Director of Public Prosecutions v Dittloff
[2016] VCC 84
•2 March 2016
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT GEELONG
CRIMINAL JURISDICTIONCR 15-01982
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JORDAN LEE DITTLOFF |
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| JUDGE: | HIS HONOUR JUDGE MULLALY |
| WHERE HELD: | Geelong |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 2 March 2016 |
| CASE MAY BE CITED AS: | DPP v Dittloff |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 84 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms R.M. Maxwell | Office of Public Prosecutions |
| For the Offender | Mr I. Pugh | Finn & Pugh |
HIS HONOUR:
1Mr Dittloff, you can remain seated during the reasons for sentence which are necessarily lengthy, and at a particular time I will ask you to stand when I announce the sentence.
2Travel and holidays are always much anticipated. Once the domain of the privileged and wealthy, they now in modern times, are matters that many can experience, that is, experience the exhilaration of foreign places and new experiences.
3Such pleasures are still costly. Most must save in order to have the money to realise the long anticipated holiday, or the long journey; often such trips are much deserved, taken as part of retirement or after years of hard work. And so it was in Colac that 47 ordinary members of the community saved and planned for their holidays in the sun, or travels to Europe or cruises or, in one instance, the young scouts to go to Fiji to help out others less fortunate.
4Many in the Colac community had been doing what happens in local regional communities, they went first to the local business, believing they could trust the local man to help them with their travel plans.
5You, Jordan Dittloff, operated a travel agency in Colac, having taken over what was a successful and well-respected business built up and run by your mother for many years.
6You, Mr Dittloff, did not run the business honestly in the 12 months' up to the beginning of June 2015; rather, you took money given to you by your clients and did not use it as you were required to, by booking flights, accommodation, tours and the like.
7You stole a total of $277,993.58 from 47 customers over a period from 28 July 2014 until you closed the doors of the travel agency, without warning, on 30 May 2015.
8The circumstances of each of your 47 charges of theft were detailed in the prosecution summary tendered on the plea. I will append that summary to these reasons.
9As can be seen in the charges themselves in the schedule and attached to the prosecution summary, some of the amounts were just over a thousand dollars; some over two, or three or five, or eight, though other thefts were, for instance, over 10,000, over 14,000, up to 30,000 and 32,000.
10However, a more detailed examination of the circumstances reveals that many clients paid in instalments as they could afford it.
11One particularly serious theft was of over $30,000 stolen from the Otway Plains Scout Group, who had done the hard work of raising funds from the community and from themselves, to send 30 or so scouts and leaders to Fiji to do community work in that country.
12You stole 31,000 from John and Elizabeth Scarrott and about 32,000 from Heather and Mike Green, who, as a group, were planning a long trip away to Europe. As with many others, Ms Green described her trip as "The dream European holiday on my retirement."
13The impact of your crimes is not only to be measured by the value of your thefts. As already mentioned the trips and holidays were much anticipated. They were the focus of the victims and their families, some planning and saving for years.
14A sense can be obtained from a selection of any of the charges. What I mention here is not to elevate any one instance above others, and not mentioning the circumstances of a particular victim, is not to be seen as overlooking or diminishing the crime and its effect on them.
15As I say, a sense can be gained from some selection. Richard and Geraldine Janssen had never travelled overseas before, and they were keenly looking forward to a trip with others to Thailand. After you stole their money, they could not afford to re-book, and all was lost.
16Ms Penny Norman saved up also for a family trip to Thailand. It was especially anticipated as ill-health in the family had meant it was the first family holiday for many years.
17The Veale family planned and saved for 12 months' for a trip to Bali, with one moving from part-time to full-time work to have the money. The children had, in their excitement, packed their cases well in advance.
18After 50 years' of hard work, Ms Osborne and her husband and her sister and brother had a big trip by train to Perth, planned to surprise another sister on her birthday. To miss this, was devastating.
