Director of Public Prosecutions v Drozdek
[2022] VCC 1289
•9 August 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00162
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANNA DROZDEK |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 August 2022 | |
DATE OF SENTENCE: | 9 August 2022 | |
CASE MAY BE CITED AS: | DPP v Drozdek | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1289 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty – Theft – Knowingly dealing with the proceeds of crime – Obtaining property by deception – Serious breach of trust - Degree of genuine remorse – Very strong prospects of rehabilitation – COVID-19 pandemic.
Legislation Cited: Crimes Act 1958 ss 74(1), 81(1), 194(2), 465; Sentencing Act 1991 ss 6AAA, 44, 48CA.
Cases Cited:Worboyes v The Queen [2021] VSCA 169.
Sentence: Imprisonment for a period of 6 months and following the period of imprisonment placed on a 2 year community correction order.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms F. Holmes | Office of Public Prosecutions |
| For the Accused | Mr B. Johnston | Dribbin and Brown |
HIS HONOUR:
Introduction
1Anna Drozdek, you have pleaded guilty to:
(a) one charge of theft contrary to s 74(1) of the Crimes Act 1958 (‘Crimes Act’), which carries a maximum penalty of 10 years imprisonment (Charge 1);
(b) one charge of knowingly dealing with the proceeds of crime contrary to s 194(2) of the Crimes Act, which carries a maximum penalty of 15 years imprisonment, which is a rolled up charge (Charge 2); and
(c) three charges of obtaining property by deception contrary to s 81(1) of the Crimes Act, which carries a maximum penalty of 10 years imprisonment (Charges 3, 4 and 5). Charges 4 and 5 are rolled up charges.
2You have no prior criminal history.
Circumstances of the offending
Background
3A prosecution opening was tendered on plea and may be summarised as follows:
4The victim in this matter is a company - Allstates Vehicle Logistics, Trading As Spiral Logistics Pty Ltd (‘Spiral Logistics’). The Managing Director is Peter Jorgensen. You were an employee of Spiral Logistics.
5From 6 October 2017 to 16 August 2019, you were the General Manager for a trucking company based in Dandenong South named Spiral Logistics. Your role as General Manager included the control of the telecommunications services for the business.
6On 17 May 2019, Peter Jorgensen purchased the company from the previous owner and became the Managing Director.
7On 16 August 2019 you were made redundant from the company and received a redundancy package of $52,926.01 in addition to keeping your work laptop and company car.
8When you left the company, Mr Jorgensen took over your role. In doing this, Mr Jorgensen noticed substantially higher than expected phone bills from Optus. The bills consisted of two separate accounts held with Optus. The bills issued by Optus covered the repayment of the mobile phone and the data usage for the plan which had been purchased.
9Mr Jorgensen made contact with Optus who revealed there were multiple mobile phone contracts under the company name of Spiral Logistics. Every contract that was opened comprised of a new mobile phone and was locked into a contract for a period of 24 months. The person who signed for and entered into each of these contracts was you. Every contract that was entered into, was made under the company name of Allstate Vehicles Trading as Spiral Logistics.
10Mr Jorgensen made contact with you post your redundancy and asked where all the mobile phones were. You explained that you thought the mobiles were free and had given the phones to all 90 truck drivers employed by Spiral Logistics. You did this as an incentive to get them to recruit more truck drivers for the business. You also stated that you handed them out to customers of Spiral Logistics as a gift.
11Mr Jorgensen also located 37 Optus Sim cards in a drawer at the Spiral Logistics office where you worked.
12On 2 March 2020, Mr Jorgensen reported the matter to the Dandenong Police Station and an investigation commenced.
13On 10 July 2020, a search warrant was executed at Westpac Banking Corporation. Bank statements for a number of accounts (as detailed in the prosecution opening) were requested for dates between 6 October 2017 and 16 August 2019.
14On 12 August 2020 at 10:45am, a s 465 search warrant was executed at a house in North Road, Newport, an address owned by your mother. You had been residing at this address due to a medical operation. Your usual place of residence was a unit in Chelsea.
