Director of Public Prosecutions v Coluccio, Guiliana
[2013] VCC 572
•15 April 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-12-02351
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GUILIANA COLUCCIO |
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JUDGE: | His Honour Judge Leckie | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 15 April 2013 | |
CASE MAY BE CITED AS: | DPP v Coluccio, Guiliana | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 572 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms T. Russell | |
| For the Accused | Mr I Crisp |
HIS HONOUR:
1 Giuliana Coluccio, you have pleaded guilty to five charges of theft. The maximum penalty for each of these offences is ten years imprisonment. The circumstances of your offending are set out in the agreed summary of prosecution opening which is Exhibit A. I will consequently give only a short summary in this judgment.
2 In 1990 you joined the ANZ Bank as an employee and after nearly 20 years of service you had achieved the position of Manager of Lending Services. Your role was to recover debts from clients who had defaulted on their loans. This meant you had access to funds paid in respect of debts owed to the bank.
3 During the period of September 2009 to December 2011 you abused your position of trust and diverted ANZ funds into six personal bank accounts for your own use. The techniques you used were not particularly sophisticated. For example cheques payable to the ANZ when received were deposited into one of your accounts using a counter deposit form. You simply inserted your own bank account number but left out the name of the account.
4 They were then processed by other unsuspecting employees of the bank. Two other simple but dishonest techniques were also utilised. All techniques relied for their success upon the fact that you were a manager and those employees below you consequently accepted the documents on face value. During the period of your offending 60 transactions were performed and a total of $280,676 was stolen.
5 However no customers of the ANZ Bank suffered financial loss as all the stolen funds belonged to the ANZ Bank. The bank discovered the offending in February 2012 and you were interviewed by the bank. You admitted your dishonesty and your employment was terminated. The matter was turned over to police who conducted an interview with you in March 2012.
6 You made full and frank admissions. During the interview you stated that you started offending due to family pressures at home. Your husband had lost his employment and your marriage was experiencing difficulties. You were surprised at the amount that had been stolen as you thought it was more like $100,000. You told police that the money went to pay bills and that your husband had been spending more than you both could afford.
7 It is noteworthy that in the interview you claim to have stopped offending of your own volition. That was in December 2011. This was prior to the bank discovering your dishonesty which was not until February 2012. The prosecution have accepted this statement in your interview as being true and correct, as I do.
8 You also expressed remorse for your conduct and a desire to pay back the money to the bank. These are serious offences. It involved a significant breach of trust. The offending was systematic and continued for two years and three months. A large amount of money in total was stolen from the bank. However as I noted the systems used were not particularly sophisticated, relying largely on your position as manager and those employees below you who processed the documents relying upon their accuracy.
9 There are a number of mitigating factors as your counsel pointed out during the plea. You have pleaded guilty and I take that into account in your favour. You have saved the community the time and cost of a trial and witnesses the ordeal of giving evidence. You also made full and frank admissions to the bank when they discovered the discrepancies and then later to the police when they interviewed you.
10 You indicated at the earliest possible opportunity your intention to plead guilty to these charges. You indicated your remorse in the record of interview and also in the psychological reports which have been tendered your remorse was noted by those practitioners.
11 You have now repaid the money that you stole from the bank. In these circumstances I am prepared to accept that you do have genuine remorse for your conduct. Your personal history and circumstances are set out in the report of Mr Healey, psychologist. The report is dated 22 March 2013 and Is Exhibit 1. I have taken the contents of that report into account.
12 You are now 40 years of age. You were raised in a caring, supportive home environment with an older brother. Your father is deceased and your mother aged 72 lives alone in Clayton with serious health problems. You have frequent contact with her and provide what support you can at this difficult time of her life.
13 You completed Year 12 at school and then joined the ANZ Bank in February 1990 serving that bank for some 20 years and rising to the position of Manager of Lending Services before being dismissed for this offending. Your health was sound when you were young but you developed some gynaecological problems and now require treatment for an anaemic condition. Since 2011 you have been obliged to undergo blood infusion procedures two to three times a year.
14 You also take medication for asthma and a depressive condition from which you now suffer. You were married in 1999 and have two young daughters aged six and nine. The younger one also suffering from asthma and anaemia and requires medical attention. Since being dismissed from the ANZ Bank you have obtained work in retail, working at night and weekends until recently when you obtained a job with a firm at Airport West.
15 You have also obtained a loan of $200,000 from your relatives and have repaid the debt you owed to the bank. Currently your home is on the market and upon the sale of that property you intend to repay your relatives the money that you have borrowed. You also have sought and obtained treatment and counselling from a psychologist at Greenvale Medical Centre and the contents of that report I have taken into account which are in a letter dated 10 November 2012 and was exhibited as Number 2 in this plea.
16 You have no prior convictions and you have no subsequent offending. In light of all this material I am satisfied that your chances of rehabilitation are excellent. In fact I would be extremely surprised if you offended again. However I am also required to take into account other matters under our Sentencing Act, matters such as deterrence, general deterrence being of particular importance in cases such as this.
17 Specific deterrence has a much smaller role in this case in my view in light of my finding about your chances of rehabilitation. Denunciation of your conduct however is also a very important sentencing factor in this case. The seriousness of your offending in my view calls for a period of imprisonment and this was not contested by your counsel.
