Director of Public Prosecutions v Cirianni
[2018] VCC 2288
•19 December 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-18-01426
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SANDRO CIRIANNI |
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JUDGE: | HER HONOUR JUDGE COHEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 December 2018 | |
DATE OF SENTENCE: | 19 December 2018 | |
CASE MAY BE CITED AS: | DPP v Cirianni | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2288 | |
REASONS FOR SENTENCE
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Subject: SENTENCING
Catchwords: Plea of guilty; dishonestly obtain financial advantage by deception; total $210,612 dishonestly obtained from employer over almost 3 years; defrauding employer not-for-profit organisation; fulsome co-operation with employer’s investigation and police; on discovery, full admissions made and apologies; full restitution including employer investigation costs; obsessive concern about own physical health and mortality; no causal connection found between physical or mental health and offending; some increased risk to health if imprisoned; offender aged in late 40s; no prior offending; serious medical condition; Prosecution concession that CCO within range.
Cases Cited: R v Verdins [2007] VSCA 102, Boulton v R [2014] VSCA 342 DPP v Moeller [2018] VCC 248, DPP v Howard [2018] VCC 967; DPP v Mastrangelo [2018] VCC 87; DPP v Leimonitis [2018] VCC 586
Legislation Cited: Sentencing Act 1991 s 6AAA
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms D. Hogan | Office of Public Prosecutions |
| For the Accused | Mr B. Murphy QC Mr M. McLay | Melbourne Legal Group Pty Ltd |
HER HONOUR:
1 All right, Mr Cirianni I have a lot to explain about the reasons for the sentences I am going to impose. You can remain seated while I do so and I will tell you when I require you to stand.
2 Sandro Cirianni, you have pleaded guilty to three charges of dishonestly obtaining financial advantage by deception from your former employer, Guide Dogs Victoria.
3 The maximum penalty for each such charge is 10 years' imprisonment.
4 In August 2011, you had commenced employment with Guide Dogs Victoria as the general manager of Client and Guide Dog Services. In this position, you were on the senior leadership team reporting to the CEO. You started at an annual salary of a little over $162,000. You resigned effective 31 March 2016 and your offending was discovered after you had left.
5 Between 11 April 2013 and 30 November 2015, you had dishonestly obtained from your employer, amounts totalling $178,413.89, by submitting for it to pay, 45 false invoices. These were in respect of various expenses incurred by you for renovations and improvements on your own home in Bundoora, ranging from air conditioners, bathroom fittings and replacement roofing, to fencing and installation of a pool. Mostly you had created false invoices in respect of these goods and services and forwarded them to the finance personnel at your employer. You were apparently not questioned, because there were building works being carried out for your employer at the time. On two occasions you had falsified invoices where work had been undertaken at Guide Dogs Victoria by altering them to a larger amount and you received the difference. This conduct is the basis of Charge 1, which is a rolled up charge covering the 45 instances of dishonestly submitting false invoices for payments which were to your financial advantage.
6 In mid-2014, you had been issued with a corporate credit card in your name, which was to be used to cover incidental business expenses. In July 2014, you signed the Guide Dogs Victoria corporate credit card policy. Between 29 July 2014 and 31 March 2016, when you ceased employment there, you used that card for 117 separate purchases which were not authorised within the policy. These totalled $27,680. The card was used for such expenses as meals at restaurants and cafes, items from hardware stores and furniture stores, car washes and groceries. You provided signed bank statements with explanations and cost codings for the purchases, to mislead the employer's personnel into accepting that these were authorised uses of the credit card. These matters are the subject of Charge 2, another rolled up charge.
7 Charge 3 is based on your dishonest use of fuel cards. Your employer had company vehicles to be used by staff members, each car having a fuel card located within it. Between 31 July 2014 and 31 March 2016, you dishonestly obtained financial advantage for yourself, by retaining the fuel cards from some corporate cars you had used, and using those cards to purchase fuel for your private vehicles to the value of $3,302. Further, when the lease expired on a vehicle assigned to you through salary sacrifice, the fuel card which had been issued associated with that vehicle was not returned. From October 2014, you retained that card and continued to use it to purchase fuel, the value of such fuel being $1,217. The amount of unauthorised fuel purchases by you with the corporate fuel cards was $4,519.22 which as I've said is the basis of Charge 3, another rolled up charge.
