Director of Public Prosecutions v Cittadini
[2013] VCC 1741
•1 November 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-12-00747
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| ROSANNA CITTADINI |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 October 2013 | |
DATE OF SENTENCE: | 1 November 2013 | |
CASE MAY BE CITED AS: | DPP v Cittadini | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1741 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Conspiracy to cheat and defraud – Breach of trust – Co-offender principal in offending – Very good prospects of rehabilitation – Wholly suspended sentence
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J Jassar | Mr C. Hyland, Solicitor of Public Prosecutions |
| For the Accused | Mr D Sheales | Grigor Lawyers |
HER HONOUR:
1 Rosanna Cittadini, you have pleaded guilty to one charge of conspiracy to cheat and defraud. The maximum penalty for this offence is 15 years’ imprisonment.
2 The matter was opened as follows, in what was said to be a statement of agreed facts.
3 I was told that your co-offender, a Leanne Heber, commenced employment with Downer EDI (Engineering) Proprietary Limited, referred to as “Downer” in the course of the plea. In July 2006, she was a commercial assistant at the Tullamarine premises. She was promoted to the position of commercial and operations supervisor on 14 September 2009, and was a trusted employee.
4 Downer installs and maintains satellite and cable services for subscription television providers including FOXTEL. The provider, after entering an agreement with a customer would contact Downer to undertake the installation works. Downer has a nationwide panel available of approved sub-contractors that it used to carry out the work.
5 Ms Heber was responsible for processing sub-contractor claims for jobs completed and facilitating payment to sub-contractors for those jobs.
6 Approved sub-contractors were engaged by Downer for jobs through its WorkNet computer system. I was told that typically the process was:
(i)That the sub-contractor would access WorkNet to ascertain a list of jobs to be completed. Each sub-contractor or its technician workers were given a specific identification code to use in WorkNet.
(ii)When the sub-contractor finished a job, it would access WorkNet, complete details of the job and initiate payment for it by a Statement of Intended Payment (“SOIP”).
(iii)Downer staff, including Ms Heber, checked the jobs and amounts claimed in the SOIP. Once checked and altered if necessary, the SOIP would be emailed to the sub-contractor. It was assumed that the SOIP was correct if the sub-contractor did not respond. When correct the SOIP was entered into WorkNet.
(iv)In the weekly run to pay sub-contractors, Downer staff produced a final SOIP. A copy of it was emailed to the sub-contractor and its payment was initiated by a manual process. Payment was made electronically into the bank account that the sub-contractor nominated.
7 Each approved sub-contractor or its technician workers were given a specific identification code to be used in WorkNet.
The conspiracy – Charge 1
8 In relation to Charge 1, I was told that Ms Heber and you had a well-established business relationship. You were the sole director of Service Tech Proprietary Limited, referred to as “Service Tech” in the plea. This company was an approved sub-contractor to Downer. Its bank account was nominated at the National Australia Bank, with a designated account number of course. The only approved technician for the period of September 2009 to August 2010 was Rajinish Sharan.
9 In 2009, Ms Heber entered into a criminal scheme with you. In the scheme Ms Heber would either:
(a)falsely alter the final SOIP for Service Tech by inflating the jobs completed and or its amount; or
(b)create a completely false final SOIP, by taking details of previous jobs from completed SOIPs and pasting them into the final SOIP for Service Tech, and then arrange for payment of the overall amount to Service Tech.
10 As part of the conspiracy to cheat and defraud Downer, Ms Heber and you had an arrangement between yourselves for sharing the inflated payment. The conspiracy operated until August 2010.
11 In the period between 2 September 2009 to 18 August 2010, Ms Heber made 47 inflated payments to Service Tech, involving an overpayment of $370,252.84.
12 Service Tech banked all the overpayment into its NAB account.
13 Representatives of Downer had reason to make discreet observations of Ms Heber’s work during August 2010, and observed a false SOIP being created. Investigations were then carried out.
14 Police were notified on 2 September 2010, and a search warrant was executed Ms Heber’s home and at your home on 9 September 2010.
