Director of Public Prosecutions v Dipierdomenico
[2025] VCC 39
•30 January 2025
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-23-01179
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DYLAN DIPIERDOMENICO |
---
JUDGE: | HIS HONOUR JUDGE MAIDMENT |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 January 2025 |
DATE OF SENTENCE: | 30 January 2025 |
CASE MAY BE CITED AS: | DPP v Dipierdomenico |
MEDIUM NEUTRAL CITATION: | [2025] VCC 39 |
REASONS FOR SENTENCE
---
Subject:Plea - sentencing
Catchwords: Obtain property by deception
Legislation Cited:
Cases Cited:DPP v Caulfield [2019] VSCA 131
Sentence:9 months' imprisonment plus 2-year CCO
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms F. Holmes | Office of Public Prosecutions |
| For the Accused on For the Accused on | Mr H. Rattray & Mr W. Barker Mr W. Barker | Balmer & Associates |
HIS HONOUR:
1Dylan Dipierdomenico, you have pleaded guilty to one rolled-up charge of obtaining property by deception in a sum totalling $140,716.70 from MGI Golf Pty Ltd. The maximum penalty for that offence is imprisonment for 10 years.
2You have no prior convictions.
3The prosecution tendered and relied a prosecution opening for plea dated 1 August 2024 - Exhibit A at the plea hearing. I do not propose to go through it all again. Suffice to say that between the dates of 17 August 2018 and 21 June 2019, you obtained $140,716.70 by deception by taking advantage of the fact that, in the course of your employment as national sales manager for the companies that were part of that business, you used your position of trust to manipulate the system so as to have moneys due to the company for sales made under your watch to be paid into accounts controlled by you.
4The offending was discovered as a result of an internal review conducted by the managing director of the company. Initially, she found five anomalies that had all been entered by you in the paperwork surrounding certain transactions. On 4 June 2019 she went to your office to discuss the transactions to which the anomalies applied. She noted that you were immediately able to recall all of the information and details about those transactions, which were just a few amongst a very large number of transactions to which she could have been referring.
5She specifically asked you about two transactions where a golf buggy had been put through the system at zero dollars for a particular customer. After she left you, you then went into the system, changed the value of those sales and paid for them on your own credit card, no doubt as an attempt to cover your tracks. She later ran a check on that credit card and discovered that it had been used for multiple customer invoices dating back to January 2019.
6She spent the remainder of that day, 4 June 2019, reviewing all invoices which she considered suspicious and she conducted a random audit of sales stock. She noted further invoices as anomalous, involving failure to follow the company's usual process. At that stage she identified between 20 and 30 suspicious transactions.
7On 5 June 2019, she called you into a meeting with her and the HR manager of the company. She presented you with invoices she had printed during her audit of the sale accounts and asked you if you knew why you had been called in to the meeting. To your credit you immediately admitted to stealing from the company and you indicated to her that you believed the amount that you had received as a result of your admitted theft was $10,000. As we know of course, that was woefully below the true figure.
8You admitted that you had a gambling problem and that you had been fraudulently running transactions and taking payments from the business. You told her that you had been in rehabilitation three years previously for gambling, that you were on your last chance with your wife and that she was going to take your two daughters away from you. You indicated that you wanted to kill yourself, as it would be the only way to get out of the debt and addiction and you said, 'I'm really sorry, you've done so much for me'.
9On 5 June 2019, you sent the managing director a text message apologising and asking if you could catch up for coffee. She replied “no”. She requested the PIN for your work phone. You provided the number and again requested that you would like to catch up with her that week.
10On 6 June 2019, you sent an email to the managing director and two other managers identifying two customers who would be attending MGI office that day to collect purchases and advising that there would be no evidence in the company system of them as customers or of their orders. You admitted in the email that this was because you had sold the items to those customers fraudulently and obtained the money.
11A more detailed examination of the books revealed that during the period of the offending you had paid back to the company on the orders that were the subject of the charges a total of $18,166.50, meaning that the net value outstanding of your fraudulent conduct was $122,550.20, which is the sum referred to in the compensation order that your counsel has indicated that you accept should be made in favour of your employer. You made admissions to police and were charged within days of being dismissed by your employer, in early June 2019.
