Director of Public Prosecutions v Daws
[2013] VCC 1360
•26 September 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-01012
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAULINE DAWS |
---
JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 September 2013 | |
DATE OF SENTENCE: | 26 September 2013 | |
CASE MAY BE CITED AS: | DPP v Daws | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1360 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords: Sentence – obtaining by deception – defrauding employer – breach of trust – bookkeeper – 43 year old woman – no prior convictions – exceptional circumstances – family hardship – fully suspended sentence
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S. Coombes | Ms R. Marcques Office of Public Prosecutions |
| For the Accused | Mr M. Nicolosi | Ms K. Jones JH Legal |
HER HONOUR:
1 Ms Daws, I am about to deliver my reasons for sentence. You can remain seated whilst I do that. I will ask you to stand at the end when I actually pass sentence on you but I want to tell you that what I am going to do is to impose a fully suspended term of imprisonment on you. I am telling you that now because I want you to listen carefully to what I have to say and I am conscious of the materials I have been provided with about your state. I think if I kept you in suspense that you would not listen to what I have to say and it is important that you do.
2 Pauline Daws, in 2010 you started working for a small family business, Celsius Sheet Metal Pty Ltd. The owners are Maria and Raymond Cook, and they had operated it for a long time. You were solely responsible for payroll and solely responsible for all of the company's finances. As a result, you had control of the banking, access to the online bank account, and had responsibility for not only paying employees but paying all the monthly invoices.
3 You apparently got on well with your employers and the other people in the work place and a relationship of trust, by reason of the personalities as well as by reason of the position that you held, had developed. A friendship, too, I gather, had developed.
4 In February 2013, Maria Cook discovered some anomalies in the banking and financial records that led her to make inquiries with the company's bankers and she discovered that some moneys had been transferred into accounts that were your personal accounts. As a result, as soon as it was discovered that moneys were made into your personal accounts that should not have been, you were immediately dismissed, but you were confronted by your employers and had to acknowledge to them that you had been stealing from them.
5 As a result, you were questioned by the police and on legal advice, elected to exercise your right not to answer any questions. But I accept from the rapid, that is rapid for our court system, pace at which this matter proceeded from a no comment interview through to the laying of charges in the Magistrates' Court, your pleading guilty at committal mention and being committed to this court for plea all happening with the last six months, that you had clearly acknowledged from the start your responsibility, your guilt, your intention to plead guilty and to have the matter dealt with as expeditiously as possible.
6 You face, as a result, and have pleaded guilty to two charges of obtaining property by deception. There are two charges because although the offending covers the same period from early January 2012 to early February 2013, there were two different methods by which you obtained moneys from your employer.
7 The first method, which is reflected in Charge 1, of obtain property by deception, was by making electronic transfers of funds from the business account to personal bank accounts of yours disguising the payments as legitimate payments to suppliers to Celsius. In total you made 87 electronic transfers of funds using the names of those legitimately invoicing Celsius for services provided to them. The total amount that you obtained from those 87 electronic transfers over that period of just over 12 months was $84,304.66.
8 The smallest amount per month that you transferred to yourself by this means was just over $900. The largest amount was $13,500.
9 The second method was by using the business list pay schedule which documents outgoing expenses for the month, typing your own bank account details into the schedule and transferring moneys to one of your accounts but then afterwards altering the list pay schedule after it had been faxed to the bank and putting false business details in place of the details which had directed the payment to your account. You did this on 11 occasions in a slightly lesser period, the last nine months, in effect, of the 12‑month period that this offending occurred and you obtained, as a result of that, a further $16,828.14.
10 As a result, by the two different methods that you used, you obtained a total amount of $101,132.80 by deception from your employers.
11 Offences of theft or obtaining by deception from employers are always properly characterised as breaches of trust and when the employer is a small family business where the defrauder is in regular, maybe daily contact with the individuals that she is actually defrauding, there is an added dimension of a very personal nature to that breach of trust.
12 You have acknowledged that this is a serious breach of trust over a considerable period, just over 12 months, and not by a single act of a transfer of act but by repeated acts. Now, it is clear that once that first step is taken, it is probably a little easier to do it each subsequent time but nonetheless, there were 87 occasions in respect of Charge 1 and 11 occasions in respect of Charge 2 where you had to sit and think about what you were doing and to face yourself the fact that you were acting dishonestly and to face yourself the fact that this was money that you were depriving your employer of.