8 In June 2016, Guide Dogs Victoria undertook a fixed asset stocktake and the whereabouts of three air conditioning units for which it had paid came into question. It was discovered through the supplier that they had been installed at your home address, the supplier having been told that this was part of your salary package. The money for those, $7,222, was reimbursed to your employer upon you paying the supplier directly.
9 As a result of that discovery an internal investigation was commenced and a forensic audit was obtained for the 2015 financial year. These uncovered that you had purchased items and works to be done at your personal address and had the invoices paid by your employer. I have already described the extent of dishonest use of the corporate credit card issued to you and of fuel cards.
10 On 29 July 2016, you participated in an interview with lawyers engaged by your employer. During that interview, you made admissions to the offending and apologised. You said you were terribly sorry and willing to pay the money back. You said that you felt terribly ashamed and embarrassed to have put your colleagues in that position. Apparently in making these admissions, you disclosed about $25,000 more taken by you than had been discovered by the investigation.
11 You told the lawyers interviewing you, that because you had been diagnosed with supra-ventricular tachycardia you thought you were going to die and took these monies thinking of the future of your family. I note that that heart condition is elsewhere described as having been diagnosed in 2003. In August 2016, you wrote a letter of apology to your employer, expressing remorse and apologising for the position in which you had placed that organisation. You said that you loved the organisation and had made a terrible mistake. You said you had been suffering with anxiety and depression for many years and wanted to provide for your family, and that had reached a climax when you were diagnosed with a serious condition - multiple cavernomas in your brain.
12 On 22 August 2016, you were interviewed by police and again made extensive admissions to this offending, saying you were remorseful and that it was a terrible mistake, and that you did these things because you thought you were going to die and your family would not have anything.
13 In August 2016 and before you were interviewed by police, you had paid back to Guide Dogs Victoria the total amount dishonestly taken, and also paid the costs of the audit and the lawyers who were part of the investigation. Notwithstanding fulsome admissions by the end of August 2016, and possibly due to the restitution making the victim organisation less motivated to pursue criminal charges, there was considerable delay in charges being filed against you. You were not charged until 17 April of this year, that is 2018 - almost 20 months later.
14 At the second committal mention on 9 July 2018, you indicated an intention to plead guilty. I accept that that was at an early opportunity and having already made the admissions you had much earlier, it was always clear that you would plead guilty to suitable charges.
15 The delay in the charges being brought is relevant to your sentence in two respects. First, it meant a prolonged period, more than 20 months after you made admissions to your employer, during which you had the uncertainty and stress of the prospect of criminal charges hanging over you. I accept that that would have weighed considerably on you, especially with what I have heard of your anxiety about your future generally. That entitles you to some moderation in your sentence.
16 Further, in the period since the offending was discovered there has been no known further offending by you. That will be taken into account as an indicator that you have ceased this type of offending and that it was confined to the period charged. It is relevant to your prospects of rehabilitation as showing that in the interim you have proved yourself capable of ceasing such dishonest behaviour.
17 There is no victim impact statement filed. You had resigned your employment before discovery of this offending, and as I have said have apparently fully reimbursed the employer for all misused funds, as well as for its expenses in investigation. That, however, does not mean that this was victimless crime. Dishonestly using an employer's money for one's own advantage is serious offending, and a clear breach of trust towards not only the employer itself, but towards other staff who worked there. You held a senior position in the administration of a not for profit organisation. You must have well known how hard people within that organisation were working to obtain funding including, relying on the goodwill of members of the community to make donations and to provide voluntary services. Your dishonest diverting of such funds for your personal benefit was a breach of trust of the people who had made donations or volunteered their time in good faith and tends to undermine community confidence that the organisation's funds will be used predominantly for the purposes for which the organisation exists. Having worked for so long and apparently with real commitment to the not-for-profit sector, it is totally contrary to such work and involvement to bring the sector into disrepute or potential loss of respect through such offending.
18 I must assess the objective seriousness of your offending and your personal culpability. The maximum sentence, that is of 10 years' for each charge, is an indication of objective seriousness, but obtaining financial advantage by deception covers a wide range of offending. These are each rolled up charges and the single maximum penalty applies to each. The fact that these are rolled up charges indicates that the offending was of an ongoing nature rather than a rash decision or single mistake, or single lapse of judgment. You had plenty of opportunity to simply cease further dishonest use of the employer's funds, but the submitting of invoices for works at your home continued over a two and a half year period, and the misuse of the corporate credit card and fuel cards appears to have lasted for well over 18 months.