12The prosecution also relied upon a victim impact statement from the managing director. That is Exhibit B. She pointed out that this was a family company and that your role was one of the few senior roles:
'… that [was] not filled by family members. I think it's important to understand the type of company we are and the culture we have. We operate our company in an open, honest way and we have a saying that we are all "work family". We encourage staff to be involved in our inclusive, positive culture and if you were to ask our staff, I'm sure they would say there isn't much we wouldn't do for them. Our core values are Communication, Honesty, Leadership, Respect, Responsibility, Resilience.
'When Dylan admitted to us that was stealing from MGI, it hurt our family and company. Not only did we lose financially, but the damage he caused could have ruined our business, if not for the support of our staff, customers, friends and family.
‘I personally had to spend the months, following his admission, on reviewing processes, policies, stock and account reconciliation. Instead of growing our business and strategically planning, I was in damage control with our customers and end consumers who had been caught in Dylan's web of lies and deceit. We also had to recruit a replacement National Sales Manager, which was costly and time consuming. It impacted the new recruit as they had to help with the fallout and brand rebuild, and he only lasted a short amount of time. We continued to uncover Dylan's fraudulent transactions for over 6 months after he left.’
13She says later:
'My father started MGI in 1993 whilst being a single father to me and my sister and grew MGI into the global empire it is today. He was hit the hardest. Dylan's deceit and abuse of trust broke something in Dad. He suddenly didn't trust loyal employees, he tried to find someone to blame for Dylan being able to steal from us. He had never had his trust in business abused like Dylan had. Dad stopped coming into the office and, to this day, has taken a step back from the business. He has not fully emotionally recovered from Dylan's actions.
'Dylan took advantage of our good, trusting nature. We gave him a senior job in an industry that he had no experience in. He was on a well-paying salary with attractive, uncapped commission structure. He manipulated invoices on his work computer, he set up new bank accounts and a PayPal account in our company name. He knew what he was doing. This was planned, vindictive, calculated. It wasn't a one-off occurrence, it progressed as he saw that he could get away with it, as we trusted him.’
14She concludes by saying:
'It's almost impossible to properly explain the full impact Dylan's deceitful and fraudulent actions has had on me, my family, our staff, customers, and our business. It is immeasurable. He abused our trust and good nature and used our business as a place for him to profit from, without any consideration for the people he was hurting.
‘The saddest part of all of this is if Dylan had come to us for help, we would have helped him. He didn't need to steal from us.’
15Turning to matters personal to you, your counsel provided me with an outline of plea submissions on your behalf dated 16 January 2025 and spoke to those in the course of the plea hearing. That is Exhibit 1. Exhibit 2 is a table of cases which are designed to show current sentencing practice. Exhibit 3 is a report from Mr Patrick Newton, psychologist, dated 9 January 2025. Exhibit 4 is a self-exclusion notice, that is, you excluding yourself from gambling outlets.
16Exhibit 5 is two medical certificates, dated respectively 13 July 2023 and 2 May 2024, identifying a diagnosis of attention deficit hyperactivity disorder, which was made sometime after March 2021. You are receiving treatment for that. Exhibit 6 is a letter by way of report from Dr Simon Kinsella dated 3 November 2023, along with an updated list of consultation dates, bringing the dates of consultations with him up to date as at least 19 December 2024, showing that you had attended him in respect of your various issues that he sets out in the report for a considerable period of time between 3 June 2019 and 19 December 2024, a total of 33 occasions.
17That is ongoing with two to three-monthly reviews, although I note that the first appointment that you had with him was on 3 June 2019, which was the date upon which you received the last of the payments under your fraudulent transactions and which was the day before you were approached by the managing director bringing to your attention that she was concerned with some of the anomalies in the accounting paperwork.
18Mr Kinsella begins his letter by way of report by saying:
'Mr Dipierdomenico first attended [that is on 3 June 2019] because his wife brought them for assistance with problems dealing with his parents. However, his gambling problems became the primary problem soon after commencing treatment.’
19He indicated that you had been caught, according to his report, misusing money from work for gambling. So you did not go there for gambling addiction, you went there for a different reason, but within a day or two you were dismissed, you had confessed to your employer and that subsequently became the focus for the consultations with Dr Kinsella.
