Director of Public Prosecutions v Dike

[2014] VCC 1829

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01051

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHAUN DIKE

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	24 October 2014
DATE OF SENTENCE:	5 November 2014
CASE MAY BE CITED AS:	DPP v Dike
MEDIUM NEUTRAL CITATION:	[2014] VCC 1829

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Obtain property by deception – Plea of guilty – Pathological gambling addition

Sentence:Total Effective Sentence 3 years 5 months’ imprisonment with a non-parole period of 18 months’ imprisonment – Pre-sentence detention 12 days – s.6AAA Sentencing Act 1991 declaration

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Hannan	Solicitor for Public Prosecutions
For the Accused	Mr L. Hartnett (Plea) Mr D. Cole (Sentence)	Dean Cole & Associates

HER HONOUR:

1Shaun Rohan Dike, you have pleaded guilty to two rolled up charges of obtaining property by deception.  The maximum penalty for this offence is 10 years' imprisonment which reflects the seriousness with which the Parliament regards the offence.

2You have just turned 48.  On my calculation, your offending spanned seven and a half years, commencing when you were 38, nearly 39 years old.

3You had been employed by the City of Stonnington, which I will refer to as the Council from time to time.  You had been employed by the Council for 18 years.  In 2004, you were promoted to the position of Venues Coordinator where you were responsible for running functions, taking bookings for Council venues, purchasing and co-ordinating catering for internal Council events.  You managed a team of six people.

4When Council purchases were made, the Council policy required a quote or tender to be obtained and a purchase order to be raised by the staff member concerned.  A direct supervisor would approve this up to but not beyond the amount of $6,000 and the order was then placed.  Once the goods were received, the invoice was matched to the purchase order, approved by a supervisor and then paid by the Council’s finance department.

5You were therefore entitled to authorise purchase orders in your division up to $6,000.  Council purchase orders across a broad range of areas, exemplified in the Crown opening, were required to be allocated to specific, related cost centres, with their varying expense codes.  The only legitimate cost centre for Council alcohol purchases was known as ‘Booking costs’.

6The policy also stipulated that “no officer will authorise or write multiple purchase orders to the one supplier to avoid the quotation/tender processes.”

7In January 2012, the Council’s Executive Manager Sustainable Future noticed discrepancies in the Venues’ budget report where charges were being directed to the incorrect cost centre.  This was in the area managed you.  Your direct supervisor, Jan Jacklin, investigated further.  As she said when later interviewed “I noticed several invoices for liquor that were in weird places, like lighting or maintenance.”  There seemed to be a frequency of orders around Chivas Regal or Johnny Walker Black being ordered not by the bottle but by the carton.  Ms Jacklin printed out a large number of invoices and “the pattern became quite clear, Chivas Regal and Johnny Walker Black came up again and again in large quantities, four cases, five cases, three cases quite frequently”  She said the next month similar quantities were ordered.

8You were asked about this ordering but you did not give a satisfactory explanation.  When viewing the chronology of events, it appears that, notwithstanding being asked about theses irregularities, you continued to offend.

9In August 2012, you told management you had been diagnosed with some tumours on your kidney and you would be undergoing treatment and so questioning of you about the suspect invoices was not pursued at that time.

10In December 2012, you told management you had been given a medical ‘all clear’.  The Council then resumed its inquiries.

11In February 2013, the Council engaged Price Waterhouse Coopers to conduct a forensic investigation into this matter.

12Price Waterhouse Coopers conducted an analysis of all relevant documents and also interviewed staff connected with the Venues section.  This revealed that over a lengthy period, a large quantity of a variety of alcohol products had been paid for by the Council but had not been received.  The alcohol had been ordered and received by you, using false accounting and other deceptive practices. 

13Your employment was terminated on 2 May 2013.

14The matter was referred to police and you were arrested on 4 June 2013.

