Director of Public Prosecutions v Davey

[2024] VCC 1509

IN THE COUNTY COURT OF VICTORIA

AT BENDIGO

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-24-00013

DIRECTOR OF PUBLIC PROSECUTIONS

v

TIMOTHY DAVEY

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JUDGE:	BLAIR
WHERE HELD:	Bendigo
DATE OF HEARING:	8 May 2024
DATE OF SENTENCE:	27 Mat 2024
CASE MAY BE CITED AS:	DPP v Davey
MEDIUM NEUTRAL CITATION:	[2024] VCC 1509

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentence

Catchwords:              Obtain financial advantage by deception – theft – Verdins – plea of guilty – remorse

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:R v Verdins (2007) 16 VR 269; Boulton v The Queen [2014] VSCA 342

Sentence:                  Community Correction Order for a period of 2 years

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D. Cordy	Office of Public Prosecutions
For you	Mr N. Rolfe	Rolfe Criminal Law

HER HONOUR:

1Timothy Davey on 9 May 2024 you pleaded guilty on indictment P11444950 to two charges of obtain financial advantage by deception and one charge of theft.

2You have no prior history.

3Your counsel, Mr Rolfe submitted the court should impose a Community Correction Order by way of penalty. The prosecution conceded that a combination sentence involving imprisonment and a CCO was within range. I therefore, requested a report from Corrections as to your suitability for a Community Correction Order. You have been assessed as suitable for such an order.

Circumstances of offending

4The prosecution opening was tendered during your plea hearing. A summary of your offending is as follows. In February 2014 you commenced employment at “Switched on Electronics”, located in Hare Street, Echuca. “Switched on Electronics” is a Telstra Partner Store, and as such are licensed to sell Telstra products and services.

5Upon commencement of employment, you were provided with a user identification number that was required to be entered into the computer system when you conducted any transactions related to Telstra products and services. This identification number was password protected and individual to you. All employees were provided with a Telstra identification number.

6On 24 January 2022, Michael Deola, the owner of “Switched on Electronics”, spoke to another employee who told him that you had applied credit to his personal Telstra account without his knowledge or permission. On 26 January 2022 Mr Deola contacted Telstra and advised them that you had created a series of false accounts and added credits to other customer accounts without the knowledge of that account holder.

7Peter Maher, a senior investigator with Telstra, commenced an investigation into your activities. As a result of that review Mr Maher identified 3 types of fraudulent activity that you had undertaken.

8You utilised twenty-nine different service numbers to make “Google In App purchases”. The exact nature of those purchases is unknown. You used the Telstra system to swap the mobile numbers from one billing account to another, thereby prolonging the life of the account and resetting the credit risk concerns of Telstra.

9Telstra identified that on every occasion the suspect mobile phone numbers were used in two mobile devices. The first of those was a Samsung Galaxy Note previously contracted by you to a mobile number ending 851 in your mother’s name. The second was a Samsung Galaxy Note20 Ultra 5G originally contracted by you to mobile number 0427457553 in your wife’s name.

10The total value of the financial advantage avoided by you and loss incurred by Telstra in relation to the “Google In App” purchases was $132,510. (Charge 1 – Obtain Financial Advantage by Deception)

11You became aware that your “Telstra” system access allowed you to create “Device Trade-In” credits. A “Device Trade-In” credit allows customers to trade in an eligible mobile or tablet by returning it to “Telstra” and receive a credit on their “Telstra” bill. Telstra stores and retail outlets do not take returned devices – they are returned via the “MyTelstra” app and sent to a trade-in partner. A total of twenty-eight device trade in credits to the value of $39,625 were applied to the Telstra system by you without authorisation. You utilised the device trade-in credits in two ways.

12You entered false device trade-in credits into the Telstra system, and then placed the value of the credit onto an account in the name of your wife and your mother. This decreased the amount of money owing on those accounts, and allowed you to obtain a financial advantage by avoiding payment for that amount. $13,225.50 in credit was applied to these accounts.

13You also entered false device trade in credits into the Telstra system onto fictious accounts and took possession of those devices or items of hardware. The value of that device trade in credit covered the value of the product ordered and deceived the Telstra system into believing that payment was being made by the holder of the fictious accounts. At times the product was taken directly from stock at “Switched on Electronics”, and on other occasions you placed orders for those devices and items of hardware and took possession of them when delivered to the store.