19As I say, I cannot detail the stories of each of the 47 defrauded customers; indeed, what I have mentioned thus far in respect of those particular cases is, indeed, very much an abridged version of their story. What I need to say is that I have read and re-read every victim impact statement.
20The themes that are evident and repeated as to the effect of what you did are the following:
21The immediate turmoil and ongoing anxiety caused to each of the victims and their broader families from learning piece by piece of your theft and the risk to their travels. What occurred was out of the blue. You put a sign on the door of your business and disappeared. Ten or so days later you turned up going to the police and admitting your crimes.
22Also, for many the devastation of not being able to go on the trip that they had planned for, and looked forward to, and had paid to. For some, they somehow paid again and went away at great extra cost.
23The overwhelming sense in all the victims is of being betrayed by a man they trusted and were entitled to trust. Apart from the victims being entitled to trust a travel agent, that they went to, and who took their money for travel, you were someone well-known in the community and you put yourself out as a community minded man.
24The breach of trust here has greatly affected the victims.
25I add, the impact of this sense of betrayal is broad as the victims speak of finding it much harder, or the likelihood of finding it much harder to trust people in the future. Other honest business people unnecessarily have to face this from the victims, their families, and others who know of your thieving. Business, and all commercial transactions, operate on trust, and thefts like yours, undermine those important aspects of trust in doing business.
26Another theme is that some victims feel guilty, or somehow to blame, in being conned by you. There have been effects on marital relationships and some have lost confidence in making decisions. I hope the victims understand, or come to understand that none of them are in the least to blame. You, and you alone, by your dishonesty and deceit are responsible. You caused their loss. Some victims have lost sleep and their effectiveness at work, and generally they endured unpleasant emotions; the very opposite to what they anticipated in embarking on travel plans.
27On any assessment of the gravity of your offending, your crimes are serious. It was protracted offending, it was brazen, including asking victims if they were looking forward to heading off, shortly before you disappeared.
28Your moral culpability is likewise very high. Stealing the money off the scouts who had managed to raise the large sum of $30,000 from the community themselves, in order to help others, is particularly concerning. It a reveals a galling level of greed and entitlement.
29Another example may also give some sense of the level of your moral culpability. You were, from 2010, in a relationship with a local young woman. You and she were engaged. She was one of four daughters raised by their mother alone following the early death of their father and her husband.
30Their mother, Mrs Campbell, worked tirelessly running a family farm and sewing and knitting for extra money, as well as, of course, the full-time job of raising four children.
31For her 70th birthday she planned a big bus trip. She pooled the money saved from the sewing and knitting and a bit left over from the farm income. Her friends and family all donated money as a birthday gift to help her towards her Swagman bus tour.
32All this occurred a week or so before you disappeared, closing the business. You took charge of all of the money of your future mother-in-law, approximately $6,825, on the premise that you would arrange and use the money to pay for her trip. You stole your future mother-in-law's 70th birthday travel money. It only has to be said for your callous and selfish dishonesty and your high moral culpability, to be obvious. It is hard to see how this theft, and especially when it occurred, how it fits with your explanation that you stole from one client to pay for the travel for another. A robbing Peter to pay Paul explanation, but more will be said of that later.
33Before moving on, I need to be clear that the impact of your offending on the victims is only part of the multi-dimensional matrix that governs my sentencing task. I do not sentence affected by emotion or motivated by retribution which may well be understandable reactions of the victims.
34Rather, as the Sentencing Act requires, I consider a large number of factors and one of those factors being the impact of your crime on the victims. It is taken into account in a balanced way.
35You, yourself, acknowledged the effect of your crimes on the victims in that you said as much to the psychologist retained by your lawyers, and you said so to your family and friends who have written testimonials tendered on your behalf.
36Through your lawyer, you apologised on your arrest. That was re-expressed on your plea, again, by your lawyer. Your full admissions and your early plea of guilty are matters of real weight in mitigation. I accept that these matters evidence remorse. There is other evidence of your remorse as set out in the testimonials, as expressed to the psychologist engaged by your lawyers.