15The police investigation established that during a seven and a half year period of offending, you had obtained by deception alcohol products to a total value of $624,113.45.  You had discovered you could purchase alcohol products undetected using Council funds.  A large amount of the alcohol obtained by you was for orders placed by three colleagues whom you told you could obtain at cost price as part of your employment.  These colleagues paid you for these orders and were not aware of the true situation.

16You used the money you obtained for your own purposes, often for gambling.  You carried out approximately 400 separate acts of dishonesty- approximately 26 such acts in connection with fraudulent purchases from Customised Catering Events, which is the basis for Charge 1 and 374 where the supplier was Paramount Liquor, which gives rise to Charge 2.

17I now turn to the specific basis for Charge 1.

18Customised Catering Events (CCE) had a business relationship with the Council in supplying catering services at Council venues hired out by private clients.  Through this relationship CCE came into contact with you.  At one time you asked CCE if you could buy alcohol directly from it and, with its agreement, on some 26 occasions between 7 September 2005 and 26 October 2009, you ordered and obtained alcohol products from CCE  using an account in the name of the Council.  You did this up to six or seven times a year, receiving payment in cash from the associates to whom you on-sold.

19In breach of your authority you split the purchase orders so that there were multiple invoices on the same day; you arranged for recording invoices in the accounts system, falsely recording “catering” for the items supplied; and the costs were allocated across cost centres, which were not connected with alcohol purchasing - all of these delayed the ultimate discovery of your fraudulent behaviour.  Through these means and by falsely representing to CCE that these purchase orders were for authorised purchases by the Council, you dishonestly obtained from CCE alcohol products valued at $20,000.

20In relation to Charge 2, the basis for this is that between 3 June 2008 and 26 March 2013, as detailed in Schedule A in the indictment, on 374 separate occasions, (32 in 2008, 81 in 2009, 76 in 2010, 99 in 2011, 78 in 2012 and 8 in 2013) you ordered a total of $604,113.45 in the name of the Council, to be on-sold for your own benefit.  Those concerned at Paramount Liquor believed that you sent the purchase orders as the authorised agent of the Council.  As a result of your deception, it supplied the products to you at the Prahran Town Hall, in accordance with your directions.  You subsequently on-sold the alcohol to associates for cash. 

21In order to avoid suspicion or discovery you split invoices to keep the amounts low, below your $6,000 limit, thus enabling you to “authorise” the orders without notifying your manager; you arranged for these alcohol purchases to be booked to a number of different expense codes within the Council, thereby spreading the costs and avoiding a spike in ‘booking costs’, which was the only legitimate cost centre for alcohol purchases. 

22On 4 June 2013 you took part in a Record of Interview at the Prahran Police Station and made extensive admissions. You said, "The whole thing is fucked up.  I purchased alcohol, council paid for it and I sold it off to three different people.  None were the wiser that the Council was paying for it.  They just thought they were getting cheap alcohol through a supplier".

23You said that if you "got into a bit of strife" with gambling you would ask people if they wanted to order some ‘grog for money’.

24Sometimes you would put orders to the wrong account ‘hoping not to get caught’.

25You knew that you could only approve up to $6,000 in purchases, so if the orders added to more than this, you would split the orders.

26You said that you would request the orders on separate invoices so your manager didn’t have to approve the purchases, and thereby, you avoided detection.

27Sometimes Ricky Rowe, a bona fide purchaser, would buy 50, 60 slabs in an order and you gave no receipt "So there’s no transaction record."

28You said, "The whole thing just started with me, you know, gambling.  The opportunity was there to purchase stuff and sell it.  I got greedy".

29You would gamble four or five times a week.

30By way of salary, you were paid about $110,000 a year.

31You also said to police that you were, "Totally ashamed of what you had done."  You said you were ashamed, "Of what your daughter and your wife and your family were going through, for something that you had done."  You said, "The only way to fix it is to sit down and go through this with you and just cop whatever is given to me."  Nobody else had contributed to the offences.

