Director of Public Prosecutions v Douglas

[2017] VCC 622

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01608

DIRECTOR OF PUBLIC PROSECUTIONS

v

KAREN DOUGLAS

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	12 May 2017
CASE MAY BE CITED AS:	DPP v Douglas
MEDIUM NEUTRAL CITATION:	[2017] VCC 622

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Y. Hardjadibrata
For the Offender	Ms M. Tittensor

1HIS HONOUR:  Karen Shelley Douglas, you have pleaded guilty to seven charges of theft and one charge of attempted theft.

2The facts of the matter are set out in the summary of prosecution opening which is Exhibit 1 on the plea.  Your counsel does not dispute the facts set out in that summary.  I will not recount the facts in any great detail.  Any reader of these reasons can refer to that exhibit to place the sentence in its factual context.

3Briefly stated, on 5 July 2004 you obtained work with a company called Fixwell which was a panel repair business opened by Victor Merceica.

4Your employment was initially as a receptionist and then as a payroll clerk.  In this role you had access to the banking facilities of the business.  You were given a position of trust and responsibility.

5An audit was undertaken of all the Fixwell bank accounts and account recording software which revealed significant thefts of funds from the Fixwell companies.  Victorian police forensic accounting were asked to analyse the financial records.  It was established that a course of conduct consisting of the transfer of funds from Fixwell accounts to accounts in your name, including joint accounts and an account in your partner's name that you were able to access, you entered false details into the Fixwell "Plus" software to carry out numerous fraudulent transactions between 8 February 2006 and 28 February 2012, approximately a six year period.

6The total loss to Fixwell and the owner is $237,829.79.  In addition, there was an attempted theft of $9,000.

7You have admitted your criminal history which is an unimpressive document.  In 2011 on numerous Commonwealth fraud offences you were released on a good behaviour bond.  Prior to then, on 22/5/2001 on charges of obtaining property by deception, use a false document to prejudice another, attempt to obtain property by deception, you why placed without conviction on a bond.  That is at Melbourne Magistrates' Court.  At Sunshine Magistrates' Court, 12/10/2000, obtain property by deception without condition, that was also an adjourned undertaking with conditions that you undertake counselling with respect to gambling.  21/6/2000, three thefts, one obtain financial advantage by deception.  And at Williamstown, 11/12/1995, theft, obtain property by deception, make false documents, prejudice of others, use a false copy, false document and theft.  I am just confused, 2000 Williamstown matter, that's not the one that she hasn't served, is it, it is the Williamstown matter in 1995 of seven months.

8MR HARDJADIBRATA:  That's correct, Your Honour. 

9HIS HONOUR:  So on the Werribee one in 2000 you got a bond.  On the Williamstown matters you got a total of seven months.  You only started serving that on 9 May this year, incredibly, because of oversights.  Before then you had a conviction of theft of a shop in May of 1994.  April of 1994, theft, suspended sentence, and 1989, community‑based order.

10A victim impact statement was read and tendered by Mr Merceica.  It set out in detail the disastrous effects your actions have had upon him, his business, and his family.  I have taken those factors into account.

11You were interviewed by police on 18 December 2012, you made admissions to the allegations, explained you had a gambling problem and used the money for poker machine gambling in addition to personal expenditure.  Again somewhat incredibly, you are not charged until four years later in 2016.  The matter resolved on 13 September 2016.  There was a committal mention on 16 September at which you entered pleas of guilty.  The matter thereafter came to this court.

12I find that the pleas of guilty were entered at the earliest opportunity.  The delay of four years was explained by the prosecutor as occurring because of a lack of resources and the time needed to investigate such matters.  The prosecutor submitted that a combined sentence of 12 months and a community corrections order was not in range.

13This matter was listed for hearing in front of me on 30 November 2016.  It was adjourned at the request of the Commonwealth Office of Public Prosecutions who were concerned about the legality of the Commonwealth convictions in 2011 because of a recent court ruling.  At that time the sentencing option of a sentence of less than three years and a community corrections order was available to me, if I exercised it.  When I finally heard the beginning of the plea on 6 April this option was not available.  The period of less than three years had been reduced to 12 months.

14I find that an unfairness has been created to you because of this, as it was through no fault of your own that the sentencing option available at the first date of hearing was available to me if I chose to exercise it.

15Your counsel filed written submissions and made oral submissions in mitigation.  She set out in mitigation: 

16(1) Plea of guilty and remorse

17(2) The background content of your gambling problems. 