19 Objectively, dishonestly obtaining from an employer is a breach of trust towards the employer itself and fellow employees. In this case, as I've said, as the employer was a not for profit organisation the betrayal of trust extends to supporters of that organisation. Your dishonest actions extended over a period of almost three years, and involved multiple individual decisions to use your employer's funds for personal benefit. As I have said, there were some 45 individual invoices submitted under Charge 1, over a hundred personal purchases on the corporate credit card, being the subject of Charge 2, and an unknown number of instances of wrongly charging fuel to fuel cards to a total of more than four and a half thousand dollars. The total you obtained under these charges of some $210,000 was a considerable sum, although by no means the highest value of fraud or theft from an employer that comes before this court.
20 As to your personal culpability, as I have said, I see nothing spontaneous or rash about this offending. Your apologies when interviewed, and in a letter to your employer, describe your offending as “a mistake”, or “a terrible mistake”. The first time you submitted a personal invoice to be paid, or used a corporate card for a personal benefit, may have been a mistake; it may have been a rash or spontaneous act, but that you repeated or continued this dishonesty for such prolonged periods and on so many individual occasions does not indicate to me that it was a mistake. It was very bad judgment by you, with dishonesty at his core.
21 It is said on your behalf that this offending was aimed at providing for your wife and children for the future, as a result of you being intensely focused on your own mortality and indeed suffering from some serious health problems. You certainly told various people at the time of explaining your offending that it was connected with your own health concerns. I accept that there had been circumstances within your family, from your father's prolonged illness to a succession of serious adversities for your sister, together with your own diagnosed physical health issues, that led you to concentrate on your own health and potential mortality. However, the most serious of your health conditions, which I shall discuss later, had not been diagnosed when you started the offending under Charge 1, nor had its first symptoms appeared.
22 I am not satisfied that at that stage you were receiving any treatment for depression or anxiety, nor that any psychological disorder was contributing to your offending. Had you taken funds from your employer to invest for your children's future, whether by way of educational or scholarship funds or even direct investments of which they were named beneficiaries, I might have seen the connection more clearly between your view of your own mortality and the reason given for offending. I simply do not accept your explanation nor your senior counsel's urging of me to find that this was an investment in bricks and mortar for their future, by making the improvements to your house. In fact, the investment in the installation of a swimming pool and tiles for it, re-roofing the house, and constructing a fence and bathroom renovations, would not necessarily increase the capital value of the home in any event - and anyway likely not to the extent of the money paid for these works. I do not accept on the balance of probability that this was genuinely to provide for the future of your wife and children, as opposed to being for your own personal financial benefit from which they of course would also gain in the immediate comforts of a renovated home, and possibly in the future indirectly a greater inheritance.
23 In my view your offending was serious in betrayals of trust, and having regard to the number of individual acts comprising it over extended periods. The sum was not as great as is seen in a number of other cases, but was substantial, and in my view it was for personal gain, even if in the context of also being concerned for your wife and children's future. I assess your offending as falling at the low end of mid-range of offending of this type.
24
I turn now to your personal circumstances. You are now aged 49. You grew up in Melbourne, one of four children of parents who had emigrated from Italy. You regard yourself as having had a happy and supportive family life, although there were some problems with your father's behaviour due to his excessive consumption of alcohol. Nevertheless from what I have heard you grew up in and remain part of a close family. You completed Year 11 at school, then
Year 12 at Preston TAFE. You subsequently completed a Bachelor of Applied Science at RMIT. After graduating you obtained employment with what was then Commonwealth Serum Laboratories, where you remained employed for some 17 years', starting in scientific roles, then moving into management positions. Then you worked for a winery for two years' before joining the management team at Guide Dogs Victoria in 2011.
25 You have been married for more than 23 years and regard your wife as your closest friend and confidante. You have three children, now aged between 21 and 15. You regard your family as your focus and primary commitment. Indeed as I have said, you say that it was to provide for them in the event of your death that you engaged in this offending. I have already said that I am not convinced that there is any logic to that assertion, given the nature of the payments you dishonestly arranged, but I do accept that you do care deeply about your wife and children's future wellbeing. I also accept that they continue to provide very strong emotional and physical support as well as motivation for you.
