Director of Public Prosecutions v Deo

[2018] VCC 57

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01138

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAISON DEO

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JUDGE:	HER HONOUR JUDGE DAVIS
WHERE HELD:	Melbourne
DATE OF HEARING:	7 February 2018
DATE OF SENTENCE:	9 February 2018
CASE MAY BE CITED AS:	DPP v Deo
MEDIUM NEUTRAL CITATION:	[2018] VCC 57

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW
Catchwords:  Plea of Guilty - Theft
Legislation Cited:  Sentencing Act 1991 (Vic), Crimes Act 1958 (Vic)
Cases Cited:  R v Verdins (2007) 16 VR 269
Sentence:  Community Corrections Order for a period of 3 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Cavka (for Sentence) Ms J. Fallar (for Plea)	Office of Public Prosecutions
For the Accused	Mr J. Snow	Borchard & Moore

HER HONOUR:

1Jaison Deo, you have pleaded guilty before me to three charges of theft. The maximum penalty for each of those charges is ten years' imprisonment.

2The circumstances of your offending is set out in full in the Prosecution Opening for Plea[1], and I sentence you on the basis of the facts set out in that document.  Those facts may be summarised as follows.

[1] Exhibit 1

3You have had a Diploma in Accounting and Finance since the age of 20.  You were the voluntary treasurer at Clayton Pre-School from 2013.  Between 18 March 2014 and 7 October 2016, you stole from that organisation a total amount of $181,440.81, by way of 134 cheques transferred to your company, Rock Emporium, or under your name.  The three charges of theft are rolled up charges comprising of 134 incidents that have been separated by each calendar year from 2014 to 2016.

4Your fellow committee members were local kindergarten parents from diverse ethnic backgrounds, some of whom had limited English and none of whom had accounting expertise, and most of whom only occupied their positions for one year at a time.  For these reasons, your offending went undetected until mid-July 2016, when the Finance Manager returned from maternity leave and discovered that the kindergarten owed $85,000 to its approved provider and license holder, Bestchance.  The Finance Manager was informed by the accountant who had performed her role while she was on leave, but he had been chasing you since December 2015 for a financial report in relation to this debt. You continued to steal from the organisation between mid-July to early October 2016.

5In late September 2016, the Finance Manager met with you and the 2016 Secretary, and the Secretary began an investigation into the kindergarten's finances.  You were asked by the secretary to provide a financial report in early October 2016, but you stalled and said you were too busy. On 20 October 2016, the Secretary asked you to provide a list of creditors and to pay a Best Chance invoice.  She discovered that you did not present the cheque to pay the relevant invoice.  The Secretary made further enquiries and discovered that the kindergarten no longer had a term deposit.  You lied when asked about it. On 25 October 2015, you failed to bring the documents requested by the Secretary to a committee meeting.  You stalled when the Finance Manager demanded on 27 October that you provide financial documents for the last three years.  The next day, you gave a suitcase of documents to the Bestchance accountant, Brian McPherson, and admitted taking the money.

6On 9 November 2016, you rang the Finance Manager, said you were going to make a statement to police, were embarrassed, would pay back every cent, and did not want your wife and children to be affected.

7You participated in a record of interview on 11 November 2016, admitting the thefts.  You could not give a reason why you stole the money.  You told police that you had started with a few hundred dollars, and kept doing it every week or fortnight, and stealing had been "eating [you] up for ages", and that you wish an audit had been done a year earlier so that you could come clean.  You indicated that you intended to repay all the money stolen and had organised regular repayments.

8Your personal circumstances may be briefly summarised.  You came to Australia with your parents as an infant.  You are 38 years old and were aged 35 to 37 during the period of your offending.  You had a strange relationship with your parents, who did not accept your relationship with your wife because she had a child to another man out of wedlock.  You formed a very close relationship with your parents in law.  You have two children aged eight and six years old and a step-daughter aged fourteen.

9Your mother-in-law died in 2014 and thereafter, your father in law, who had been suffering from dementia, was placed in a nursing home.  You have been meeting his nursing home expenses of around $600 per week while living in his home. At the time of offending, you were working as a sales manager, earning approximately $75,000 per year including allowances and conditions.  Your wife was not working then, but is now working part-time, earning about $400 per week.  You continue to work as a sales manager and now earn about $80,000 per annum, including car allowance and commissions. The funds taken by you were spent on ordinary living expenses.  You have applied to VCAT for orders which will enable you to bring your father in law back home to live with you.  You have no prior convictions.