15As a result of the search, a black iPhone was seized having been found in the possession of your brother, Vinko Drozdek. The IMEI number was registered to Spiral Logistics. This phone related to 1 of the 43 phone contracts entered into by you under the company name of Spiral Logistics.
16You were present at the search warrant but not arrested on this occasion due to your recent medical issues.
17At 11:31am that same day a s 465 search warrant was executed at another home in North Road, Newport, the address of a Kaya Gonis. You sold multiple mobile phones to Ms Gonis from 2017 to 2020.
18A search was conducted and as a result three mobile phones were seized as detailed in the prosecution opening.
19The IMEI numbers in the three phones were registered to Spiral Logistics and related to three of the 43 phone contracts entered into by you under the company name of Spiral Logistics.
20Ms Gonis was arrested and interviewed. Ms Gonis denied having knowledge that the phones were stolen from Spiral Logistics and stated that she was initially told by your sister, Elza Drozdek, that you had cheap phones for sale. Ms Gonis contacted you to enquire and was told by you that due to your good relationship with Optus for giving them a great deal of business for Spiral Logistics, they were able to provide you with iPhones at a discounted price.
21On 31 August 2020, a search warrant was executed at Westpac Banking Corporation. Bank statements for a number of accounts (as detailed in the prosecution opening) were requested for dates between 16 August 2019 and 19 August 2020.
22The following transactions were observed from your bank accounts:
(a) from 1 December 2017 to 3 January 2019, a total of 24 deposits totalling $46,600.00 were transferred into your bank account from Kaya Gonis. Each deposit was entitled “PHONES”;
(b) from 20 June 2018 to 12 August 2019, a total of 9 deposits totalling $43,242.92 were transferred into your bank account from NTI Limited;
(c) between 16 August 2017 to 19 August 2019, there were in excess of $103,000.00 in cash deposits made into your bank account;
(d) on 28 May 2018, a deposit of $1,658.25 made into your bank account from Rentco Transport; and
(e) between 4 December 2017 and 30 July 2019, a total of 12 deposits totalling $91,000.00 were transferred into your bank account from Waldie Transport.
23On 10 September 2020 at 10:00am, a s 465 search warrant was executed at a unit at Kelvin Grove, Chelsea, your usual place of residence.
24No items were seized and you were not arrested due to your recent medical operation.
25On 7 October 2020, you attended the Chelsea Police Station and were interviewed. You gave a no comment interview.
26As a result of observing multiple cash withdrawals from your bank accounts, checks were conducted with Crown Casino. Crown Casino checks revealed that you had substantial losses in 2017, 2018 and 2019 as follows:
(a) in 2017, a loss of $75,470.00 occurred in the space of 335:35 hours spent in the Casino;
(b) in 2018, a loss of $138,560.00 occurred in the space of 505:59 hours spent in the Casino; and
(c) in 2019, a loss of $161,007.00 occurred in the space of 519:45 hours
spent in the Casino.
Charge 1 - Theft
27Between 9 May 2017 and 6 March 2019, you entered into and signed 43 Optus mobile phone contracts on behalf of Allstates Vehicle Pty Ltd trading as Spiral Logistics, in relation to a total of 264 devices comprising 254 mobile phones and 10 Apple iPads. All contracts entered into were for a period of 24 months.
28Mr Jorgensen cancelled all outstanding contracts and as a result, he was required to pay severance fees. The last contract was cancelled in February 2020.
29The first 15 Optus contracts entered into by you had already been finalised by the time Mr Jorgensen cancelled all outstanding contracts in February 2020. Therefore, the first 15 contracts were paid completely in full throughout their duration.
30The remaining 28 contracts entered into by you revealed service charges ranging from 11 months to 22 months, rather than the full 24 months that was initially entered into.
31A small unknown number of the devices were retained and used by the company.
32The matter has resolved on the basis that you stole 233 of the devices valued at $204,722.35.
Charge 2 – Knowingly dealing with proceeds of crime
33Between the 1 December 2017 to 3 January 2020, 24 deposits totalling $46,600.00 were transferred into your bank account from Kaya Gonis. Each deposit was entitled “IPHONES”.
