your wife became unwell and was diagnosed with stage 4 colon cancer. A letter from Dr Zhen Rong Siow, Medical Oncologist, was tendered on

30 September 2022 which outlined that your wife underwent an Ileostomy formation and now wears a stoma bag. She has also had two ureteric stents inserted to relieve obstructions, and commenced chemotherapy. Dr Siow identified that your wife needs substantial assistance by way of being taken to and from hospital and medical appointments three to four times per fortnight; provision of her medications including subcutaneous injections which you administer to her at home; and the changing of her stoma bag at least every other day. Further, due to the side effects of the treatment which leave her debilitated, tired and in constant pain, your wife also needs assistance in household chores including food preparation. In the letter dated 30 September 2022, Dr Siow anticipated that your wife would need your assistance with these tasks on a daily basis for at least another six months.

31On receipt of this letter, I again adjourned the matter for part-heard plea and sentence to today’s date to allow time for you to gather any additional evidence in support of a submission that the family hardship in this case would amount to exceptional circumstances and therefore give rise to a basis for an exercise of mercy in sentencing in this case.

32On the return date a further letter from Dr Siow, dated 14 November 2022, was tendered, together with statutory declarations dated 14 November 2022 provided by your sons, Sean Chia and Justin Chia. Justin has also attended at court and was willing to provide viva voce evidence in the event that it was required.

33In addition to the matters raised in his previous letter, Dr Siow clarified that your wife’s illness is both incurable and terminal, with her prognosis being dependent upon her ongoing response to her therapy and the side effects of treatment. He advised that, on average, patients with her diagnosis have a life expectancy of two to three years from diagnosis. Further, Mr Siow confirmed that due to the symptoms of the cancer and the side effects of her chemotherapy, your wife only has a short activity tolerance of 10 minutes before requiring rest; is dependent upon you for assistance in a physical sense in relation to the changing of her stoma bag and provision of both oral and subcutaneous medications; and is also dependent on you for psychological support and encouragement in dealing with her diagnosis and treatment. Moreover your wife was hospitalised on 14 November 2022, which was yesterday, and is currently an inpatient at Epworth Eastern Hospital for investigation of worsening symptoms which she is currently experiencing.

34The statutory declarations provided by each of your sons confirm that you are the only person who is in a position to be able to provide care to your wife. Justin stated that he and his wife have only recently started new jobs and both are currently in their probation periods with no leave, and need their current jobs to be able to pay their living expenses and mortgage. Accordingly, he and his wife are not in a position to be able to provide the ‘around the clock’ attention that his mum needs. Sean similarly states in his statutory declaration that given that he has just returned to Australia and only just commenced employment he is not in a position to be able to take time off work and be able to look after his mother or be there for her throughout most of the day. In the circumstances he states that you are needed at home to be the carer for his mother. I accept the content of these statutory declarations. As a result, I did not seek to hear further from Justin Chia despite his presence at court. I note that the prosecution also did not seek to cross-examine the authors of any of these documents.

35It was submitted on your behalf, by Mr Petric, that your wife’s ill health and the subsequent hardship she would suffer as a result of an immediate term of imprisonment imposed upon you would constitute an ‘exceptional circumstance’, such that the hardship upon her could be taken into account on your behalf as the basis for a plea of mercy. Mr Petric acknowledged that the authorities make clear that ‘exceptional circumstances’ is a high hurdle to satisfy and that cases where exceptional circumstances have been established are rare. He submitted, however, that this is a case where exceptional circumstances have been made out given the extreme vulnerability of your wife, and her significant reliance upon you to assist with her daily treatment.

36Ms Caruso, on behalf of the prosecution, similarly submitted that whilst the hurdle is a significant one, on the evidence you have established exceptional family hardship such that the sentence which might otherwise be imposed should be mitigated.

37In Markovic v The Queen; Pantelic v The Queen [2010] VSCA 105, at [5], (‘Markovic’) the Court re-stated the principles in respect of family hardship as a relevant matter in sentencing as follows:

1. Reliance on family hardship – that is, hardship which imprisonment creates for persons other than the offender – is itself an appeal for mercy.

2. Properly understood, therefore, the purpose and effect of the ‘exceptional circumstances’ test is to limit the availability of the court’s discretion to exercise mercy on that ground.

3. Accordingly, there can be no ‘residual discretion’ to exercise mercy on grounds of family hardship where the relevant circumstances are not exceptional.

4.The effect on the offender of hardship caused to family members by his/her imprisonment raises different considerations, to which the ‘exceptional circumstances’ test has no application.

38In both Markovic, and later cases applying Markovic, it has been made clear that whether or not, in any particular case, family hardship gives rise to exceptional circumstances is a matter of fact and degree. It has also been identified that such cases are relatively rare.