10Further details concerning your personal circumstances and psychological condition are contained in the report of your treating psychologist,
Ms Penelope Karvelis, dated 23 October 2017, and I summarise these briefly. Your parents are of Fijian descent and you and your two older brothers were treated very strictly by your father, although the eldest brother was favoured.  Your father was detached from you.  You met your wife at work when you were 22 and married her over opposition from your parents.  You formed a strong emotional bond with your parents in-law.

11After completing high school in 1999, you undertook an accounting course at Swinburne University, then worked in accounting until 2001, when you took on a more sales focused role with an import trading company.  This lasted until 2010.  You were then self-employed for a few years before you started working as a sales manager in 2013.  You continued to work with the same company and reported to the psychologist that you have been consistently receiving positive performance management feedback.

12In early 2014, your mother-in-law was diagnosed with an aggressive cancer.  She died within three months.  Your father in law, who was already suffering from dementia, became extremely depressed.  Your wife developed extreme anxiety and was hospitalised a number of times.

13You told the psychologist that you felt depressed and anxious after your mother-in-law's diagnosis, and reported these symptoms to your doctor, but received no treatment.  You told the psychologist that at the time of your offending, you felt surreal, you felt that you had lost three of the most significant people to you and that your life had spiralled out of control.  You told her that you did not know what to do or even what you were doing at times, but felt unable to "fix the situation."

14Ms Karvelis’ opined that during this period, your untreated depression and anxiety led to, "psychological maladjustment" and, "a desperate attempt to gain a sense of control over [your] life by establishing financial stability; the only aspect of [your] life you could control at this time."[2]

[2] Exhibit B

15She opined from your self-reporting that at the time of the offending, you were experiencing dissociative symptoms and, "acting out in a distorted reality."  She noted that you struggle to understand your own actions and have required consistent psychological intervention to gain insights into your behaviour.  You have been engaging in therapy with Ms Karvelis since February 2017, and she recommended that you continue with such therapy.

16Ms Karvelis considers that you are suffering from a major depressive disorder and from generalised anxiety disorder, but that your symptoms abated somewhat between September and October 2017 as a result of intense psychological treatment.  Ms Karvelis stated that you are very cooperative with your psychological treatment, attend sessions punctually and have gained insight into your behaviour.  She stated that your prognosis is positive and that you are unlikely to reoffend.

17Your counsel also tendered a schedule of repayments and a letter of reference from your wife.  That letter indicated that you are a loving husband, father, step-father, son-in-law and devoted member of the social committee of your son's soccer club.  You attended the plea hearing alone with your counsel.

18Your counsel submitted on the basis of Ms Karvelis’ report that all six limbs of Verdins[3] are engaged and that there are a number of mitigating factors, as follows:

·     You cooperated with police and pleaded guilty at the earliest opportunity;

·     You are of good character.;

·     At the time of offending, you were suffering from untreated depression and anxiety;

·     Your offending was not motivated by greed or malice, but was caused by your poor psychological state and your dissociative symptoms; 

·     You are unlikely to reoffend, and for this reason, the need for general deterrence and specific deterrence is significantly moderated;

·     You have been making regular repayments;

·     You have been actively participating in treatment and you continue to receive regular counselling and your mental state and prospects of rehabilitation would be adversely effected by a term of imprisonment.

[3] R v Verdins (2007) 16 VR 269

19In all the circumstances, it was submitted, a Community Corrections Order with an unpaid work condition and requirement to continue psychological treatment would sufficiently address all the relevant sentencing considerations.  Your counsel also indicated that you consent to the making of a compensation order sought by the prosecution, as well as the making of a forensic sample order.

20The prosecution expressed a number of reservations about Ms Karvelis' report, including that it does not state what documents she was supplied with, nor does it address the fact that during the period of offending, you continued to work full time as a sales manager with positive performance assessments.  In addition, the prosecution noted that the character reference provided by your wife did not mention the offending at all, and suggested that she may not even be aware of the current charges.  Nevertheless, in all the circumstances, the prosecution conceded that the imposition of a community corrections order is open.

21Your offending is serious because it constitutes a gross breach of trust committed against your children's kindergarten, in circumstances where other voluntary office holders had no accounting knowledge and some of them had limited English.  You offended over a period of three years, continued offending after mid-July 2016 when initial enquiries into the discrepancies began, and persisted in offending, even after you knew that an investigation had commenced into the organisation's finances, and you had been asked to provide a record of accounts. 

22As has been pointed out by your counsel, there are some mitigating factors.  You turned yourself into police, cooperated with them, and pleaded guilty at the earliest opportunity.  The community has been spared the time and cost of a trial and witnesses have been spared the need to give evidence at your trial.  I accept that your plea of guilty indicates remorse for your behaviour.  I note that you have also expressed remorse for your offending to police, to your treating psychologist, and through your counsel to the court. In addition, you have been repaying moneys to the kindergarten on a regular basis since late October 2016, and to date, I understand that you have repaid $7,505 of the money stolen.