20I note though that it shows a willingness to deal with what was obviously the underlying problem that influenced you in your dishonest activity. It is to your credit that you have made good use of the last five and a half years in pursuing that treatment. You have pursued it diligently and you have made considerable progress as set out in Dr Kinsella's report.
21That is Exhibit 6. Exhibit 7 is a letter dated 31 October 2019 from a counsellor attached to Gambler's Help showing that you attended in July 2019 as a result of a referral by Victoria Police. You continued to do so after that date until at least 31 October 2019.
22Exhibit 8 is a bundle of letters by way of reference, the first one being from Brett Sandler, the second being from Adrian Marafioti, who was the employee through whom you obtained a job as Senior Business Development Management Victoria, initially after you had been dismissed from your victim company. He says that:
'Dylan quickly established himself as a high performer, over delivering on all performance metrics in his first 6 months. This, along with this willingness to help others and his eagerness to support the business in any way, lead me to promote Dylan to National Sales Manager role, where he reported directly to me and was responsible for the largest portion of the Australian business.
‘Throughout his time in this role, Dylan worked tirelessly to support his direct reports … [and so on].’
23He then says:
'Working very closely with Dylan, I got to know him as more than just a leader and strong performer, but as a genuinely caring person, friend, husband and father. …
‘It was during this time that Dylan called me aside one day to tell me about the charges he is facing. Dylan was completely transparent about what he had done and the fact that a gambling addiction had lead him to the point of theft. He was clearly devastated with his actions and knew he'd made a horrific mistake, one that he never tried to shy away from. He took 100% accountability for his actions and I could see immediately that he’d genuinely learned from his mistake. He went on to explain that he had sought professional help and hadn’t gambled since.
‘Such is the character of Dylan, he offered to step down from his role after he told me of his charges as he didn't want his previous actions to impact the business in any way moving forward.’
24That is commendable; however, during the course of evidence that you gave at the plea hearing you will recall that I asked you how long after you had been employed by him that you first raised that with him. You said, I am sure quite frankly, that it was about 12 months into your employment, which is not creditable on any measure of integrity.
25The next letter of support is from your wife. She speaks of the difficulties, but goes on to say towards the end of the letter:
'As a proud, helpful Dad, Dylan continually puts his hand up to support our daughters' primarily school by organising community events and fund raisers. He always attends their sporting events, actively engages in their interests.
‘I can assure you that Dylan is deeply sorry for his actions and not a day goes by without him thinking about the damage he has caused financially and mentally to everyone involved'.
26The next letter is from Murray Silver. He has known you for the past two decades. He speaks highly of you. The next letter is from Ashleigh Hudson, who is the CEO of the company with whom you are presently employed. She says:
'Dylan was very open and upfront about his current situation during the hiring process and has been updating me regularly. …
‘… he has been a decent, calm, hard-working and reliable person.’
It seems that you have performed well in that role.
27During the course of the plea hearing your counsel took me through the various matters relied on in mitigation and drew my attention to the history of your gambling and to parts of that history set out in the report of Mr Newton. I note in Mr Newton's report, after describing your history of gambling and that it had been rather a family thing as you were growing up and that it had become an issue for you as a result of that introduction into the gambling habit, that Mr Newton says at paragraph 31:
'Mr Dipierdomenico told me he had tried to cease gambling “a few times” before 2019. The first formal treatment he received was through the ‘DayHab’ addiction rehabilitation program in 2015. He said that following this participation he had been abstinent from gambling for about a year. Mr Dipierdomenico commenced attending meetings at Gamblers Anonymous in 2015. … While he found it "good to hear the stories of other gamblers" he did not complete the twelve‑step program per se. Mr Dipierdomenico said that he found himself "starting [to gamble] again more secretly and in high[er] volumes than before" from about 2016. He continued to gamble at consistently high levels until his offending was detected.’
28He goes on in the next paragraph to say that:
'During his interview, Mr Dipierdomenico could demonstrate a good level of insight into issues associated with his problem gambling. He was clear about the triggers for his gambling in stress, boredom and loneliness, and could discuss how he had developed strategies in his counselling to allow him to manage these in the future.’