26 You have various health conditions that are apparently another significant focus for you and have been for many years. I am told that in about 2003 you developed an abnormality in your heart rhythm. This coincided with a period during which your father's health seriously deteriorated and you became anxious about whether you too would not survive for long. You told Mr Newton that it was at that stage that you became so convinced that your death was imminent, that you made enquiries about funeral arrangements. The letter that has been tendered from a funeral services company indicates that you made that first contact in March 2013. It indicates that you approached the funeral director’s to secure a funeral plan for yourself, telling him it was because you were depressed because of your father's ill health, and you did not want to burden your family with organising your funeral. You returned in February 2014 to say that you had been diagnosed with a condition within your brain which could result in your death any time.
27 Your father's health remained a focus of family concern and commitment for many more years, including his requiring regular dialysis, and you and your siblings, I am told, were attentive in taking him to hospitals and visiting, and you were close to him. I am told that your father died in September 2016.
28 I have been told of and provided with medical reports about a further serious medical condition from which you suffer. In 2014, you were diagnosed with multiple cavernomas in your brain - a condition involving multiple abnormal bundles of blood vessels in various areas of your brain. There is a risk from these of blood leakage or major haemorrhage. The history of this condition was that in late 2013 you had experienced an acute onset of vertigo and also noticed palpitations which lasted for about a day, but completely resolved. After a third further similar event on 5 February 2014, you were admitted to hospital. An MRI of your brain showed multiple cavernomas and you were referred to a neurologist and then to Associate Professor Yan, an Endovascular Neurointerventionist.
29
You were first seen by Professor Yan in late February 2014, when you were feeling quite well and he found no relevant symptoms, but the MRI was suggestive of multiple cavernous malformations. He recommended a diagnostic angiogram to exclude an alternative diagnosis in light of family history of heart arrhythmias. In April 2014,
Professor Yan confirmed the diagnosis of multiple intracranial cavernous malformation. He recommended reviews and intermittent repeat MRIs. An MRI in March 2016 showed a few more cavernous malformations had developed. You returned in April 2016 due to episodes that your wife described of you appearing a bit confused, blank and emotional, and after referral to another neurologist and further tests, you were diagnosed in July 2016 with epilepsy. Initial medication was insufficient but after substantial increase in dosage, episodic symptoms decreased. As I understand it you still take medication for that condition.
30 You attended Professor Yan again in October 2016 after a recent episode that caused you concern. This was shortly after your father's death, and Professor Yan suspected that this episode was anxiety related. A further MRI in July 2017 did not show evidence of new micro haemorrhages and the condition appeared stable. According to a brief report from Professor Yan in February this year, it was unsuitable that you participate in high impact sporting activities because theoretically any minor trauma to the head may increase the risk of brain haemorrhage with potentially serious consequences. You were felt capable of participating in non-impact sports.
31 Your GP, Dr Wong, reported in May 2018 that you have a risk of cerebral haemorrhage if your blood pressure is uncontrolled, or if you have a significant head injury, and you've been advised to monitor your blood pressure closely, avoid straining or lifting, and to avoid head injury. As I understand you have remained on medication for your blood pressure.
32 Based on all of this medical material, your lawyers argue that there is a grave risk to your health if you were to be imprisoned, because there would be the risk of head injury and with that the risk of cerebral haemorrhage. It was said that you might be a particular target of personal attack if your crime were known amongst other prisoners.
33 I accept that you have a particular condition from which there is a genuine risk of serious, and possibly grave, consequences. I am not convinced that imprisonment creates grave risk of head injury for you. There is no reason to believe that your blood pressure would not be able to be adequately monitored or medicated if necessary. I note that despite this condition, you were fit to travel overseas by aeroplane earlier this year when you applied for variation of your bail. I am satisfied that you suffer from a condition which does pose serious risk if certain circumstances eventuated. I cannot exclude that the risk of such circumstances arising during imprisonment is higher in that environment than if you are living in your own home amongst people who are aware of those risks. I am satisfied that if imprisoned you would be particularly worried about what might occur and such constant concern would make your time in prison more burdensome.