37You will be afforded the significant benefits that come to those who plead guilty and express remorse.
38You have just turned 28. Unfortunately, you have drug and driving convictions that are prior to this offending. Of more concern is your serious drug offending which was dealt with by a magistrate on 4 September 2015, resulting in a six month prison term and a community corrections order of 18 months. You have not been able to do the community corrections order as you have been on remand for these matters since your arrest in June of 2015.
39I note you have no prior convictions for dishonesty.
40You were raised in a solid family in country Victoria. I take it from what was put on your plea that your parents remain supportive, although saddened and bewildered by your criminality. Your father was a police officer and then after retirement a bus driver. Your parents ran a local general store at Rokewood before your mother opened and ran the travel agency that you took over.
41You have two younger brothers who are doing well. Your childhood was uneventful though you had to be self-sufficient as you lived a distance away from friends. You completed VCE in Ballarat, though it seems you were not a good organiser and were distractible. Your success at VCE saw you gain entry to the Australian Defence Academy in Canberra. You remained there for 18 months. You left, it seems, because you became uncertain of the obligation on you to remain in the Army for the length of the Degree, plus a year.
42However, you were comfortable with the highly structured lifestyle of the Army. Indeed, you told the psychologist you were coping with prison because it, like your Army experience, was highly structured.
43Although it was said by the psychologist that you are not good at organising and paying attention to detail, you are attracted to, and do well, in organised structured situations.
44After the Army you enrolled in a law degree at Deakin University, but lasted there for only 12 months. You worked for a while in an Officeworks store. You moved back to Colac in 2009 and began working in the travel agency, ultimately taking over that business from your mother.
45It was said you struggled with the commission system and the holding of clients' money effectively on trust. I note you had been working the travel agency for about five to six years before your offending and many victims had good experiences with you in that their travel that was arranged in the years prior to 2014, went without difficulty.
46As to other problems that you have had, there was binge drinking on the weekends while you were in the Army. However, since a drink driving conviction and a car accident, you have moderated your drinking. To my eyes, of importance in your demise, is that you took up using drugs around the age of 20. That escalated in recent times, including heavy use of ice, cocaine and Ketamine. You were travelling, it seems, and spending time in nightclubs in Melbourne. As I understand it, your subsequent conviction was connected with selling of drugs in nightclub environments.
47A psychologist, Mr Woodward, tested you and wrote this of your use of drugs. "He admitted to using drugs four or more times per week and three or four times per day on days when he uses. He said that he was involved in heavy drug use on at least a weekly basis and said that he was unable to stop using drugs on at least a weekly basis. He felt that his drug use was out of control, although he denied craving for drugs. Said he only failed to meet his responsibility because of his drug use on an infrequent basis. He also acknowledged that he felt he had hurt others mentally because of his drug use."
48Your descent into drug use and, indeed, trafficking is of real concern. If you are to rehabilitate you must diligently avoid drug use.
49As to your rehabilitation, importantly, you have the support of your family. The testimonial of your friend from your Academy days in Canberra, speaks of your strong character. Your friend continues to communicate with you while you are in prison. He senses your contrition.
50Another friend, a Mr Nockles, who has known you for about six years or so was, before your crimes, impressed with your civic engagement and work ethic. Having spoken and corresponded with you while you were in prison, he is firmly of the view that you can, again, in the future, make a positive contribution. Also a café in your parents' township has offered you work on your release.
51You have made it clear to all you want to repay the victims that you stole from. These matters are to your credit and allow me to consider your future prospects as reasonable. But time will tell.
52My residual concerns relate to your drug addiction. You will need to be supervised and assisted to remain drug-free, but, in the end, Mr Dittloff, it is entirely up to you.
53You are doing what you can in prison to improve yourself and keep busy. It was put on your behalf that you were disorganised in the travel business and the thefts were, in effect, robbing one client to pay for the trip of another.