39I agree with both counsel that this is one of those rare cases where exceptional circumstances has been made out, giving rise to the court’s discretion to exercise mercy on that ground. It would, in this case, be inhumane to fail to take into account your wife’s condition and the very real need that she has for you to be present to care for her both physically and psychologically during this time, in circumstances where there is no other person available to provide that care, and in circumstances where she is very unwell and dealing with a terminal diagnosis. I note, however, that a finding of exceptional circumstances is not an automatic ‘passport to freedom’, but simply one factor that can be taken into account in sentence.[1]

[1]See, eg, DPP (Cth) v Gaw [2006] VSCA 51, [21].

Burden of Imprisonment – Age, Health, and Impact of COVID-19

40In determining the type and/or length of sentence to be imposed, Mr Petric submitted that I should also take into account that if I was to impose a term of imprisonment, the burden of any period of imprisonment which I impose upon you would be increased by reason of your age, your health, the health of your wife, and the COVID-19 restrictions which are currently in force. The prosecution did not oppose this submission.

41If I was to imprison you, at minimum, due to the current COVID-19 restrictions, you would be subject to an initial short period of quarantine, would have some limitations on face-to-face contact with your family and friends, and would have somewhat restricted ability to access courses, programs and work opportunities whilst in custody.

42Moreover, as I have already noted, you are currently 72 years of age and any term of imprisonment I impose would constitute a more significant portion of your remaining life than it would for a younger offender. I am also told that you suffer from high blood pressure and asthma, as well as from the glaucoma which requires ongoing treatment, and you would suffer additional hardship if you were in custody by reason of your concerns about the health of your wife in the community.

43I accept that if I was to impose a term of imprisonment upon you, any term of imprisonment which I impose would be made more burdensome by reason of these factors, and I take these considerations into account. I also accept that your age is a relevant factor to take into account when determining the length and conditions of any type of sentence which I impose.

Sentencing Purposes and Current Sentencing Practice

44Section 5(1) of the Sentencing Act 1991 (Vic) provides that the only purposes for which sentences may be imposed are: just punishment, deterrence both specific and general (so that means deterring you, and others, respectively, from offending in the same manner in the future); rehabilitation; denunciation; and community protection.

45It was submitted by prosecuting counsel and conceded by your counsel that given the gravity and nature of your offending, general deterrence and denunciation are both important sentencing purposes in this case. This was an appropriate concession for your counsel to make. It reflects the position as stated by the higher courts that general deterrence and denunciation are important sentencing purposes in relation to white collar crime. This is so because of the nature of such crimes, which are often committed by an offender who holds a position which makes the offending possible, and has the ability to disguise or camouflage the conduct in question; and usually involves a carefully calculated course of conduct over a long period, with deliberate repeated acts of dishonesty, and substantial amounts of money involved.[2]

[2]See, eg, Director of Public Prosecutions v Bulfin [1998] 4 VR 114, 132.

46By contrast, the weight which needs to be accorded to the sentencing purposes of specific deterrence and community protection in your case is minimal given the findings I have already made about your unlikelihood of re-offending. Further, there is no need, in your case, for any rehabilitative programs to be put in place.

47However, it is important that any sentence I impose in this case is a just sentence taking into account all of the relevant sentencing principles and factors.

48Both Ms Caruso and Mr Petric directed my attention to various sentences which have been imposed on accused charged with defrauding their employer which they considered may be of assistance in sentencing you.[3] I have read each of the cases referred to by counsel. The sentences imposed in the cases to which I have been referred range from community correction orders to terms of imprisonment with head sentences and non-parole periods. The factual circumstances of each of the cases are – understandably – different from each other. Both counsel quite rightly conceded that none of the cases referred to are completely comparable to your case in terms of the factual scenario or the circumstances of the accused. They do, however, provide some guidance as to the application of the relevant sentencing principles in this area, and can also be used as yardsticks that may be able to illustrate (although not define) the possible range of sentences available.

[3]Prosecuting counsel referred me to R vGaletta [2007] VSCA 177; Maddock v The Queen (2020) VSCA 271; Melnikas v The Queen [2016] VSCA 112; Thorpe v The Queen [2016] VSCA 158; and DPP vCaulfield [2019] VSCA 131. Defence counsel referred me to DPP vHoward [2018] VCC 967; DPP v Moeller [2018] VCC 248; and DPP v Scott [2017] VCC 1907.

49Ultimately, whilst having regard to these cases, I have sentenced you in this case on the basis of the application of the principles to the specific facts of you and your case.

Sentencing Submissions

50Turning now to the submissions which were made by each counsel on sentence.