18(3) Your prospects of rehabilitation. 

19(4) The delay in the matter. 

20(5) I must consider the issue of totality, bearing in mind that you have just begun the seven months sentence from 1995. 

21(6) The unfairness caused by the adjourned hearing dates that I have just mentioned.

22In her written submissions and the two psychological reports that were tendered, your background is set out in some detail.  You are now aged 52.  During the offending you were aged between 41 and 48.  You have had a relatively normal family and school background until you entered secondary school when you became disaffected and disrupted.  You left school approximately at the age of 14 and a half and obtained a job.

23In the report of Patrick Newton dated 25 November 2016, your background is set out in much more detail.  You are the youngest of five children.  Your parents' relationship was loving and you denied to him any significant family conflict.  You attended Footscray West primary school.  It was not until you entered Braybrook high school that you had problems.  You said to him, "Puberty hit when I went to high school and I became very disruptive". 

24You set out the circumstances of the sexual assault of which you were a victim when you were aged 16.  Rape charges were prosecuted against the assailant, unsuccessfully, who was convicted of assault and acquitted of rape.  You left home again when you were aged 15 and couch surfed until you were aged 17 when some reconciliation occurred with your parents.  You have had a sporadic work history, as set out in that report.

25You said that you had typically occupied positions for only a matter of months and that you had repeatedly stolen from employers.

26Your background of relationships with men is set out again in some detail.  It has been an unhappy background until your current relationship with Mr Bryant who supports you and has been present in court.

27You were diagnosed as having a conduct disorder and after a consideration of your gambling problems, a gambling disorder.

28You told Mr Newton that you regularly took money from your family accounts to support your gambling.  You estimated that at its peak, in the year before your arrest, you had been gambling up to $5,000 a week and spending up to five hours a day in the activity.  He said despite being previously mandated to do so by the courts, you have not participated in any gambling counselling and not attended Gamblers Anonymous or other programs, and expressed some scepticism regarding the potential allege benefits such assistance could offer.  You told him that you had now ceased gambling.

29He said you reported typical symptoms of pathological gambling.  He said you had a rudimentary level of insight into your gambling as a key risk factor in respect of any relapse into reoffending.

30He said that your personality is disordered and you suffered clear cluster B features with particularly prominent antisocial and borderline personality features.  You have of average to low average intelligence.  He said your insights in your gambling remains superficial and understanding of relapse prevention is limited.  He said you had a conduct disorder.

31In his concluding comments he said that considerable rehabilitative work remains ahead of you.  He said the severity of the personality problems from which you suffer and your history of repeat offending militate against unguarded optimism in your case.  He said, "Without the provision of intensive assistance, I would consider Ms Douglas' prognosis for recover to be poor". 

32In 2017 you have been seeing Dr Peter Saunders and he provided a report dated 20/3/2016.  Your background was set out.  You expressed to him frustration and anger at your current situation.  You appear to take responsibilities for your crimes but reported that you feel your life is on track and you are making progress but feel that it is unfair as it will all be taken away if you are incarcerated.  My comment to you is that you are only there because of your own actions, no one else's.  He said that you had recently had a short period of remission but you satisfy the criteria of gambling disorder.  He said that you appear to be genuinely motivated to change.

33Similar to what Mr Newton said, he concluded that you are very likely to relapse without ongoing support and intervention.

34Prior to your current incarceration you were working for Lincraft, a job that had no access to funds.  A number of references were provided.  I have read those and taken them into account.  It is clear you have family support.

35Sentencing reasons.  The basic purposes for which a court may impose sentence of punishment, general deterrence, both specific and general, rehabilitation, denunciation and protection of the community.  In sentencing you I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of the victim of the offending.

36I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community, seek to ensure, as far as possible, offenders are rehabilitated into society.  I express my denunciation of your behaviour.

37Insofar as general deterrence is concerned, in my experience, your offending here is not uncommon.  In my seven and a half years as a judge, I would hear one to two cases a year of people similar to yourself, middle aged women in a bookkeeping or accounting position, stealing funds from employers for gambling purposes.  Obviously general deterrence is an important factor, that is, I must impose a sentence that might suggest to others not to indulge in this sort of behaviour.

38I also have to take into account specific deterrence which is an important factor here, that is, I have to try and get across to you that you shouldn't do this again.  Given your criminal convictions, that clearly has failed in the past.