54This assertion is hard to assess; little was said to elaborate or identify particular cases or documents or charts of accounts or bank documents that support or even indicate that this was the unfortunate modus operandi.
55The bank documents handed up show an account in credit. The psychologist's evidence is that you had, or have, some of the symptoms of ADHD in that you pay too little attention to detail, lose concentration and are easily distracted. As I have said, I note that some of the victims say their trust in you was significant because you had organised past trips for them, efficiently, and without the hint of trouble.
56Your trouble seemed to coincide with your increased use of drugs, but drug use may be as a consequence of your business problems. I cannot easily untangle that.
57You told a psychologist and your lawyer that the money was not used to fund your drug addiction. Nothing was said as to how you, in fact, funded your drug addiction. In the end, I am unable to say or make a finding as to why you stole your clients' money. The fact remains is that you did steal your clients' money and for that you must meet your just desserts.
58The most prominent sentencing considerations are denunciation and deterrence. The court's denunciation must be expressed practically as well as in these words of condemnation.
59Likewise, others who are trusted with customer's money, must appreciate that if they breach that trust and act dishonestly and steal the money, then certain punishment usually involving imprisonment awaits.
60Your rehabilitation is not overlooked and with that in mind an assessment was made as to your suitability for a community corrections order. It was conceded that imprisonment had to be imposed. However, recent legislative changes allow for longer gaol terms to be combined with community corrections order which, likewise, can be of greater length than in the past.
61The Court of Appeal of this State in the guideline judgment of Bolton v The Queen emphasised that a community corrections order can punish and facilitate rehabilitation simultaneously.
62Bolton's case also makes clear that the sentencing landscape in this State has altered. With that guideline judgment well in mind, as I say, I had you assessed and, not surprisingly, you are suitable for a community corrections order.
63In my view, given the gravity of your offending, the comprehensive breach of trust, the need for denunciation and deterrence, and at the same time taking into account the matters in your favour and your rehabilitation, a gaol term combined with an onerous community corrections order is the just and appropriate sentence.
64I intend to impose an aggregate sentence. In my view, the just and appropriate sentence of imprisonment would allow for a potential parole period to ensure that there is intense supervision.
65At the end of that period of time if you are granted parole, and that is for others, not me, you will be the subject of a community corrections order involving, again, ongoing supervision, treatment for your drug addiction and unpaid community work in your community.
66Mr Dittloff, can you please stand.
67For committing the crimes of theft set out in charges 1 to 47, amounting to the 277,950-odd dollars, I sentence you to an aggregate term of imprisonment of 30 months' and I fix a minimum term of 20 months' before you are eligible for parole; and, in addition, with conviction, I place you on a community corrections order for two years. There will be supervision as a condition of that community corrections order. There will be a requirement that you undergo treatment and assessment for drug abuse, and you must do 200 hours of unpaid community work.
68Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a penalty of five years' with a minimum term of three.
69There are consequential orders that flow from these sentencing orders and your plea of guilty.
70In respect to the compensation, those orders are considerable in terms of the number of compensation applications, and I must sign each and every one of them. They are, as I understand it, almost complete, but not entirely, we need to check through some matters. I will sign each of those compensation orders when they are complete. Your lawyers will be provided with a copy of them as will the Crown. Those orders will be made.
71Are there any other consequential orders that you see, Ms Maxwell, I cannot remember?
72MS MAXWELL: No, Your Honour.
73HIS HONOUR: How many days has he served in custody? You told me on the last occasion, but I have not calculated it.
74MS MAXWELL: Sorry, 44 days as of the last plea date.
75HIS HONOUR: What is it now? You can be seated, Mr Dittloff.
76MS MAXWELL: Fifty-six days, Your Honour.