51Ms Caruso, for the prosecution initially submitted that to reflect the relevant sentencing purposes, a term of imprisonment is warranted, and that any such sentence should be structured by way of head sentence and non-parole period. However, subsequent to the evidence being presented in respect of your wife’s ill health, Ms Caruso sought further instructions and submitted that, taking into account all matters in mitigation along with the objective gravity of the offending, and the weight which needs to be given to general deterrence, your offending still warrants a term of imprisonment, however that all sentencing purposes could be achieved in this case through the imposition of a combination sentence.

52Mr Petric, by contrast, submitted that whilst the quantum of loss is very high and any sentence imposed must satisfy the punitive imperatives of the Court – namely the sentencing purposes of general deterrence and denunciation – it would still be open in this case for a community correction order to be imposed. He highlighted parsimony as a relevant consideration and submitted that this is a case where an appropriately fashioned community correction order could be made sufficiently punitive to meet the relevant sentencing purposes.  

Parsimony and the Availability of a Community Correction Order as a Sentencing Disposition

53

As identified by your counsel, in sentencing you today, I must apply the principle of parsimony. In the particular circumstances of this case, the principle of parsimony requires me to consider whether there is any feature of you or your offending which requires the conclusion that imprisonment is the only

option – given that a community correction order can be imposed for a period of years, with both punitive and rehabilitative conditions attached.

54I had you assessed for a community correction order in this case and you were assessed as suitable. The author of the report stated that you were polite, answered all questions asked of you, admitted your actions, and expressed regret for your offending. The author assessed you as being a low risk of general re-offending and accordingly recommended that the only condition – aside from the mandatory conditions – which I impose upon the order be unpaid community work.

55I have considered the submissions of each party, the report from Corrections, and all of the relevant sentencing principles in this case. I also take into account, as identified by the Court of Appeal in its guideline judgment of Boulton v R (2014) 46 VR 308, that:

…a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide). The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.[4]

[4] At [131].

56As I have already identified, the sentence which I impose today must be of a nature which denounces your conduct, administers just punishment, and deters others from committing similar offending against their employers. Your offending was very serious for all of the reasons I have already identified. However, in your case there are also a number of significant mitigatory factors, being your very early plea of guilty during pandemic times; your remorse; the substantial reparation you have made; your age; your lack of prior history; the absence of any need to specifically deter, or protect the community from, you; and the increased burden which a term of imprisonment – if imposed – would have upon you given both COVID-19 restrictions and your personal circumstances. There is also a basis for an exercise of mercy in sentencing given the extreme hardship which a term of imprisonment would cause to your wife.

57If it was not for the combination of the significant mitigatory matters in this case and the existence of circumstances which call for me to exercise my discretion to apply mercy in sentencing you, I would have acceded to the prosecution submission that a combination sentence involving an immediate term of imprisonment coupled with a community correction order was appropriate. Ultimately, however, I am of the view that an appropriately lengthy community correction order which carries with it punitive conditions in the form of supervision and multiple hours of unpaid community work (noting that if appropriate, there are provisions for at-home community work tasks to be assigned) can sufficiently achieve the deterrent and denunciatory purposes of sentencing in this case.  

Sentence

58Mr Chia, if you could please stand up now.

59On charge 1, theft, you are convicted and placed on a community correction order which will commence today and continue for a period of 3 years. In addition to the mandatory conditions of the order, you will be subject to the following special conditions:

(i)you must report to Box Hill Community Correctional Service within two clear working days of the commencement of this order. So you need to contact them by 4 pm on Thursday at the latest.

(ii)you will be under the supervision of a Community Corrections officer for the entire period of the order – so that is for the entire three years; and

(iii)you must perform 500 hours of unpaid community work within the period of the order. So that 500 hours has to be done within the three years of the order.

60Do you understand each of those these conditions?

61OFFENDER:  Yes, I do.

62HER HONOUR:  I must tell you that if you do not comply with the requirements of the order, or if you commit a further offence punishable by imprisonment during the period of the order, then you are likely to be breached on your order. That means there might be a charge laid in relation to you not doing the order. And the matter will be brought back before me. One of the potential outcomes if you breach the order is that you may fall to be re-sentenced and may face a term of imprisonment. Do you understand that?

63OFFENDER:  Yes, I do

64HER HONOUR:  All right. Given all of those matters which I have explained to you and the conditions which apply, do you consent to undertaking that community correction order?

65OFFENDER:  Yes, I do.

66HER HONOUR:  All right.  You can have a seat now.

S6AAA Declaration

67Pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty I would have imposed a term of imprisonment of 9 months, together with a community correction order for a period of 2 years with supervision and unpaid community work. That only deals with the discount that applies for the plea of guilty and not any reduction in relation to the other matters that I have taken into account. There has been a substantial reduction in sentence, as I indicated there would be, by reason of that plea of guilty.

Ancillary Orders

68As a matter of completeness, I note there is no ancillary orders sought by the prosecution.

- - -