34 Your sister gave evidence in your support. She is clearly distressed by the prospect of you facing imprisonment. She personally has faced considerable adversity, and despite the distress it caused her to recount these matters, she apparently offered to do so to support you. She described that it was in 2003 that your father was diagnosed with an auto-immune disease and ultimately was placed on dialysis, regularly ending up in hospital, and that you and your siblings would all assist in getting him there and visiting. She also described that you and your siblings have all maintained strong support for your mother and have virtual daily contact to support and protect her.
35 In 2007 your sister was diagnosed with a tumour on her pancreas, which after treatment had a very good outcome, but she understandably found the experience very traumatic. She spent three months in hospital and greatly appreciates your support through daily visits and being present when surgeons were explaining matters to her. That was clearly of immense importance to her. She also suffered the great trauma of her partner dying in 2012, and again she relied upon you greatly - you were the person that she first told. Subsequently, when you were discovered to be suffering multiple cavernomas, you discussed it with her, and that led to a similar diagnosis in her, which explained symptoms she had of pain and pressure behind her eye. Due to this diagnosis she had been told by a specialist that she had to avoid high stress levels. This made her willingness to give evidence under the distress that obviously evoked in her, all the more brave and generous of her.
36
I also heard evidence from a long-time friend of yours since school,
Mr Michael DeLeo. It seems that it was to him that you first revealed your offending. That was about a year ago, and he said you explained it to him as arising after having been refused life insurance because of your illnesses, of which illnesses he was aware. He said that you told him you'd made a stupid mistake of taking from your employer so you could provide for your family's future. Mr DeLeo described you being very concerned as to how your family would react and he encouraged you to tell them. He reassured you that he did not hate you, when you asked as a result.
37 Other character references, and there are a considerable number of them, refer to your devotion to your family and involvement in wider activities of your children, including their clubs, involvement in community and sporting clubs, and working for education and training in mental health in the community. You are admired within family circles for having achieved your career and being the first in the family to go to university. You have been regarded as law abiding, trustworthy and of high integrity and a kind and generous person. These come from writers who have known you for very long periods, and in various contexts, from your time at CSL to personal friends and family connections, to your parish priest. They variously express surprise about your offending, and their views that it will not occur again. Some talk of your remorse, and all link your offending to what they know of your own and your father's ill health. Some of those clearly do not know that the offending started before the start of symptoms of your brain condition or its diagnosis, and one links your offending to the death of your father, however according to the dates, by then your offending had ceased.
38 I accept that all references are genuine in saying that the offending was not expected of your general character, and that they show that you have longstanding friendships which remain very supportive of you. I accept that you have genuinely felt embarrassed amongst family and friends for this offending to have become known.
39
Submissions on your behalf also point out that your reputation in the not-for-profit field will have been lost, and you are unlikely to ever work in that sector again. I do not know in what field you are now
self-employed. It is ironic that you were apparently named the “Not-For-Profit Manager of the year” in 2015, whereas unbeknownst to others, during that year, you were well entrenched in the dishonest conduct that is the subject of the three charges that bring you to this court.
40 A report was tendered and oral evidence called from Mr Patrick Newton, a Clinical and Forensic Psychologist. He first saw you in August 2016, and carried out two assessment consultations in light of the offending to which you had then recently admitted. It took some time for charges to be brought, so there were four further periodic reviews with him over the following 12 months, and he understood that you were concurrently participating in counselling with another psychologist. You participated in six further consultations with him, between March and November of this year, so overall Mr Newton had contact with you and the opportunity to assess you over more than two years and on a large number of occasions.
41 When first assessed, Minnesota Multiphasic Personality Inventory was administered, being a comprehensive self-report measure to assess psychological difficulty or disorders. The result was considered unreliable because the score was one in 10 million above the norm, and Mr Newton concluded that the profile was exaggerated and not credible. He said in evidence that he was not surprised at that result, because you presented as obsessed about your somatic functioning and provided it as an explanation for your offending. He administered the same test in November 2018 and his impression was that there has been progress in your handling of yourself and he thought a valid and interpretable profile was shown. He considered you remained concerned about health related matters, which continued to be a key source of anxiety for you, but your profile was no longer characterised by exaggeration or reports of symptoms that lacked credibility. He found more generally your profile as obtained by the testing was consistent with elevated anxiety and a high degree of stress and worry.