23You have also consented to the making of the order sought by the prosecution in relation to compensation and forensic sample.

24Ms Karvelis' report is one of a treating practitioner rather than of an independent expert.  It does not state what documents, if any, she was provided with.  It does not address the fact that during the period of offending, when you were, in her opinion, suffering from severe depression and anxiety and dissociative symptoms, you were also working full-time as a sales manager, receiving positive performance reviews.  However, the opinion she expresses is unchallenged and I accept it. I accept that during the period of offending, you were suffering from a psychological disorder, which reduces your moral culpability to an extent, and warrants moderation of the sentencing principles of general deterrence and specific deterrence. I also accept that given your current psychological state, a prison sentence will weigh more heavily upon you than it might on a person in normal health. I accept that you are unlikely to reoffend.

25I requested an assessment by Corrections of your suitability to undergo a Community Corrections Order, and by report dated 7 February 2018, you were assessed as suitable to undertake a Community Corrections Order.  The author of the report noted that you engage well and presented as remorseful for your offending, and as willing to undergo mental health treatment and rehabilitation and participate in community work. The conditions recommended were those I proposed to impose, namely unpaid community work and mental health treatment and rehabilitation.

26In all the circumstances, I consider that in the light of the objective gravity of your conduct and your personal circumstances, a lengthy Community Corrections Order with appropriate conditions is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording you the best prospects of rehabilitation. I propose to sentence you to a three year community corrections order, with conditions including supervision, mental health treatment and 300 hours of unpaid community work.

27Would you please stand, Mr Deo? On Charges 1, 2 and 3 of Theft, you are convicted and placed on a Community Corrections Order for a period of three years. 

28In relation to the Community Corrections Order, you will be subject to supervision and are required to complete 300 hours of unpaid community work, as well as mental health assessment and treatment. I direct that up to 50 hours of your participation in counselling may be credited as hours of unpaid community work.  I remind you that you are being given an opportunity by this order to address your mental health problems and other emotional issues which are clearly connected to your offending, and that it is vital that you engage with the treatment options provided to you during the order, so as to minimise any risk of reoffending.

29In addition to the conditions that I have specifically imposed, you must also abide to the terms that apply to all Community Corrections Orders.  These are: that you must not commit any other offences during the period of the order being enforced - that is, three years from today - and any offence for which you could be imprisoned, even if a court would not choose to impose imprisonment. You must report to and receive visits from a Community Corrections officer.  You must report to the Community Corrections Centre at Dandenong within two clear working days today, which will be 13 February 2018. You must not leave Victoria without first getting permission from a Community Corrections officer, and you must inform the Community Corrections Office of any change of address, where you live or work within 48 hours of that occurring. Finally, you must obey all lawful instructions from and directions of Community Corrections officers.  Do you understand all the conditions I have imposed and the general terms that apply?

30OFFENDER:  Yes.

31HER HONOUR:  Before you consent to the making of such an order, you must understand that contravening any condition attached to the Community Corrections Order, except for a contravention of a direction of the Secretary, is itself an offence punishable by three months’ imprisonment.  Contravention of a Community Corrections Order also carries with it the prospect that you will be brought back before me and resentenced for the original offending.

32Do you consent in the circumstances to the imposition of the community corrections order?

33OFFENDER:  Yes.

34HER HONOUR: I indicate pursuant to s.6AAA of the Sentencing Act[4] that but for your plea of guilty, I would have sentenced you to two years' imprisonment.

[4] 1991 (Vic)

35The prosecution has also sought an order pursuant to s.464ZF of the Crimes Act[5] in relation to the taking of a forensic sample, and I note that you have consented to that order being made, and I will make that order because you have consented to it and because having regard to the nature of the offending, I consider that it is in the interests of justice for the order to be made.

[5] 1958 (Vic)

36In making this order, I need to inform you, Mr Deo, that I am signing an order that requires you to undertake a forensic procedure for the taking of a scraping from the mouth and/or a blood sample until a sample of sufficient standard is obtained for the placement on a database. I advise you that if at the time of a request for such sample is made, you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample, and the police may use reasonable force to enable that forensic procedure to be conducted.  Do you understand?

37OFFENDER:  Yes.

38HER HONOUR:  Lastly, I will make the compensation orders sought by the prosecution and agreed to by you requiring you to pay all outstanding moneys to Clayton Pre-School Incorporated and to Victorian Managed Insurance Agency, less any repayments you have already made.  Are there any other matters?

39MS CAVKA:  No, Your Honour.  Thank you.

40HER HONOUR:   Mr Snow?

41MR SNOW:  No, Your Honour.

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