34On 12 August 2020, Ms Gonis was arrested and interviewed in relation to the whereabouts of the phones. Ms Gonis also provided a signed statement.
35Ms Gonis stated she believes she purchased between 30 - 40 mobile phones from you over the past four years. She advised that you required payment before you would release any phones to her.
36Ms Gonis stated that you told her that because you worked for a large logistics company, you were able to get phones at a discounted rate through some ‘Optus guy’ who supplied the telecommunications for the logistics company. Police identified this person to be Mohammed Zeitouneh. You sent text messages to Mr Zeitouneh to organise the collection of the phones in question.
37Ms Gonis confirmed that she would pay you by either cash in hand, transfer the money via bank transfer or deposit cash into your bank account. There were 10 cash deposits made into your bank account between 12 January 2018 and 6 June 2019 totalling $34,800.00.
Charge 3 – Obtain property by deception
38Spiral Logistics used Rentco Transport to hire trailers for some of their trucks.
39Rentco Transport’s Supplier Ledger for Spiral Logistics indicates an amount of $1,658.25 was refunded to Spiral Logistics on 10 May 2018. The refund was owed to Spiral Logistics because Rentco Transport accidentally took the payment for the invoice via credit card, but as per the invoice it relates to, payment is 30 days, and Spiral Logistics would have paid this automatically at 30 days.
40On 28 May 2018, you received an email from Clint Piper at Rentco attaching a ‘Customer Deposit Refund Form’. Mr Piper requested you to complete the form with bank account details for the Spiral Logistics refund. You completed the form providing your own bank details.
41On 28 May 2018, a deposit of $1,658.25 was made into your bank account from Rentco Transport.
Charge 4 – Obtain property by deception
42Between 20 June 2018 to 12 August 2019, nine deposits totalling $43,242.92 were transferred into your bank account from NTI Limited.
43NTI Limited are the insurance company for the trucks at Spiral Logistics which have incurred damages or are in need of repairs to be completed. Any monies refunded by NTI Limited to Spiral Logistics should be paid directly into Spiral Logistics’ bank account.
44Throughout your employment with Spiral Logistics, you approached Dimali Hettiarachchi, administration officer, and requested Ms Hettiarachchi provide NTI Limited with your bank account details. Ms Hettiarachchi did as you requested.
45Mr Jorgensen obtained a list from NTI Limited which contains all amounts refunded to Spiral Logistics for repairs, total loss settlement or overpayment. The prosecution opening provides details of nine payments made to your bank account totalling $43,242.92 that were not transferred to Spiral Logistics.
Charge 5 – Obtain property by deception
46Spiral Logistics used Waldie Transport to perform repairs and maintenance on their trucks through their workshop.
47Waldie Transport received an invoice dated the 5 June 2019 on Spiral Logistics’ letterhead from Spiral Logistics. The invoice was in relation to the sale of a truck, invoice number 027314. The total of the invoice was $22,000.00. At the bottom of this invoice, the banking details were provided as All States Vehicle Logistics Pty Ltd with your BSB and account number.
48On 7 June 2019, you received a deposit from “MWALDIE” with the reference 027314 for $22,000.00. This money was not received by Spiral Logistics.
49Waldie Transport received an invoice dated 14 June 2019 on Spiral Logistics’ letterhead from Spiral Logistics. The invoice was in relation to the sale of a truck, invoice number 027598. The total of the invoice was $16,500.00. At the bottom of this invoice, the banking details were provided with your BSB and account number.
50On 19 June 2019, you received a deposit from “MWALDIE” with the reference 027598 for $16,500.00. This money was not received by Spiral Logistics.
51Spiral Logistics have no record of the Spiral Logistics invoices held by Waldie Transport dated 5 June 2019 and 14 June 2019.
52You were interviewed in relation to the allegations and made no comment.