15 At Ms Heber’s home, a Commonwealth Bank Card in your name was found.
16 Investigation of the Commonwealth Bank account revealed that you had opened a CBA account, with a designated number of course, on 9 February 2010 and received a debit card in your name. The debit card was then given to Heber, together with the PIN, and thereafter you arranged a regular crediting of that account and depositing the total sum of $76,386.86, in the period between 18 February 2010 and 19 August 2010. Ms Heber withdrew the deposited amounts on a regular basis and the account was closed on 14 September 2010 with a zero balance. This was one of the ways Ms Heber obtained monies for her benefit during the period of the offending.
17 Ms Heber was arrested on 9 September 2010, and in a record-of-interview conducted that day, she made some admissions to being involved in altering payment spreadsheets and to sharing the proceeds with Service Tech. Ms Heber admitted that you opened the Commonwealth Bank account and to being provided with the card to operate the account, and said the account would be credited by you, by depositing money into that account. She made voluntary statements to the police and was sentenced on 2 April 2012 for her role. She also undertook to give evidence.
18 Ms Heber also stated that you and she shared the overpayments from September 2009 to August 2010.
19 You were interviewed on 9 September 2010. You agreed that you had received payments, and alleged Heber was just using your account to pass money she was entitled to from Downer. You denied any knowledge of the alleged conspiracy.
20 This matter was listed for trial on 15 July 2013 and it was in the reserve list. I was told negotiations were conducted between the parties, following which you pleaded guilty to the charge on the indictment on 16 July 2013.
21 I was told that further agreed facts as between the Crown and the Defence are that:
(i) Ms Heber was the principal organiser and recruited you.
(ii)Ms Heber identified a weakness in Downer’s systems, that there was a lack of interface between SOIPs and COIN and
Ms Heber needed someone outside the company.
(iii)Ms Heber determined the quantum of each individual fraudulent transaction without reference to you.
(iv)Your role was to receive the money from each fraudulent transaction, an unknown quantum until the monies were deposited into your bank account and forward onto Ms Heber her share.
(v)The benefit to you was in the vicinity of $150,000 to $160,000.
(vi)Civil proceedings were instituted against you by Downer EDI and restitution of $260,000 had been made by you. You were jointly and severally liable for monies owed to the company.
(vii)Your role was not theft from an employer, unlike Ms Heber, who could be classified as having a higher breach of trust. I take this to mean that she was in a direct position of trust with her employer and therefore her breach of that trust was at a higher level than yours, albeit that, as an approved sub-contractor, you were also in a position of trust insofar as Downer was concerned in my view.
22 Your offending is serious and must be denounced. I must also impose a punishment which is just in all of the circumstances. Further I must place strong weight on general deterrence in a bid to deter others from conducting themselves as you have. This was not a one off instance of a decision to act in a dishonest way, but a protracted course of conduct where you chose to facilitate and derive benefit from a scheme into which you entered with your co-offender. While it may be that you were first somewhat naïve about the true extent of the seriousness of your wrongdoing, at all times you knew that you were acting contrary to the rules and interests of Downer, a company with which you had apparently a good relationship. However, you were motivated by greed in behaving as you did. Your company was already doing well. As you told your psychologist, you were financially stable and had income producing assets and you were able to fund annual holidays, however this was not enough for you and you took money to which you knew you were not entitled. While you were not in a direct position of trust in the way that your co-offender was, you were also trusted as an approved sub-contractor. So in terms of that relationship, you breached Downer’s trust in you as I have said. Further, when interviewed by police, you were prepared to underplay your level of involvement in this fraudulent scheme.
23 Your role was not a passive one in this offending. You actively accommodated the conspiracy and took significant sums to which you were not entitled. While you were not the driving force in the scheme, you derived a substantial sum from this and were prepared to do what was necessary to facilitate its ongoing operation. However, your role was a lesser one to that of Ms Heber's. She was the mastermind and the controlling and driving force in the conspiracy. There are a number of matters which distinguish you from her which go in your favour:
· Her superior role to yours in the offending.
· At the same time that she was committing the offence in which you were involved, she was also defrauding the same company to the extent of $500,000, having recruited another sub-contractor to assist her as you had.