32When asked to describe your actions you said, "Disgraceful, ashamed, deserve what I get, it was my choice at the time.  No-one forced me into doing it".

33You said that no-one else knew about "your racket" as you put it.

34As a result of these offences, you dishonestly obtained the benefit of $624,113.45.  You have consented to a compensation order for $622,605.45 payable to the City of Stonnington, which is the loss they suffered after allowing for $1,508 worth of alcohol products recovered.

35Mr Dike, your offending is most serious.  You breached the trust that the Council had placed in you, embarking on a rather sophisticated course offending over a period of seven and a half years.  You exploited your position in order to derive a benefit for yourself, much of which was spent on poker machines.  You took money from members of the community which ought to have been used for the benefit of the ratepayers of Stonnington, rather than for you and your wants.  Even when enquiries were made by Ms Jacklin, you continued to offend.  This is borne out by the prosecution opening and the dates of offending.  Your offending appears to have preceded the development of a gambling addiction, although this is something that your offending fed, once the addiction was in full swing.

36Your offending warrants a punishment which is just in all of the circumstances and your conduct must be denounced.  Strong weight must attach to general deterrence and I do not regard your gambling addiction, which developed during the course of the offending, as a basis for reducing this weight.

37The impact of your offending upon those with whom you worked has been significant.  Ms Jacklin was so debilitated by your betrayal of trust that she had to have a break from work for eight months, leading to severe financial stress.  Ultimately, she had to resign her position.  She has suffered sleeplessness, panic attacks, and severe bouts of stress and tearfulness as a result of working alongside someone, whom she had trusted and whom she came to know was dishonest.  She had endured a great deal indeed.  Whilst her fears in some respects proved to be unfounded, it cannot be denied that she has suffered a great deal as a result of the way you conducted yourself.

38Mr Cockram has also suffered a great deal by your offending.  Like many other honest reputable employees of the council, he had to endure the indignity of the investigation, and snide remarks and innuendo for an extensive period.  Even though he has done nothing wrong, he feels that his unblemished reputation has been besmirched by the cloud of dishonesty you brought upon the Council.  It has impacted on his ability to trust others, and your offending continues to affect him.

39Mr Roberts, Chief Executive Officer at the Council made a victim impact statement indicating the effects of your conduct upon the organisation, upon councillors and staff of the City of Stonnington.  The impact included bringing the good name of the City Council into disrepute, causing severe distress to many employees who have endured guilt by association with you.  He spoke of the adverse financial impact caused as well as the distress caused to employees by the discovery of the fraud and the intensive investigations.  Further, he said that the staff had felt severely compromised and betrayed by your actions as a long standing and trusted member of staff.  He said that even now the impact on the organisation and its employees continues and will take time to dissipate.

40These are the very real effects of your offending, and cannot be underestimated.

41In sentencing you I take into account the impact of your offending upon the victims.

42I take into account the report of Mr Joblin dated 21 October 2014.  He found that you have a pathological gambling disorder which developed after you found you could access funds dishonestly at work.  Whilst this addiction explains a good deal of your offending, I am not satisfied that it reduces your moral culpability which I find is fairly high.  However, I factor in that you did not fund a lavish lifestyle which would make your moral culpability even higher.

43I accept that because of your present state of depression and experience of suicidal ideation, your time in gaol will be harsher than for those not so afflicted.  I also factor in that this will be your first time in custody, which will be a more difficult experience than for someone more hardened to incarceration.  Further, your separation from your daughter and your concern for your estranged wife and child will also cause hardship which I have taken into account when sentencing you.