14The total value of devices and items of hardware linked to the false accounts was $26,339.50. (Charge 2 – Obtain Financial Advantage by Deception)

15You also used your Telstra system access from your place of employment, “Switched on Electronics”, to create fraudulent customer account profiles, both personal and business. You logged onto the Telstra system using your unique “P” number or the “P” number of co-workers Michael Deola or Nathan Stores. You created a series of fake business accounts with false ABN numbers, contact persons and contact numbers. You then stole mobile devices and items of hardware from “Switched on Electronics” that were products for sale.

16You deceived the Telstra system into believing that those products had been sold, you linked the sale to the fake accounts or customers, you then took the devices for yourself. On each occasion, you took possession of those devices and hardware before you entered the false sale onto the computer system and linked it to a false customer account. You later advertised and sold the devices on social media platforms such as Facebook Marketplace and received money in return.

17You arranged for the sale of the devices and either drove to an agreed location to meet the purchaser where you received cash in return for the device or made arrangements to receive money via PayPal and sent the device via mail. Other mobile devices were kept for yourself or given to other family members.

18A total of thirty devices were identified as having been stolen by you to the value of $43,905. (Charge 3 – Theft)

19In total, the value of your offending amounts to $216,040 and involves 107 instances of deception or theft.

20Your offending was detected by Mr Deola on 24 January 2022 and your employment was immediately terminated. The informant received an investigation file from Telstra on 1 March 2022. It was not until 22 September 2022 that the informant made contact with you and arranged for you to attend the Kyabram police station to participate in a record of interview. You answered approximately 438 questions and made full admissions to your offending.

Nature and gravity of offending

21In formulating an appropriate sentence I must have regard to the gravity of your offending. Each of the three charges to which you have pleaded guilty are punishable by a maximum of 10 years imprisonment. This is the starting point and the yardstick by which the gravity of your offending is to be measured. In your case each of the charges are rolled up charges. When sentencing on a rolled-up charge, the court must consider all the circumstances of the offending, including the time frame over which it was carried out and the totality of the harm occasioned. A rolled up charge is otherwise treated as a single formal charge.

22Mr Cordy on behalf of the prosecution submitted that as rolled up charges, the charges before the court should be considered as serious examples of dishonesty offending. Further, Mr Cordy submitted that the quantum, whether it was retail or wholesale, involved a significant amount of money. Ultimately, Mr Cordy submitted your offending was sustained and systematic, your moral culpability was high and significant punishment was warranted.

23Your counsel Mr Rolfe, appropriately conceded your offending was serious. He submitted that you were a trusted employee, your offending continued for a considerable length of time and involved a degree of sophistication. However, Mr Rolfe also submitted that the use of your own identification number for the majority of your offending meant that it was readily traceable to you and as such you were always going to be caught.

24In terms of quantum, Mr Rolfe submitted that the total amount represents the retail amount and the true loss to Telstra was therefore a lot less than the amount charged. Mr Rolfe also submitted that there was a degree of overlap between charges 2 and 3. Although I accept that there was a degree of overlap between these charges, you explained in your record of interview that this was done to prolong and conceal the discovery of your offending. You applied device trade in credits (charge 2) to satisfy the arrears that had accrued on the fictitious accounts that had ‘purchased’ devices (charge 3).

25By way of explanation Mr Rolfe detailed the background to your offending which started with the death of your father in 2019. This had a significant impact on your life. You and your wife moved in with your mother to help care for her, as she struggled to cope with the loss of her husband. Over time this resulted in severe personal strain and sleep deprivation. Mr Rolfe also submitted that you were considerably overburdened at work and experienced a ‘breakdown’ being unable to deal with these demands. I will return to the issue of your psychological wellbeing, particularly as it relates to your offending, in greater detail when considering your mental health.

26An assessment of the facts relevant to your offending reveal that you perpetrated 107 acts of dishonesty over 26 months from 8 March 2020 to 20 January 2022. This resulted in a total loss of $216,040.00 to Telstra. Further, your offending involved a gross breach of trust as it occurred in the work environment. You had been employed by Mr Deola for around 6 years and in his statement, he described you as a trusted employee. In these circumstances, I assess your offending as serious in that it was calculated, deliberate and somewhat sophisticated.

Background

27You were born and raised in Swan Hill by both your parents, who maintained a strong relationship throughout their marriage, until your father’s passing in 2019.

28You grew up with two older sisters, the eldest now residing in Bendigo and the younger in Melbourne. You maintain a close relationship with both sisters.