· She received a greater benefit from the offending in which you were involved.
· She was in a direct position of trust which she breached, therefore her beach of trust was more significant than yours.
· She had three relevant prior matters, all of which involved fraud and two of which also involved breaches of trust, which was placed in her by her employers.
· You have paid $260,000 in restitution in response to a civil claim, where you and the co-offender were jointly and severally liable, which is a good deal more than the benefit you received. Your co-offender has not made any repayment.
24 On the other hand, your co-offender pleaded guilty at an earlier stage than you and gave an undertaking to give evidence, which entitled her to a substantial discount in the sentence that she would otherwise receive. I have factored in all of these matters in determining the sentence which is appropriate in your case.
25 I was told that you feel a great sense of shame for your offending and I accept that you do. I also accept that you have expressed genuine remorse for your offending which is, in part, signified by the fact that you have paid back more than the amount that you personally owed, notwithstanding that legally you may have been held responsible for the entire sum taken. As was said in the course of discussion, remorse is a complex issue. On the one hand you have expressed remorse for your actions, but on the other you chose to contest these matters right up to the trial stage. In the end, I accept that coming to terms with the reality of what you have done has been difficult for you and you have been in a most fragile state at the prospect of going to gaol. This appears to have a good deal to do with the course that you have chosen to take up to the time of trial, however I accept that you do have remorse for your offending, both because of its impact on you and others, and also because of the dishonesty and as you have termed it yourself, the stupidity of your actions. These sentiments have come through the character evidence that was presented. Matters put to me on your behalf by Mr Sheales and the psychological report prepared by Ms Emma Foy.
26 In your favour, I take into account your plea of guilty and the stage at which it was entered. In pleading guilty before the trial commenced, you have saved the witnesses the time and anxiety of giving evidence at trial and you have also saved the community the time and expense of running a trial. However the discount in sentence will not be as great as it would been, had you entered pleas of guilty at the earliest opportunity and a contested committal hearing had not taken place. I emphasise that you are not to be punished for contesting proceedings to the stage that you did, but your sentencing discount is somewhat reduced.
27 You are 44 years old and have no prior convictions. You are married and have two children, one who is six years old and the other is aged 11. Your offending has resulted in the collapse of your business and you are in financial ruins; however you and your husband are doing what you can to keep your family afloat. Your husband‘s job was also lost through your offending, however I was told he has now found work through a relative, installing windows in apartment buildings. You have also been working in the past months and have been looking after your children.
28 Your parents sold their house in Preston to pay the restitution on your behalf. You are from a very hard working family, who believe that debts must be paid no matter what, which has meant that your parents have sold their home in order to assist you. You and your husband have repaid a proportionately small sum to your parents and I was told that whatever you owe your parents ultimately will reduce your share of your inheritance. Although it is true that you have brought all this financial hardship upon yourself, I take it into account as part of the punishment you have already suffered in respect of your offending.
29
I also take into account the report dated 7 October 2013 of Emma Foy, psychologist, who says that you suffer from chronic adjustment disorder with mixed anxiety and depressed mood. The symptoms of this include extremely high levels of stress and anxiety, depressed mood and panic attacks and suicidal thoughts. You have attempted suicide on one occasion. Fortunately you were discovered in time for tragedy to be averted.
Mrs Cittadini, it is often the case that those who are discovered committing criminal offences are under immense strain, for fear of the consequences of their actions. It does not appear however, you were under much of a strain when you were enjoying the fruits of your dishonesty.
30 In any event in the future, you would do well to continue counselling and treatment. Your family, especially your children no doubt, need you and it is important that you realise this and continue on a path of rehabilitation. I make allowance for your fragile mental state and the likely deterioration of this, should you be incarcerated, but time in gaol would be harder for you than for someone without such difficulties and I have had regard to this aspect in determining whether an immediate gaol term is warranted in your case. I also factor in, that it would be a great hardship for you to be separated from your family, especially your children.