39I read and considered the cases handed up, the summaries of sentencing statistics and the sentencing snapshots.  I have taken them all into account and I have taken into account all of the submissions made.  A review of the sentencing dispositions as reflected by that material shows that there's a wide variety of sentences that have been given by courts to people like yourself.

40Your offending here was a serious breach of trust of your employer with profound consequences for him.  You have relevant prior convictions.  It is clear to me that your prospects of rehabilitation depend upon you dealing with your gambling addiction.  Fortunately in the four year period between being interviewed by the police and charging, you have not reoffended, although it is obvious you have not satisfactorily dealt with your gambling addiction.

41In sentencing you I take into account, in addition to all of those matters:

42(1) Your plea of guilt. You saved the court the time and trial of a long and lengthy process in front of a jury.  It is also an indication by you and an acceptance by you of your responsibility for your actions.  You took ownership of your actions when interviewed by the police in 2012. 

43(2) I accept that you have shown remorse. 

44(3) The issue of delay looms large in my sentencing consideration.  It is important here in respect of two aspects, one, the matter has been hanging over your head for a lengthy period of time and during that time you have not reoffended.  I simply don't accept that a four year delay for the reasons advanced by the prosecution in a case where at interview the client has made substantial admissions, is acceptable.  If the resources aren't available, they should be available.  Speedy justice should be the option of all people involved in the criminal justice system.  Justice delayed is justice denied.

45(4) I am taking into account the unfairness produced by the change in timing of the hearing of this plea, as I have already outlined.

46(5) Totality is always an issue that a judge must take into account, however, here where you have just started to serve a seven month sentence that was imposed in 1995, it is an important consideration.  Again, I find that totally unacceptable, that somehow, despite you being involved with the courts on numerous occasions, no one ever executed a warrant on you to serve that sentence.  Just unfathomable, to me.

47(6) I take into account the circumstances of your offending, that is your gambling, your background and the matters set out in the two psychological reports.

48Your criminal history is troubling and but for the delay, the unfairness of the timing of the plea and the issue of totality I have just referred to, I would not be taking the course that I will shortly announce.

49In my view, in order to rid society of you taking money from employers because of gambling, you need serious professional assistance.  That is, your problems will continue to reoccur unless you get such and that's the conclusion of both of psychologists.

50I have taken all the matters I have mentioned into account and impose a sentence I believe to be appropriate.

51Pursuant to s.9(1) of the Sentencing Act, in my view I am allowed to aggregate the sentence as the offences are founded on the same facts or a part of a series of offences of the same or a similar character. That conclusion is obvious upon reading the prosecution summary. Thus I impose a sentence of 12 months imprisonment, an aggregate sentence. I direct that 11 months of that sentence be served cumulatively with any sentence that you are currently undergoing. Which makes, adding on the sentence that I haven't imposed but you are already serving, a sentence of 18 months effectively.

52Upon release from custody for the sentences that you will be serving, you are to be placed on a community corrections order for a period of four years.  I received a report from Community Corrections that assessed you as being a medium risk of reoffending.  I accept their recommendations as to conditions, that is, that you be placed on a treatment and rehabilitation order and also programs to reduce offending and also that you be supervised.  I impose a special condition that you not gamble.  You are prohibited from gambling.

53I declare the time of 33 days to be part of the sentence that I have just imposed. I declare that pursuant to s.6AAA of the Sentencing Act, I regard this as a speculation on my part but it would be in the order of something like six years with a non‑parole period of four.

54The CCO order will be prepared and if you want to sign it, you can.  But bear in mind that did you don't comply with the conditions, particularly the gambling condition, you will be brought back before the court for a breach.  Depending on when you do it, if you do it, and I hope you don't, I may or may not be here but some judge will be here to hear it, and one of the options would be to give you some more gaol time.

55Can you take that to, Ms Tittensor, to your client please.  Any other orders I need to make or matters to consider? 

56MR HARDJADIBRATA:  No, Your Honour.

57HIS HONOUR:  Ms Tittensor? 

58MS TITTENSOR:  No, Your Honour. 

59HIS HONOUR:  Ms Douglas, you have signed your consent to a community corrections order which will occur upon your release, and it sets out the terms and conditions and you have signed that as understanding the effect and conditions of the order and consent to it being made, is that correct? 

60OFFENDER:  Yes.

61HIS HONOUR:  You may take Ms Douglas out, thank you. 

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