29Your eldest sister battled cancer when she was 11, which necessarily required extended hospital stays. This disruption to family life led to you feeling neglected and of secondary importance. Your sister is now in extended remission.

30Around age 15, you were in and out of the family home due to conflicts about your substance abuse and your problematic behaviour. At this age, you were engaging in daily cannabis use. From ages 16 to 19 you also used ecstasy, cocaine, amphetamines, and methamphetamine on occasion, although cannabis remained your drug of choice.

31You initially left school in Year 10, after struggling with attendance and behavioural issues, which included drinking alcohol and frequent suspensions. You later attended TAFE and completed Year 12 VCAL.

32You have been working since age 16 in a number of different jobs, including hospitality, retail and some time as a football umpire. Your longest term of employment was at Switched On Electronics, where the offending occurred. You were dismissed as a result of your offending. Subsequently, you found alternative employment and you remain employed currently.

33You live with your wife and your three-year-old son. Your son suffered severe bronchitis when he was younger and is now susceptible to illness and suffers from severe asthma. You maintain a stable and supportive relationship with your wife, who has been a consistent and significant emotional support throughout your struggles.

Mental health

34On 24 April 2024, you underwent a psychological assessment conducted by Gina Cidoni, who provided a report dated 29 April 2024 that was tendered at your plea.

35In this report, it was outlined that you have self-reported experiencing suicidal ideation, feelings of alienation and depressive symptoms for a very long time. Ms Cidoni diagnosed you with Major Depressive Disorder, as well as symptoms of high anxiety. You were suffering from both of these at the time of your offending.

36Ms Cidoni opined that your cognitive and emotional function was significantly impaired during your offending. As a result, you had an impaired ability to understand the nature and wrongfulness of your actions.

37Your counsel, Mr Rolfe, submitted that the principles in Verdins were enlivened in your case, specifically limbs one, five, and six.[1] Counsel for the prosecution, Mr Cordy, conceded that limbs five and six had limited application but submitted that limb one had no application.

[1] R v Verdins (2007) 16 VR 269.

38I accept the opinion of Ms Cidoni that you have been suffering with mental health difficulties for a long time and were suffering at the time of this offending. Notably, these issues were untreated at the time of your offending.

39On balance, I find that Verdins has some application in your case, however I do not consider that limb one is enlivened. Your offending was sustained and serious. It occurred for over two years and involved numerous deceptive acts on your part. I cannot accept that you would not have known what you were doing was wrong.

40I do however accept that you have been diagnosed with Major Depressive Disorder and in the absence of appropriate management, at the time of your offending you had chronic and persistent symptoms. I accept your offending occurred in such a context. I also accept that you continue to be afflicted by major depression, suicidal ideation and anxiety and that you are in need of treatment. It is my view that limbs two, three and four of Verdins have application in your case. Your current mental state is such that it should have a bearing on the type of sentence imposed by the court. Further, I consider that general deterrence and specific deterrence should be somewhat moderated given the impact of your degraded mental state that exists now, as at the time of sentencing.

41I note the opinion of Ms Cidoni that:

“Imprisonment will severely impact [you], exacerbating [your] depression. The restrictive and stressful environment of prison will intensify [your] feelings of hopelessness and emotional distress, worsening [your] mental health. Additionally, the lack of control and uncertainty in prison could increase [your] anxiety, making it harder for [you] to cope. With limited mental health support available in prison, [you] will struggle significantly, increasing the risk of self-harm.”

42On this basis I find that limbs five and six of Verdins are enlivened in your case.

43Ms Cidoni also opined that you are a low risk of reoffending. Whilst Ms Cidoni found you have some risk factors, such as your involvement in this unprecedented offending and your ongoing mental health struggles, she also noted protective factors, namely the support of your wife and your acknowledgement of the impact of your offending and your genuine remorse.

44Mr Cordy, for the Crown, submitted that you had the supportive and stable relationship with your wife during your offending. In my view, the most important protective factor will be your engagement in ongoing psychotherapy and psychological interventions. As such the sentence I intend to impose will mandate this to ensure your rehabilitation.

45My view is fortified by the fact that Corrections also assessed you as a low risk of reoffending.

Plea of guilty

46Your plea of guilty was entered at committal mention which was in effect at the earliest opportunity. I consider this to be a very early plea. Further, no witnesses were required to give evidence and the court system was spared the substantial expense and resources of contested proceedings. In these circumstances, your plea has significant utilitarian value and I find you have facilitated the course of justice. I intend to allow a significant discount for your plea of guilty.