Nature and gravity of the offending
53The offending that gives rise to all charges on the indictment, represents serious dishonest offending arising from your position as a general manager working for the victim company. In that role you held a significant position of trust including being in control of the telecommunications services for the business. Further, your dishonest conduct covered by the charges on the indictment covers a significant time period, from May 2017 until January 2020.
54Charges 1 and 2 are in some respects linked in the sense that in relation to Charge 1, representing the theft of 233 devices being phones and iPads, a number of those items were on sold to Ms Gonis, giving rise to Charge 2. That is, of the $204,000 worth of devices stolen by you in relation to Charge 1, you on sold some those items to the value of $81,000 to Ms Gonis, knowing they were the proceeds of crime.
55Charges 3, 4 and 5 in general terms represent you manipulating by deception, aspects of the business in relation to suppliers and repairers to your own advantage.
56Mr Johnston who appeared on your behalf, sensibly conceded that as your offending occurred over a significant period of time involving substantial amounts of money, it represents a serious breach of trust of your employer, which is undoubtedly correct. In the circumstances, Mr Johnston submitted that your offending falls at the mid-range of seriousness of this type of offending. While terms such as ‘midrange’ can be often problematic, in this instance the prosecution do not take issue with that characterisation.
57In my view in all the circumstances your offending represent a relatively serious example of offending of this nature from an employer and I accept the position of the parties that your offending does fall within the mid-range of seriousness.
Victim impact
58A victim impact statement prepared by Peter Jorgensen, managing director of the victim company was tendered on the plea.
59While the true victim is indeed a company, Mr Jorgensen articulates the considerable impact your offending has had on the company and on him personally. He notes that the financial impact on the company as result of your offending created a heavy and stressful burden on himself and his family. Mr Jorgensen notes that rebuilding the company and the relationships with suppliers, has taken a considerable amount of his time and has been a significant distraction on the business and his relationship with his family.
60Mr Jorgenson’s victim impact statement provides a clear example of the significant impact offending this nature has on a small company and the ongoing effect on the individuals who operate such businesses.
Personal circumstances
61You are 51 years of age, you are single and you have no children.
62You are the youngest in the sibship of five. One of your brothers was killed in a car accident in 2004. The remainder of your siblings remain very supportive of you, a number of whom were in court for the plea hearing. You also have a nieces and nephews who you are also close with. Your father passed away in 2019. You currently reside with your elderly mother and you have done so since your father passed away. While your mother is independent you assist her with the running of the home including shopping and cleaning.
63You grew up in and around the Newport area attending local schools. You left school prior to the completion of year 12.
64You have an excellent work history. Following school you worked for 15 years at Westgate Transport in Altona, ultimately as a contract manager. You then gained a position with Spiral Logistics and were made the general manager within a year. In 2010 the business was struggling and you lent the company $200,000. Some documentation was tendered on the plea to confirm that transaction. As noted in the prosecution summary, Peter Jorgensen purchased Spiral Logistics in May 2019 and you left the company in August 2019.
65You have only been in one long-term relationship that began in your 20s and ended in your mid-30s.
66You have suffered some physical difficulties in recent times undergoing a hip replacement in July 2020 and in November 2020 you fell breaking your wrist, requiring surgery. You do not suffer from any mental health concerns such as depression or anxiety and you do not have any issues in relation to drugs or alcohol, drinking only occasionally.
67As is evident in the prosecution summary, during the offending period you attended at the Crown Casino on a regular basis. Averaging out the recorded gambling hours, you were gambling for approximately an hour every day. It was submitted that as result of your regular gambling at Crown Casino you were offered inducements such as tickets to sports events and concerts, free drinks, valet parking and access to exclusive rooms within the casino. You would gamble alone and it appears that you had little other social connection.
68Four references were tendered; three from colleagues and one from your sister. It is a common theme in the references that this offending is out of character and that you are an otherwise loyal friend and colleague. One reference refers to the time when you lent money to the victim company in 2013, as noted above, when it was going through a difficult financial period.
69You wrote a letter to the court expressing your regret and remorse. You refer in the letter to the impact your offending has had on the company and the stress that has caused. While letters of this nature are often viewed with caution by the courts, in my view your letter demonstrates insight in relation to your conduct an the impact of it on others, including the victim company, Mr Jorgensen and your own family.