18 The prosecution submitted that the appropriate range for such an offence was a head sentence between two to three years with a minimum term of between one and two years. The prosecution referred to a number of cases which they submitted reflected current sentencing practices in line with the range they had submitted to the court. See the cases of R v. Ralphs 2004 VSCA 33, R v. Rollo 2006 VSCA 154, R v. Galetta 2007 VSCA 177 and R v. Grossi 2008 VSCA 51.
19 Your counsel however submitted that none of these cases were identical to this case or had the combination of features that this case had and consequently those cases are distinguishable. Your counsel also relied upon a decision of this court of Her Honour Judge Cotterell which is R v. Hatzichristos, the sentencing being delivered on 9 February 2012. In that decision Her Honour saw fit to impose a fully suspended sentence.
20 I accept that the cases referred to by the Crown are helpful in trying to ascertain the current sentencing practices. I also accept that none of them are identical to this case. Mr Crisp submitted on your behalf that I should consider wholly suspending any sentence that I impose. The prosecution opposed this submission but agreed that a partially suspended sentence would be within the range of options open to the court.
21 Section 27 of the Sentencing Act provides the discretion to the court to wholly or partially suspend a sentence if it is satisfied that it is desirable to do so in the circumstances. Sub-s.(1A) sets out a number of matters that the court must have regard to. In having regard to those matters I make the following observations relevant to those provisions. Section 27(1A)(b), I note that the prisoner has never been on a suspended sentence before, (c) the offence was not committed whilst on a suspended sentence, (d) the risk of the prisoner re-offending whilst on a suspended sentence in my assessment is very low.
22 Turning to the matters in s.27(1A)(a)(i), (ii) and (iii) I make these observations about the provisions. The nature of this offence is serious, particularly in light of the amount of money and the period of time and the breach of trust. However the impact on the victim has been significantly reduced by the fact that the prisoner has repaid the stolen money and I note that no victim impact statement was sought to be tendered on behalf of the bank.
23 The tension in this case arises particularly when considering the factors of denunciation and general deterrence and the gravity of he offence. Considering the authorities presented it would appear that a theft of this nature would usually entail an immediate period of imprisonment. Although not specifically referred to in the section, in my view mercy is always a component that should be considered with the other sentencing factors in the appropriate case.
24 After considerable and anxious reflection and weighing these factors as I must I have determined that I am satisfied that it is desirable to wholly suspend the sentence I propose to impose. A number of other factors in combination with those above have caused me to arrive at this conclusion. Those factors are one, you are 40 years of age with no prior convictions and no subsequent matters. Two, you served the bank loyally for 20 years before succumbing to family pressures and commencing your dishonest conduct.
25 Three, the reason you stole was not purely greed. You were not living an unusually lavish lifestyle, there was no evidence of betterment, and in fact you are now and will be for some time in significant debt. Four, of your own volition you ceased your dishonest conduct before the matter was detected. Five, you have repaid the money you stole from the bank.
26 Six, in light of your physical and psychological problems and the separation from your young daughters I accept that your incarceration will be more onerous for you than others without such problems. Seven, you are currently employed and together with your husband you are trying to restart your life. Eight, you have sought and are receiving treatment and counselling. Nine, your chances of rehabilitation are excellent.
27 In my view it is in the community's interest in the long term to maximise your chances of rehabilitation. I note that in the decision of DPP v. Tokava 2006 VSCA the President of the Court of Appeal, President Maxwell, stated at paragraph 21 and I quote:
"A sentencing judge should be astute to investigate whether a non-custodial disposition is to be preferred even in a case of a serious offence if in the long term the community's interest will be best served by that course. This court should seek to promote public understanding of the fact that apart from the interests of the individual whom it is sought to rehabilitate, an important interest in itself, there is a vital community interest in maximising the prospects of rehabilitation of an individual who has been convicted of a serious crime."
28 The structure of the indictment in this case divided the offences into five charges. Each charge was a rolled up charge incorporating a number of transactions between dates. Both parties agreed it was an appropriate case to utilise the provisions of the Sentencing Act s.9(4A), which is the aggregate sentence provision and I do propose to adopt that course. The reasons are that each of these transactions is very similar in nature and it involved the one victim.
29 Before making my order I must explain to you the purpose and effect of the proposed order and the consequences that may follow if you commit another offence during the operational period of the sentence. I intend to sentence you to 24 months imprisonment and order that it be wholly suspended for a period of three years. If at any time during that three year period you are found guilty of another offence punishable by imprisonment, whether in or outside Victoria, you will not only be sentenced by the court for that new offence, but you will be brought back before this court to be sentenced for breach of the order imposing the suspended sentence.
30 If that occurs the court may fine you for that breach and must restore the sentence held in suspense and order that you serve it. In other words you would be required to serve the term of 24 months imprisonment imposed today. This must occur unless exceptional circumstances arose after today which would make it unjust for that to happen.
31 The sentence of the court is that you are convicted on each of the five charges of theft and sentenced to an aggregate term of 24 months imprisonment. The sentence is wholly suspended for a period of three years. I state that but for your plea of guilty I would have imposed a sentence of about 30 months with a minimum of 15 months imprisonment.
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