13 Subterfuge was used in both methods, different forms of subterfuge, clearly designed to conceal from not just a cursory but even a more detailed look that there were moneys going out to you that you were not entitled to, disguised as moneys going to people who were entitled to it. That total, just over $100,000, whilst it is just over the threshold that gets it into this court – just over the amount that otherwise would have meant that it could have been dealt with in the Magistrates' Court, and maybe much less than some of the other defraudings that we have to deal with in this court – is nonetheless a considerable amount of money to milk out of a business over a year and to milk out of a small family business.
14 No victim impact statements have been filed by Mr or Ms Cook but Mr Cook has been present at court today and I accept that he must have felt betrayed by somebody he felt that he could trust, somebody who he could look in the eye every day when he saw them in the work place, somebody who, it would appear, was well treated and well regarded in that work place. So there is a considerable loss to him not only of the money but also of his trust in human nature and his trust in someone he thought he could believe in and somebody whose friendship he had accepted and had given.
15 But he is not vindictive. All he wants is to have returned to him what is rightfully his, that is to the company, to him and his wife, what is rightfully theirs. That he wants to see that injustice repaired but does not see a need to direct or wish that you go to gaol speaks volumes for the decent man he must have been as your employer and the decent man he is.
16 It is clear that considerations of denunciation, just punishment and general deterrence must be reflected in the sentence to be imposed upon you.
17 No matter what personal, financial, or emotional pressures employees are under, they cannot seek to alleviate their own financial problems or try and deal with their own personal difficulties, no matter how substantial they are, by stealing from employers, and the sentence clearly must reflect that.
18 Let me then deal with your personal circumstances.
19 You are 43 and you have never been in trouble before. A large bundle of testimonials have been provided by people including those whose friendship and trust you have kept since you were school girls together, your husband's employer and your parents‑in‑law, amongst others. They are consistent in saying what a good person you are, and how out of character this is for the person they have come to know, love and trust over the years. They also consistently say that you are the person who shoulders everybody else's responsibilities and the person who people turn to when they have needs. That is so not just in respect of the friendships that have lasted over the years but in your acceptance and assumption of your considerable family responsibilities.
20 You left school when you were young, during Year 10, because you fell behind following the onset of what was ultimately diagnosed as epilepsy. Your schooling suffered and you went into what was then relatively unqualified employment. You have clearly been diligent and you are clearly an intelligent person. You have risen, over the years, from unskilled, clerical run around work to being in positions of trust in administration and finance. You understand and work computer systems and can manage the running of small businesses. That speaks well for your application and your dedication and for the strength of somebody who is not put off hope and confidence in themselves when confronted by their own illness.
21 You have had a good employment history. You have worked throughout your life. There was a period when you worked limited hours as a bookkeeper when your first child was very young. He was born very prematurely and with what must have been developmental delays evident from the start. But you have always worked and you have always obviously been a significant contributor to the family income. Although you have changed jobs from time to time, those changes seem to have been more a result of your taking steps to remove yourself from what you found to be stressful situations in the work place rather than putting in unsatisfactory work or not showing commitment, application or dedication.
22 You have been with your partner for many years. You have only recently married but you have been together for 23 years, I think, and you are the mother of two boys who are aged eight and nine. Two boys under ten, so close in age, would be a handful for most parents but both of these boys have significant developmental difficulties as well. Both have been diagnosed with autism spectrum disorder. The older boy is more disabled by his autism than the younger. The younger was initially diagnosed as having what was thought to be better characterised as a pervasive development disorder but testing recently has shown he too falls well within the autism spectrum.
23 This is a considerable burden for parents to carry. The daily physical and emotional toll of caring for even one child with autism spectrum disorder is considerable and a burden that most parents who do not have to carry that burden find difficult to understand.
24 I accept the evidence that you are the primary carer for them. You are the one who is responsible, really, for managing their behaviour on a minute by minute basis throughout the day and the one who is responsible for setting and maintaining the routine which is so important for children suffering from such a disorder.
25 I accept the evidence of the impact on your children if you were to be imprisoned and the considerable hardship that would be caused to them, to your husband, and to you as a result of you being removed from fulfilling that role that you have, it seems, so uncomplainingly filled for the whole of their lives.
26 I have been greatly assisted by the psychological report from Ms Pamela Matthews.
27 Amongst other things, she documents your long history of anxiety, not something that has only been retrospectively diagnosed but something that clearly you have been suffering from and seeking assistance for since your early 20s. You have dealt with it in various ways over the years, ways that show you have tried to understand what it is and how to best deal with it. You have sought assistance from a psychiatrist at times, and you have removed yourself from stressful situations in work places when you could.