31 Although it may well be the case that your approach to this matter has led to delay in finalising it, I take into account in your favour the fact that since your offending, you have used the period of a little over three years to rehabilitate yourself and that you have had the anxiety of these matters hanging over your head for this time. Of course it might be said that you could have reduced that anxiety by pleading guilty earlier, but this does not mean that your anxiety for this period is not a relevant mitigating factor; nor is the period of delay in which you have rehabilitated yourself.
32 I accept that you are of otherwise very good character and have a strong and impressive work ethic and history. These traits were attested to by your former employer, Mr Whitehead, who spoke of your hard work and integrity in the workplace over a period of 25 years that he was associated with you. Even now he said he would have no hesitation in recommending you for employment, although he properly acknowledged that in doing so, he would have to appraise any prospective employer of your offending. Your oldest sister, who has also lent you money to help you with your present predicament, also spoke highly of you and the kindness you have extended to your sister-in-law, who is suffering from cancer. You have also been a team manager for your 11 year old’s soccer team, which involves you devoting between 12 and 15 hours a week to the soccer management. Your sister and former employer both spoke of your heartfelt remorse, sense of shame and the immense strain you have been under since this matter came to light.
33 In sentencing you, I have also taken into account your background, of which I will not recite chapter and verse. Suffice it to say that you come from a loving, supportive and hardworking family. Upon leaving school in Year 10, you commenced an apprenticeship as a hairdresser. You then went however into office work and from there you went from strength to strength in various workplaces, until some years on you started your own business, which, until the discovery of this offending, was flourishing.
34 In light of your lack of prior convictions, lack of subsequent offending, your repayment of more than your fair share of the debt owed to the victim, your strong family support, your resolve to take responsibility for your actions and also factoring in the immense strain you have been under, in terms of your fear of going to gaol, I find that you have very good prospects of rehabilitation and I need place only minimal weight on specific deterrence.
35 Your co-offender was sentenced by her Honour Judge Nicholson on 26 March 2012, to three years imprisonment in respect of Charge 1, and to two years imprisonment in respect to Charge 2. Charge 1 was the offending which concerned you. After cumulation, your co-offender was sentenced to a total effective sentence of four years imprisonment, with a non-parole period of two years and six months imprisonment. However, as I have indicated, there were significant features which distinguished your situation from hers.
36 The Crown submitted that an appropriate sentence in your case was one of immediate imprisonment, with a head sentence of between 15 and 20 months, with a non-parole period of between nine and 15 months. Although such a range falls within that available for a wholly suspended sentence, the learned prosecutor submitted that an immediate sentence was the only fitting disposition in your case. Mr Sheales, on your behalf, submitted that a wholly suspended sentence was warranted in all of the circumstances and he did not quibble with the terms of imprisonment that were indicated in the sentencing range by the prosecution.
37 Although this is serious offending and a gaol term is certainly justified, I am of the view that appropriate weight can be given to all relevant sentencing considerations, including the regard I must have to parity, by imposing a wholly suspended sentence. However, in doing so, I take the view that the top of the range for the head sentence is justified in all the circumstances of your case. As I said at the plea hearing, I cannot see the utility of an immediate gaol term in your case. Before and after this offending, you have done a great deal to lead a law abiding life and I have every expectation that you will not re-offend. In your case, I am of the view that there is nothing to be gained and a good deal to be lost by incarcerating you immediately. It is more than apparent that you have undergone a good deal of punishment already for what you have done, and as I have said, that is one of the matters I have taken into account when sentencing you. Could you please stand up Mrs Cittadini?
38 In respect of Charge 1, you are convicted and sentenced to 20 months imprisonment, however I wholly suspend that term of imprisonment for three years. That means that if you commit another offence which is punishable by imprisonment in the next three years, then you will be required to serve that 20 months gaol, unless you can show that there are exceptional circumstances which would make it unjust to do so. Do you understand that?
PRISONER: Yes.
HER HONOUR: If not for you plea of guilty, I would have sentenced you to an immediate term of two years imprisonment, with a non-parole period of 12 months. Take a seat for a moment please Madam.
COUNSEL: As the court pleases.
HER HONOUR: Anything arising out of that? COUNSEL: No, Your Honour.
HER HONOUR: All right. Yes, thank you. We will now adjourn.
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