Sentencing considerations
70A number matters were raised on your behalf in mitigation. First and foremost is your plea of guilty. Your plea was entered at the committal mention stage in the Magistrates’ Court and as such no witnesses have been cross-examined. I accept that your plea was entered at the earliest reasonable opportunity. Your plea has saved significant court time and expense and is a further demonstration of your willingness to facilitate the course of justice.
71The plea carries additional weight which must be reflected in a further amelioration in sentence, as the plea was entered in circumstances where the pandemic has caused a substantial backlog of cases in the criminal justice system.[1]
[1]Worboyes v The Queen [2021] VSCA 169 at [39].
72Over and above your plea of guilty it was submitted that you have demonstrated genuine remorse. In the circumstances, having read the references and your own letter to the court, I am satisfied that you have an appreciation of the impact that your conduct has had on the victim company and other individuals. I therefore accept that you have demonstrated a degree of genuine remorse.
73As to your prospects of rehabilitation, you come before the court with no prior criminal history and as noted, you have demonstrated insight since the offending. You have stable housing and a supportive family and you have a desire to re-enter the workforce as soon as you are able to. Further, you have no issues to grapple with such as drugs or alcohol. However in my view it is clear on the evidence that gambling was intimately connected to your offending. It would appear that all of the money that you did receive as part of this offending was lost. While there was no evidence before me as to how you have dealt with your gambling, what was submitted, is that at the time when you were gambling heavily, you were living alone and had little social connection. That circumstance has changed since you have moved in with your mother and have a significant role to play in her care. As such in my view while you would benefit from some assistance in relation to gambling, I am satisfied that in all the circumstances your prospects of rehabilitation remain very strong.
74General deterrence is a paramount sentencing consideration in cases such as this. A message must be conveyed that persons in considerable positions of trust as part of their employment, must be made aware that when they breach that trust in the way that you have, they will face significant consequences.
75As to specific deterrence for similar reasons outlined in relation to your prospects of rehabilitation, in my view specific deterrence need only carry little weight in the sentencing equation.
76Finally, as I have formed the view that there must be a period of custody as part of any sentence I impose, I take into account that any period of imprisonment will be served in circumstances where conditions are still very difficult as result of the COVID-19 pandemic. You will be required to go through a period of quarantine in isolation and while some services and visiting conditions have improved, the conditions in prison continue to be difficult and restrictions remain in place.
77I had you assessed for a community correction order and you have been found to be suitable. You have also been assessed as a low risk of reoffending. As such in the circumstances, in my view a combination sentence pursuant to s 44 of the Sentencing Act 1991 (the Sentencing Act) is able to meet the relevant sentencing considerations in this instance.
78In sentencing you I am also cognizant of the fact that Charges 2, 4 and 5 are rolled up charges.
Sentence
79Ms Drozdek, would you please stand.
80Anna Drozdek, on Charge 1, theft, Charge 2, knowingly dealing with the proceeds of crime and Charges 4 and 5, obtain property by deception, you are convicted and sentenced to 6 months imprisonment on each charge. On Charge 3, obtain property by deception, you are convicted and sentenced to 14 days imprisonment. Those sentences are concurrent and therefore the total effective sentence is 6 months as the prison component of the combination sentence pursuant to s 44 of the Sentencing Act.
81Following the period of imprisonment you will be placed on a community correction order for a period of two years with conviction. While all community correction orders are punitive in nature, the order that I am imposing has specific punitive and therapeutic components. You will be required to complete 250 hours of unpaid community work and you will be required to undergo treatment and rehabilitation in relation to gambling.
82Pursuant to s 48CA of the Sentencing Act, I direct that all of the hours that you satisfactorily complete pursuant to the treatment and rehabilitation condition, may be credited as hours of unpaid community work.
83Pursuant to s 6AAA of the Sentencing Act, if not for your plea of guilty I would have sentenced you to a period of imprisonment of 18 months with a non-parole period of 12 months.
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