28 But of course, once your children came along and they were diagnosed with those disorders, you could not remove yourself in the way you had from a stressful work place. It was a burden you had to assume and something you had to find different ways of coping with. It would appear, from the material before me, you have done that admirably.
29 I accept also the evidence detailed in Ms Matthews' report and confirmed by your husband's evidence and by the testimonials from your parents‑in‑law of the extraordinary added stressors of the last four years. They were brought about by complicated family dynamics and the unexpected and disastrous result of what had been a very well‑intentioned plan to assist your parents‑in‑law, your children and your sister‑in‑law by buying a property large enough for at least two houses to be on it. This was so that you, your husband and your boys could give in one house, and your parents‑in‑law and your sister‑in‑law could live in the other, so that you would be close to each other, able to care for each other and that you would better be able to assume the burdens you were by then assuming, of your husband's increasingly frail parents and their complex needs.
30 Ms Matthews' report sets out what went wrong, the break down of the relationship with your sister‑in‑law, first in personal terms, and then the significant financial impact on you and your husband when she took off and stopped paying her share of the mortgage and of the utilities, and the added pressure that had been on you through some of that time when your parents‑in‑law were living with you instead of in the house with their daughter, as had been the original plan.
31 I accept also the evidence that you and your husband have long accepted that the only way out of this difficulty with the property is to sell it but that work needs to be done in order to get it into a position where the property can be sold. Meanwhile the two of you must continue to shoulder the burden of paying not just your mortgage, but also your sister‑in‑law's share of the mortgage until it can be sold. Then something has got to be retrieved from that to provide accommodation for yourself, your husband and the children. Also, clearly, you and your husband still accept and assume the responsibility for looking after your increasingly frail parents‑in‑law. I accept that the financial bind that you are in is caused not by something of your own making, not by an ambitious overreaching for material wealth. I accept that is why you have not been able to put flesh on to what I accept is a genuine intention and desire to repay Mr Cook the moneys that have been stolen from the company.
32 There are additional hardships, family hardships, over and above those I detailed. You have also had considerable responsibilities for the care of your own mother who suffers a significant psychiatric illness, and for your father. They too suffer poor health and it seems to be again that you are the one who has assumed responsibility for them, who shoulders the main burden of responsibility for them.
33 This is a combination of extraordinary family responsibilities which puts those family responsibilities, in my view, into the exceptional category.
34 You pleaded guilty at the earliest stage and that clearly counts in your favour. I accept the plea of guilty has more than utilitarian value. I accept that it is a genuine acceptance of responsibility and I accept, on all of the material before me, you are remorseful, not just sorry for yourself, deeply ashamed and that you are doing what you can to make good. Therefore your plea of guilty gets the highest discount that it can.
35 I noted your promise, your intention to repay and the fact that there are reasons why you have not been able to do so. I accept that also goes to a characterisation of your remorse. But I also accept Ms Coombes' submission that a promise without the money actually behind it does not carry the same weight as a statement of intention, no matter how genuine I accept it to be.
36 I am satisfied that you are highly unlikely to ever re‑offend and to be before a court again and that by reason of all these matters, particularly the exceptional circumstances of family hardship, predominantly your sons but also your parents‑in‑law and your parents, your anxiety state, your generalised anxiety state and the likely compounding of that were you to be imprisoned, a fully suspended sentence is justified.
37 The seriousness means that it must marked by a term of imprisonment but I do not consider that any of it needs to be immediately served.
38 Could you now please stand.
39 Pauline Daws, on the two charges to which you have pleaded guilty, you are convicted. On Charge 1 you are sentenced to be imprisoned for a period of 15 months. On Charge 2 you are sentenced to be imprisoned for a period of six months and I direct three months of that sentence be served cumulatively upon the sentence in Charge 1. That makes a total effective sentence of 18 months and I direct that that be suspended for period of 18 months.
40 I declare, pursuant to s.6AAA of the Sentencing Act, that but for your pleas of guilty, I would have sentenced you to a total effective sentence of three years and I would have suspended two years of that, thereby directing that you serve 12 months and that the balance of it being suspended for a period of two years.
41 I must warn you that if you commit any offence punishable by imprisonment during the term of the suspension of this sentence, that you will be returned to this court, and probably before me, and the Parliament directs that unless you can establish exceptional circumstances arising since today, that that sentence must be restored and served. Do you understand that?
42 PRISONER: I do.
43 HER HONOUR: Mr Nicolosi will no doubt explain that to you. I have been asked to make an order for restitution and I propose to make that order in the amount of $101,132.80 in favour of Celsius Sheet Metal Pty Ltd.
0
0
0