29You relapsed into gambling. You did so secretly and had to sell, amongst other things, shares in order to pay for your gambling losses. As with almost every case of this nature, each gambler thinks that their next big win is going to get them out of gaol effectively and cover the tracks of their dishonest conduct. They feel driven to dishonesty as a result of the hole that they dig for themselves. So your situation is not an unusual one.
30In paragraph 17 of the summary Mr Newton says:
'When I reviewed him, Mr Dipierdomenico's mental status was essentially normal. He was experiencing some feelings of shame as a result of his offending together with a degree of anxiety in regard to the prospect of his forthcoming plea hearing. His symptoms were assessed as being proportionate to his situation and as falling within the normal for a person in his situation. That is, he was not assessed to be suffering from any form of mental disorder.’
31Your counsel stressed that you deserve full credit and a substantial discount in sentence for your plea of guilty. Whilst you made early admissions to your employer and to the police, it is something that the court will give proper weight to and will impact on the sentence that the court imposes. He stressed your remorse and there are many matters that bear upon your remorse.
32You have expressed remorse to a number of different people, including when you gave evidence in this court. I was impressed with you as a witness. You present well and I got the impression that your expressions of remorse were genuine. You get credit for your remorse. However, there is one factor which is troubling, in that you have had five and a half years to repay some of the money that you had obtained dishonestly. I was told that you had not had the opportunity of doing that because of legal fees.
33It is all very well to prioritise yourself ahead of your victim; a more clear link between that and remorse would have been to see you put their priority ahead of your own. I understand how that has arisen. Nevertheless you still owe the outstanding balance of $122,550.20 and the victims have not been reimbursed one dollar since you were dismissed.
34You are employed and clearly your last few employers, including the one to whom you ultimately confessed what you had done, have been very impressed by your work. You are no doubt very capable of working well and being an asset to businesses, particularly in the sales area.
35You have a clear family commitment. I have no doubt there have been some rocky times in your marriage as a result of your gambling in particular and perhaps also your drinking. Your gambling and your present situation will have put enormous strain on your marriage. It is to your credit and to your good wife's credit that you have survived that and that you have got to this point. It seems that you have your wife's support and that you will have her ongoing support.
36Your counsel suggested that your prospects of rehabilitation were demonstrated already by the work that you had done with Dr Kinsella and in other ways. He suggested that you have great prospects for rehabilitation. I think one has to be a little bit more cautious than that, because you sought help back in 2015, abstained to 2016 and then went back to gambling after that. That was during the course of your marriage and you had supports around you. That suggests that some ongoing counselling and assistance and perhaps the fact of resentencing hanging over your head through a community correction order will have some benefit in incentivising you to make good your rehabilitation.
37However, there is no doubt the last five and a half years have been put to good use by you in terms of your treatment and rehabilitation and your efforts at re‑establishing your life and rescuing your marriage and the lives of your children. So I would be inclined to say that your prospects of long-term rehabilitation are between guarded and good and I say that with the cautions that I have already referred to.
38Your prior good character stands you in very good stead. Although the courts have noted that many people charged with offences of this kind, stealing from their employers, only get to do that because they are people of good character. Counsel also invited me to be merciful in sentencing you.
39I was provided with assistance as to current sentencing practice from both counsel. I note that all of the cases to which I was referred were County Court cases except for one, that being a matter that went to the Court of Appeal as an appeal from this court to the Supreme Court by the Director of Public Prosecutions. That matter is DPP v Caulfield [2019] VSCA 131. The principles relevant to sentencing in cases such as this were referred to.
40You were in a senior role in a family company, the only senior employee who was not a family member. You were given a particular position of trust in that regard. You commenced your employment in early 2019 and by 17 August 2019 you were engaging in the offending, which involved a total of 71 dishonest transactions. The offending period was 10 months. So over that 10 months there were 71 separate fraudulent transactions, which gave you an opportunity to consider what you were doing, to reconsider what you were doing and to reconsider again what you were doing, not just in terms of the possible impact on your family and yourself if you were caught but on your employer who had entrusted you with that position.
41There are many cases where the total sum of money involved was greater than $140,716.70, but in all other respects this is a typical case of an employee, particularly one in a senior role, taking advantage of their position and stealing from their employer. I use that word colloquially.