47Further, your plea of guilty together with the extensive admissions in your record of interview are demonstrative of your remorse and acceptance of responsibility for your offending. You were forthright, honest and open in your record of interview and made no attempts to hide your offending.

48Ms Cidoni also found that you expressed sincere remorse for your actions and felt deeply ashamed and in disbelief that you committed the offences before the court. Mr Coleman, the author of the pre-sentence report from corrections, also noted that you were embarrassed and ashamed of your actions and took full responsibility for your offending.

49I accept that your remorse is genuine.

Sentencing principles

50The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.

51Mr Davey your offending is serious and I denounce your conduct.

52General and specific deterrence loom large as sentencing considerations, however, in your case as a result of my findings in relation to Verdins the application of both general and specific deterrence will be somewhat moderated.

53Given the findings of both Ms Cidoni and Mr Coleman from Corrections that you are a low risk of reoffending I do not regard protection of the community as an important sentencing consideration. Any such community protection that is required is best achieved by ensuring that you are mandated to the treatment that you require to overcome the mental health issues that have plagued you for many years.

54I take into account the sentencing guidelines referred to in s5 of the Sentencing Act, where relevant in your case.[2] In particular, I have had regard to the sentencing landscape for deception and dishonesty offending. Ultimately the sentencing exercise requires that I balance all relevant factors and make a judgment as to the appropriate sentence in the circumstances of your particular case.

[2] Sentencing Act 1991 (Vic) s 5.

55The principles of proportionality and parsimony are also important considerations here. They require me to make sure the punishment imposed fits the crime committed and that I do no more than is necessary to punish you for your offending. I have taken these principles into account in fixing the sentence I will now impose.

56I consider you have significant factors in your favour including that you have no prior criminal history, that you a solid work history, you have a supportive home environment and you have been assessed as a low risk of reoffending.

57In my view the appropriate sentence in your case is the imposition of a Community Correction Order. In coming to this conclusion, I am mindful of the guidance given by the Court of Appeal in Boulton v The Queen.[3] I consider that an appropriately fashioned order will meet the relevant sentencing considerations that arise in your case. That is such an order will meet the requirements of general and specific deterrence, whilst providing for your punishment and rehabilitation in the community.

[3] Boulton v The Queen [2014] VSCA 342.

58Mr Davey, in relation to each of the charges, being charge 1 of obtain financial advantage by deception, charge 2 of obtain financial advantage by deception and charge 3 of theft, you are convicted and I order that you perform a Community Correction Order for a period of 24 months.

59The conditions of this Community Correction Order include that you must;

(a)   Perform 300 hours of unpaid community work

(b)   Submit for assessment and treatment for mental health issues;

(c)   You must participate in programs to reduce reoffending.

60Pursuant to s. 48CA of the Sentencing Act I intend to offset 100 hours of treatment against the unpaid community work.[4]

[4] Sentencing Act 1991 (Vic) s 48CA.

61In addition to the conditions that I have imposed, there are standard conditions you must comply with. First and foremost, you must not commit an offence punishable by imprisonment over the next 24 months. If you do, you will breach the order. You must comply with the conditions I have imposed and the standard conditions of a CCO. If you do not comply you will breach the order. If you breach the order, you will be brought back before me, and I will likely have to resentence you. That could involve sending you to gaol. In that way this order hangs over your head for the next two years.

62You need to report within two working days to your nearest Corrections office and that will be Echuca Community Correctional Services and you must report there by 4pm on Wednesday 29 May 2024.

63You are required to advise your supervising Corrections Office of any change of address where you are living or working within two clear working days. And it is a term of all Community Correction Orders that you must submit to visits as directed and obey the instructions and directions of the Community Corrections and you cannot leave the State of Victoria without prior permission.

64I can only place you on a Community Correction Order if you agree – so firstly, do you understand what is involved?

65OFFENDER: Yes.

66HER HONOUR: Yes, all right and do you agree to doing the order?

67OFFENDER: Yes,

68Pursuant to s. 6AAA of the Sentencing Act if you had pleaded not guilty and been found guilty the sentence I would have imposed is a term of 9 months imprisonment and a Community Corrections Order in similar terms to that I have imposed today.[5]

[5] Ibid s 6AAA.