42 In his report dated 28 November 2018, Mr Newton gave the opinion that over the course of his meetings with you, your mood had been consistently anxious and you had experienced periodic bouts of mild depressive symptoms, but despite these had maintained your composure without evident difficulty throughout your consultations with him. He thought that your focus on your physical health and wellbeing was not unrealistic given your conditions. You view yourself as being afflicted by complex and multifaceted health problems, and believe that your health is fragile and you could be struck down by further complications at any time. So intense is your worry about this that you are prone to interpret benign symptoms or normal variations in bodily processes, as being signs of serious illness or medical calamity. I interpolate that this view seems to me consistent with the reports of Professor Yan over the years since your diagnosis. Mr Newton considers this has become something of a lightning rod for other worries in your life. You showed particularly high levels of anxiety about your physical health when first assessed in August 2016. While your anxiety, he felt, would certainly not have affected your awareness of the wrongfulness of your conduct, he thought it likely to have clouded your thinking, and had an effect upon your ability to reflect upon your situation with calm composure. He felt that two aspects of your anxiety had emerged as your plea hearing approached. You expressed mounting concern about managing your health challenges were you to be placed in custody, and in particular anticipated you would face significant difficulties in accessing even routine specialist care. Beyond that you were concerned about the risk of accidental injury to your head, and the potential consequences that could follow.
43 Nevertheless, at the time of his report of 28 November 2018, Mr Newton did not consider that you would meet criteria for an anxiety related disorder or adjustment disorder. Further, he did not consider it likely that you were suffering a diagnosable anxiety related disorder at the time of your offending conduct. After I raised this when he gave oral evidence, he explained that he does not consider that at present you are suffering from a condition that would meet the threshold for an adjustment disorder or illness anxiety disorder or for somatic symptom disorder, because at the moment your reactions are not that intense. He said that since writing his report he has read the report of Dr Wong, your GP, (of 2 May of this year) stating that in 2007 you had severe generalised anxiety with depressed mood and insomnia for which you were prescribed medication, and had psychological counselling with a clinical psychologist, and supportive psychotherapy with a consultant psychiatrist. From that information Mr Newton was prepared to say that because of the medications you were probably suffering illness anxiety disorder, or somatic disorder, at the time of the diagnosis of the multiple cavernomas in June 2014. However, I note that in Professor Yan's report dated 28 February 2014, after consultation with you, medications were recorded as “nil regular”. Dr Wong does not state that medications for anxiety or depression continued after 2007. Without clarification from Dr Wong or Professor Yan, I am not satisfied on the balance of probabilities of Mr Newton's projection back to that period, that you were probably suffering from a diagnosable mental health disorder, especially in light of his opinion in his report only a few weeks earlier.
44 I do accept from Mr Newton's opinion that, were the court to impose a custodial sentence, the period of adjustment to the custodial setting may well pose particular challenges for you, and it is likely you would experience a resurgence of your anxiety related symptoms. Mr Newton considered the indications are that your progress for recovery from your anxiety is good, and you have strong supports in the community to assist with that. I accept that you are intensely focused on your own health, and what you perceive to be greater risks to it, through limitations on your access to specialist care were you to be imprisoned. I accept that you are particularly anxious through your focus on these matters. To that extent I take into account that you would find the experience of imprisonment more burdensome due to your worries about your physical health and might well take longer to adjust to the prison environment for that reason. However, I am not satisfied that any of the limbs in what lawyers call “Verdins principles” directly apply to require specific moderation of your sentence.
45 What I do regard as a significant factor in mitigation of your sentence, is that you have made total restitution of the amounts dishonestly taken, including from what I am told, was about $25,000 more than the investigation had discovered, which was disclosed by you. You also paid for your employer's expenses in the investigation. In sentencing, courts give credit for restitution having already occurred, to encourage that to occur. Further, it is a strong tangible sign of contrition for the offending itself. In saying this, leniency for restitution should not be mistaken for the court saying that the offending does not require punishment because all amounts have been repaid. Nor should it be seen as buying one's way out of prison or out of more severe punishment.