77HIS HONOUR: You have already served 56 days of imprisonment. With that being reckoned as pre-sentence detention I will ensure that the declaration that I made that these 56 days be part of the sentence that I have just imposed, ensure that that declaration is entered into the records of the court, so the prison authorities are left in no doubt that you have done 56 days of the sentence of imprisonment that I have just imposed.
78Is anything further required?
79MS MAXWELL: I do not believe so. I am not sure if Your Honour has to record a date for when the community correction order starts ‑ ‑ ‑
80HIS HONOUR: When he is released, I do not have to ‑ ‑ ‑
81MS MAXWELL: ‑ ‑ ‑ and obviously (indistinct) ‑ ‑ ‑
82HIS HONOUR: The community corrections order commences on the day that his ‑ ‑ ‑
83MS MAXWELL: Parole.
84HIS HONOUR: ‑ ‑ ‑ parole is finished or his sentence of imprisonment, if he does every day of it. He might do every day of the 30 months' I do not know. It is a matter for the Parole Board, but as soon as he is released, he is subject to the community corrections order which will last the 18 months' thereafter, and he must engage with the community corrections people immediately and do each and every hour of unpaid community work and each treatment that they set for him, and I will explain to him what the consequences are if he does not.
85In respect to the community corrections order, I think at some stage I mentioned - just bear with me for a moment, just bear with me - Ms Maxwell, Mr Pugh, did you take a record of the length of the community corrections order?
86MS MAXWELL: Two years.
87HIS HONOUR: Thank you. I think I mentioned in passing 18 months, but I meant to say two years'.
88Mr Dittloff, this community corrections order lasts for two years', commences on the completion of your imprisonment term and applies thereafter for two years'.
89The conditions that apply to everyone on a community corrections order apply to you. Most importantly is the first of these. Please understand, you must not commit another offence for which you can be imprisoned during the time the order is enforced. That is almost every offence you can think of, and the way through it is to not commit any further offences at all, but certainly not during the time of this community corrections order.
90If you do, then you will come back before me and the mercy that has been shown here will not be repeated.
91You must comply with any obligation or requirement under the sentencing regulations. An example of that will be they will need to take a photograph of you to be able to identify you, so co-operate with all that.
92You must report to, and receive visits from, the Office of Corrections. You must report to the community corrections centre at Colac, that is the community corrections service at the Colac Magistrates' Court in two clear working days after the order commences. So within two clear working days after your release from prison you have got to get to see the community corrections people.
93You must let the community corrections officer know within two clear working days if you change an address or your job.
94You must not leave Victoria without getting permission to do so from the Office of Corrections. That is any trip across any border. You must obey all lawful instructions from and directions from the Office of Corrections.
95Conditions that apply just to you are that you must do 200 hours of unpaid community work over the two years, as directed by the regional manager. You must be under the supervision of the community corrections officer for two years and you must undergo a treatment and assessment for drug abuse and dependency as directed by them.
96Now, should you fail in respect of the community work; not do each and every hour on time, stay as long as they say that you have to when you are required, then you will breach the order and, in all likelihood, return back to me and I will just re-sentence you for the crimes that you committed in stealing the money. The high likelihood is you will just be returned to gaol. Do you follow that?
97OFFENDER: Yes, Your Honour.
98HIS HONOUR: Do it all. If you sign that, then that is the community corrections order. It starts, so you are clear, after you have completed your parole period, however long that is.
99Mr Pugh, take that down to Mr Dittloff to sign. Thank you. I will attend to those compensation orders through the day, Ms Maxwell, Mr Pugh, so you will get a copy of all that.
100Ms Maxwell, I am grateful, the court is grateful for the significant organisation that has gone into this particular matter and moving it as swiftly, it reveals to me the efforts of Mr Potter yet again, and the Office of Corrections in gathering in so much material for so many people; I am sure they are grateful to you. Thank you.
101Mr Dittloff, you will be returned back to the prison and there is no time for spending any - a moment with anyone who might be here for you. Thank you.
102(Offender removed.)
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