42When questions were raised by the managing director on 4 June 2019, to your credit you admitted what you had done. Having first had your attention drawn to certain anomalies, you sought to cover your tracks in relation to those items that she referred to. That would have been a better time to have made your confession rather than the following day, when further anomalies were drawn to your attention and you realised that the game was up. You have not repaid any more money than the $18,166.50 that was discovered during the audit process of your offending conduct.
43In cases such as this it is important for the courts to give proper value to general deterrence. It is easy enough for a person in your position to steal if they want to do so, or to obtain property by deception if they want to do so. You fell to that temptation. It is therefore important that the courts imposes sentences that pay proper regard to the need for general deterrence. The courts recognise that lack of prior convictions are of much less significance in a case such as this and ordinarily prison sentences are imposed, and quite substantial prison sentences.
44In the case of Caulfield the prison sentence imposed as part of a combination sentence with a community correction order of nine months was increased to more than two years' imprisonment. The money involved there was greater and the length of time involved in the dishonesty was greater, but your role in the company was a more senior role than that particular offender.
45Doing the best I can to take all those matters into account and give proper weight to all of the matters in mitigation to which I was referred, I sentence you as follows.
46For the offence of obtaining property by deception you are convicted and sentenced to a term of imprisonment of nine months.
47I also propose to order a community correction order, subject to your willingness to consent, of two years with a requirement that you undergo 200 hours of unpaid community work during that time, that you be under supervision and subject to judicial monitoring.
48The reason I have added supervision and judicial monitoring, contrary to the recommendations of Corrections, is because of what was said during the course of the plea hearing about your previous attempts at rehabilitation coming unstuck and I think your own continuing need to monitor where you are at in your life and not to allow events around you to overwhelm you. I think that it will be a useful brake upon you during the period when you are endeavouring to re-establish yourself after your term of imprisonment.
49The order that I intend to make has a number of core conditions. The first is that you attend the Ringwood Community Correctional Services at 60-62 Maroondah Highway, Ringwood, Victoria, 3134, within two clear working days after the commencement of the order. The order commences upon completion of your term of imprisonment.
50The other mandatory terms are as follows: you must not commit another offence for which you could be imprisoned during the time that the order is in force; you must comply with any obligation or requirement prescribed by Regulation 15 of the Sentencing Regulations, such as not turning up to supervision appointments drunk; you must report to and receive visits from the Secretary of the Department of Justice or his or her delegate; you must let a community corrections officer know within two clear working days of you changing your address or job; you must not leave Victoria without first getting permission to do so from the Secretary of the Department of Justice or his or her delegate; and you must obey all lawful instructions from and directions of the Secretary of the Department of Justice or his or her delegate.
51The further conditions that apply in addition to the mandatory terms are that you must perform 200 hours of unpaid community work over the period of two years in which the order is in force as directed by the regional manager. If you fail to comply with this order the Secretary to the Department of Justice or his delegate or her delegate may give you a direction to perform additional hours of unpaid community work in accordance with the Sentencing Act.
52You must be under the supervision of a community corrections officer for a period of two years and be subject to judicial monitoring, which will require you to reappear at this court for review of your compliance with the order as directed by the court. And you must attend for your first review on 30 January 2026 at 9.30 am in this court.
53Be aware that, if you breach the order by committing another offence for which you could be punished by imprisonment, you could be up for up to three months' imprisonment just for breaching the order, but you also could be brought back to this court and a more severe sentence could be imposed for the offence to which you have pleaded guilty. Do you understand those terms and conditions?
54OFFENDER: Yes, Your Honour.
55HIS HONOUR: Do you consent to an order in those terms?
56OFFENDER: Yes, Your Honour.
57HIS HONOUR: Thank you. Mr Barker, would you approach, perhaps with my associate, and ensure that your client understands what he's signing.
58MR BARKER: Yes, Your Honour, I will.
59HIS HONOUR: I also make the compensation order in the sum of $122,550.20 in accordance with a draft that I have received.
60I have now signed the community correction order and that is therefore in force.
61But for your plea of guilty I would have sentenced you to imprisonment for two years with a non-parole period of 16 months.
62Are there any other matters, counsel?
63MS HOLMES: As Your Honour pleases, no, Your Honour. Thank you.
64HIS HONOUR: Thank you.
‑ ‑ ‑
0