46 The other strongly mitigatory factor is your fulsome cooperation with the investigation and plea of guilty. You are entitled to considerable leniency for these. There was considerable utilitarian value in saving the community the time and cost of more extensive investigation by police and of disputed hearings. These types of investigations and trials take considerable time because of the sheer number of transactions and documentation in relation to them which must be proved, so I accept that there was real value in your admissions and early pleas of guilty. I also accept that from the time that you were confronted with these matters you accepted responsibility, made full admissions, and your plea of guilty is another sign of that. You expressed remorse from an early stage and I am prepared to take your plea of guilty as also reflecting remorse. I have allowed for considerable leniency to reflect your cooperation with authorities and early plea of guilty.
47 I have already mentioned what I have taken into account in moderation of your sentence for the effective delay in prolonging your uncertainty and your stress, and your having shown that you have totally ceased offending in the meantime.
48 Your counsel submit that a CCO would be an appropriate sentence to meet all sentencing considerations in your case. The prosecution conceded that a CCO would be within sentencing range. I recognise that the decision by the Court of Appeal in Boulton emphasises that a CCO should not be underestimated as real punishment, and may be suitable for some relatively serious offending. That it could replace the previous sentencing options of partially or wholly suspended sentences was recognised.
49 I was referred to a number of other cases involving thefts or frauds where the money had been fully repaid, or at least substantial sums had been repaid, often as a real hardship to the offender. I shall not repeat the details of all of those cases. County Court sentences imposed this year and drawn to my attention, with monetary range between $100,000 and $300,000 involving stealing directly or indirectly from employers, include some where wholly non-custodial sentences of CCOs were imposed, and some of combined sentences - that is, imprisonment for less than 12 months followed by a CCO. Specifically in the cases of Moeller[1] and Howard[2], Community Corrections Orders were imposed, and in Mastrangelo[3] a term of six months' imprisonment, followed by a two year CCO. Each of those cases involved offenders who had pleaded guilty, who had no prior convictions, cooperated with investigations, who had strong character references, evidence of mental health disorders, and some considerably disturbed or disadvantaged upbringing that had contributed to their mental states. Each had repaid some or all of the amounts dishonestly obtained.
[1]DPP v Moeller [2018] VCC 248
[2]DPP v Howard [2018] VCC 967
[3]DPP v Mastrangelo [2018] VCC 87
50 On the other hand, in a recent Court of Appeal decision that was in August of this year, of Leimonitis[4], leave to appeal was refused in relation to a sentence of one year and nine months' imprisonment, with a non-parole period of 12 months; imposed on a female in her early 20s who had dishonestly obtained by deception a total of just over $200,000 in 25 transactions over some three years, in her role as a client manager in the claims department of an insurer. She did not explain what she had done with the funds, nor why she took them. She had pleaded guilty, made frank admissions to her employer, shown remorse, sent a letter of apology and repaid a portion of the amount taken and was working to make further restitution. She had excellent prospects of rehabilitation and was a young offender. She also had psychological material which included relating her major depressive disorder and anxiety to her offending.
[4] DPP v Leimonitis [2018] VCC 586
51 There are of course numerous other cases involving thefts or fraud during employment, and many involve where gambling addiction has not only caused loss of large sums of money, but has also rendered restitution impossible due to the offender having no residual assets. Fortunately for you there was no such complication or obsession driving your stealing - not in the sense of the gambling at least - and you were able to repay the total amounts taken.
52 I must take into account current sentencing practice, although it is but one factor and a guide rather than setting boundaries as to sentencing range.
53 The nature and seriousness of your offending requires a sentence that denounces your conduct, adequately punishes it, and conveys general deterrence - that means it sends a message to others tempted to do similar, that they will face stern punishment. I do not regard there as being much need to deter you from further offending. I regard your prospects of rehabilitation as good in light of your fulsome acceptance of responsibility for this offending, expressions of apology and remorse, lack of prior offending, and strong support and stable base in the community from family and friends.
54 I consider that that the circumstances here are very close to the borderline of requiring some term of imprisonment to appropriately punish and denounce your conduct and sufficiently deter others tempted to do similar. As I have said, the prosecution concedes that a Community Correction Order would be within appropriate sentencing range in all the circumstances of your case. In light of that concession by the prosecution, and the sentencing requirement that no more severe sentence be imposed than is necessary to achieve all sentencing purposes, and in particular that imprisonment should not be imposed if alternative penalties would be sufficient, I have ultimately decided that a total effective sentence short of imprisonment could adequately meet the requirements. That is particularly because there has been full restitution, fulsome cooperation since discovery and also taking into account that you have a health condition that does pose more risk to you in prison than would be posed by similar conditions to a person not suffering that condition. I refer here to your multiple cavernomas on the brain.