44Although you pleaded guilty after a contested committal hearing, this was in circumstances where the sum in dispute was a greater amount.  The Crown concedes that in the circumstances you ought be given the benefit of a plea of guilty at the earliest opportunity, which entitles you to a significant discount in the sentence you would otherwise receive.  You have saved the witnesses the time and trauma of giving evidence at trial and you have saved the community the time and expense of what may well have been a lengthy trial.  Further, although you were not forthcoming when the internal investigation took place, you were fully co-operative with the police when you gave the record of interview, which I have also taken into account in your favour.

45Whilst your offending endured for seven and a half years, you do not have any prior or subsequent convictions.

46I accept that your pleas of guilty reflect some genuine remorse, although I must say that this seems to have a good deal to do with your own predicament and that of your family’s.

47I take into account your background.  Your father was an alcoholic who became aggressive when drinking, and you were not close to him.  However, when he became terminally ill, you came to something of a reckoning with him, and it was you who had to decide whether to turn off life support.  You have a close relationship with your mother.  You have two brothers, one of whom you have no contact with.  The other brother lives with your mother and suffers from anxiety and depression.  You left school in the middle of year 9, but you are literate.  You have a fairly solid work history, having obtained employment in various fields upon leaving school.  When you commenced with the Council, you were a cleaner and hall keeper but you worked your way up to the position of team leader, which shows that you are capable of hard work and perseverance.  You very much enjoyed working at the Council.  After you were dismissed, you worked at a butcher’s shop but the shop closed, forcing you to take unemployment benefits for this first time in your life.  You then went on to become a chicken boner at a poultry farm which was your occupation at the time when you were remanded in custody following the plea hearing.

48You left home when you were 19 years old and at the age of 23, you commenced a relationship with a woman you had known as a family friend.  You married in 1995.  You have a daughter who is now 16 years old and studying at school with a view to becoming a nurse.  You and your wife built your own house but this was sold in May 2014.  I was told that you and your wife, although still close have separated and that your share of the matrimonial home, being $44,829 is held on trust and to be paid in part satisfaction of the sum owed to the Council.

49You have strong support from your wife, daughter and other family members to look to which are positive matters in respect of your prospects of rehabilitation.  In light of this, your lack of prior convictions, your immense sense of shame, and the fact that you have now ceased gambling, I find that your prospects of rehabilitation are fairly good.  In so finding, I am mindful of the fact that your offending occurred over an extensive period and that in terms of refraining from gambling, it is still early days.  However, as your counsel, Mr Hartnett said at the plea hearing, it is unlikely that you will ever be placed in a position of trust again, which is relevant to the likelihood of reoffending.

50Apart from this lengthy period of offending you are of good character, albeit that the seven and a half years of offending is a fairly significant blot.  In all of the circumstances I place some weight on specific deterrence, commensurate with my finding in respect of your prospects of rehabilitation.

51In determining the weight which I need to place on imposing a just punishment I have factored in that you have had a significant fall from grace, and that you have lost all assets and your marriage has fallen apart.

52You sensibly accept that a term of imprisonment is the only appropriate penalty but I accept that it is in everyone’s interests for the non-parole period to be slightly less than what might ordinarily be the case.

53Please stand up Mr Dike.

54You are convicted of each of the offences.

55I make a compensation order in the terms set out in the document provided by the Crown.

56You are sentenced to the following terms of imprisonment:

57Charge 1, eight months' imprisonment.

58Charge 2, three years, three months' imprisonment which will be the base sentence.

59I direct that two months of the sentence from Charge 1 be served with the base sentence producing a total effective sentence of three years five months' imprisonment and I direct that you serve 18 months’ imprisonment before becoming eligible for parole.

60If not for your pleas of guilty, I would have sentenced you to a total effective sentence of five years' imprisonment with a non-parole period of three years’ imprisonment.

61I declare that you have already served 12 days by way of pre-sentence detention, which will be reckoned as already served under this sentence.

62Is there anything arising out of those remarks?

63MR HANNAN:  No, Your Honour.

64MR COLE:  No, Your Honour.

65HER HONOUR:  Yes, thank you.  You may remove Mr Dike.

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