55 I had you assessed for a Community Correction Order to leave that option open and you were found suitable. Your counsel has pointed out that it was recommended that certain conditions be imposed, including one to address further treatment of your mental health. Would you stand up now please?
56 Sandro Cirianni, you are sentenced as follows. On Charge 1, you are convicted and placed on a Community Correction Order to last for three years from today. The conditions will be that you must perform 300 hours of unpaid community work, submit to supervision and attend as directed for assessment and treatment for any mental health disorder.
57 In addition, all usual terms of a Community Correction Order apply. They will have been explained to you during the assessment but I will summarise them briefly again. First you must report to your nearest Community Correction Office which is South Morang, within two working days which means that you must report by 4 pm this Friday. You must, during the whole currency of the CCO report to CCO officers any change of address of where you are living or where you are working, and you must do that within two clear working days. You must obey all lawful instructions and directions of Community Corrections Officers and submit to visits by them if required. You must not leave the State of Victoria without prior permission from Community Corrections officers. Above all, you must commit no further offending which could attract a term of imprisonment during the whole of the CCO. By that it could be any offence that attracts a terms of imprisonment, even if imprisonment were unlikely to be imposed, and as you well know any obtaining financial advantage by deception or theft carries a potential term of imprisonment. I do not expect you will commit any such further offences but you need to be aware that that would amount to a contravention of the CCO. Do you understand the terms and conditions of the CCO?
58 OFFENDER: Yes I do.
59 HER HONOUR: Do you agree to comply?
60 OFFENDER: Yes I do.
61 HER HONOUR: All right, I must also explain that were you to fail to comply, either by further offending or by not fulfilling the conditions, you may be brought back to court for a contravention of the CCO. A contravention of a CCO is itself an offence for which a sentence of up to three months' imprisonment may be imposed. Also depending on all of the circumstances of non-compliance and how much has been satisfactorily completed, you may be re-sentenced on the original charge, that is Charge 1 - obtaining financial advantage by deception of more than $178,000.
62 Now on Charge 2, you are fined $3,000 with conviction. On Charge 3, you are fined $750 with conviction. I must state what your penalty would have been had you not pleaded guilty to these charges. That's always artificial because much of the mitigatory material here is not only your plea, strictly pleading guilty, but the signs of contrition and the cooperation you have given and of course the restitution you have already paid. But I state for the purposes of s.6AAA of the Sentencing Act that if you had not pleaded guilty but been found guilty of all of the equivalent of this offending after a trial, because they would not have been rolled up charges, I would have imposed a total effective sentence of two years' and nine months' imprisonment, with a non-parole period of 21 month's imprisonment.
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HER HONOUR: Now you can take a seat Mr Cirianni while the orders are prepared. Let me just check, there were no other ancillary orders in this case?
MS HOGAN: No ancillary orders Your Honour.
HER HONOUR: All right now the orders need to be put into the computer for the CCO to be produced.
MR MURPHY: May it please Your Honour.
MS HOGAN: As Your Honour pleases.
HER HONOUR: Just before this order is confirmed in relation to payment of fines, the orders now direct this to the fine enforcement body but - - -
MR MURPHY: Yes. Fines Victoria Your Honour - - -
HER HONOUR: Fines Victoria. I think there's - - -
MR MURPHY: He'll get a letter.
HER HONOUR: There's a letter. I think that there is some time for payment given you are not seeking a particular stay.
MR MURPHY: No, no. Thank you.
HER HONOUR: Yes all right. The Community Corrections Order, I'll have it shown to both sides’ counsel just to check, and assuming it's in order, taken to
Mr Cirianni to sign.
MR MURPHY: May it please Your Honour.
MS HOGAN: Yes thank you, Your Honour.
HER HONOUR: All right I'll ask my associate to take that to Mr Cirianni.
Mr Cirianni it's been checked by your counsel, but you should read it again and if you agree it reflects the terms I've explained, would you please sign it and then I'll sign it. All right I've now signed that Community Correction Order.
Mr Cirianni you can leave the dock, you'll be provided with a copy of this as well as the prosecution and I'll stand the court down before the next matter comes on, to allow others to leave. Stand the court down for five minutes.
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