Director of Public Prosecutions v Dunn
[2024] VCC 877
•28 May 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00356
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KAREN DUNN |
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JUDGE: | His Honour Judge Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 April 2024 | |
DATE OF SENTENCE: | 28 May 2024 | |
CASE MAY BE CITED AS: | DPP v Dunn | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 877 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Theft – Guilty plea – No prior criminal history – Theft from employer – Dishonestly obtained to fund living expenses – Family hardship – Compensation order
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:Channa v R [2020] VSCA 232; Boyton v The Queen [2016] VSCA 13; Guden (2010) 28 VR 288; Guden (2010) 28 VR 288; R v Esposito [2009] VSCA 277; Kovacevic v The Queen [2021] VSCA 49; Akoka v The Queen [2017] VSCA 214; Richardson v The Queen [2023] VSCA 241; DPP v Rita Moeller [2018] VCC 248; DPP v Luke Scott [2017] VCC 1907; DPP v Ashley Wilson [2016] VCC 89; DPP v Penni Jane Venn [2017] VCC 1043; DPP v Elizabeth Kirakopoulos [2017] VCC 1297; DPP v Marni Kane [2017] VCC 1741; DPP v Kelly Howard [2018] VCC 967; DPP v David Jacobs [2021] VCC 371; DPP v Sarany Mahendran [2021] VCC 2088; and DPP v Chian Reggie Chia [2022] VCC 2138; Boulton v The Queen [2014] VSCA 342; Peter Thorpe v The Queen [2016] VSCA 158; Dyason v The Queen [2015] VSCA 120; DPP v Caulfield [2019] VSCA 131; DPP v Zanin [2020] VCC 963; DPP v Brown [2020] VCC 1522
Sentence: 2 year Community Correction Order – s 6AAA declaration – Imprisonment for 12 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Cookson | Office of Public Prosecution |
| For the Accused | Ms E. Allan | Victoria Legal Aid |
HIS HONOUR:
1Karen Dunn, you have pleaded guilty to three charges of theft from your former employer Alscaf (Vic) Pty Ltd contrary to s 74 of the Crimes Act 1958. Each charge attracts a maximum penalty of 10 years’ imprisonment.
2Your offending took place between 14 January 2019 and 2 February 2022 in circumstances summarised in the agreed Summary of Prosecution Opening dated 7 August 2023.[1]
[1] Ex P1.
3The complainant in this matter is Alscaf (Vic) Pty Ltd trading as All Systems Scaffolding (Alscaf). Alscaf is a family owned and operated company in Footscray Road, Melbourne West. It was established in 1986. The company provides market leading access solutions to the construction, infrastructure, and industrial sectors throughout Victoria. At the time of the offending, the company employed 17 staff.
4You were employed by Alscaf from 2009 as a bookkeeper. You had the sole responsibility of management of all finances within the business. During your employment with Alscaf you undertook your role as a competent employee and had the full trust of the company director, Matthew Jones.
5At the time of the offending your salary was based on hours worked at an hourly rate of $53.32 which was paid into your Bendigo Bank Account every Wednesday.
The Offending
6From 2019, Alscaf commenced using the accounting software Quick Books. Mr Jones was not proficient with the system so when Alscaf suppliers raised queries about the payment of their invoices, despite the Quick Books system saying they had been paid, Mr Jones was suspicious but did not know how to check whether there was something wrong with the system. He relied upon and trusted you to manage the finances of the business.
7During 2020 and 2021 (the Covid-19 period) you were working from home and had taken the company computer and business records with you, making an audit difficult.
8In late January 2022, Mr Jones became more suspicious of continued issues with the payment of invoices and subsequently confronted you about his concerns. At this time, you were at home with Covid-19.
9In February 2022, you resigned and your last day at work was 9 February 2022.
10On 22 February 2022 you spoke on the phone with Mr Jones and admitted that you had defrauded the company. On the same day, you sent Mr Jones a handwritten list of 44 transactions in a photo outlining the money you had stolen from Alscaf and transferred into your personal bank account. The photo was sent with a message that read ‘I don’t have company names, but dates are the dates the amount would have left All Systems Acct. Fuck me I am an idiot. Kaz.’
11Mr Jones contacted his bank and had all 44 payments traced. The bank confirmed that all the payments in the list you provided, between 14 March 2019 and 7 January 2022, had been made into the same account, being an account held in your name at the Bendigo Bank. The total quantum of these initial identified fraudulent transfers was $83,936.45.
12To effect the thefts, you created a false invoice in the Quick Books system, purporting to be from a supplier with which the company had dealt. You would create all substantive details of the invoice, including the item description, the cost, and bank details. You would then authorise and make payment on the false invoice.
13Payment of the false invoice would be made into either your Bendigo or ANZ bank accounts. On occasion you would transfer the funds with a description narrative of ‘Pmt [invoice number]’ or a supplier name, which would not accord with an actual or created invoice. Review of the Quick Books system identified payments made without an invoice or supplier. Where invoice numbers or supplier names were entered, these entries were fictitious and not generated by a supplier for payment by Alscaf.
14Further investigation undertaken by Mr Jones, the informant, DLSC Tony Shearer and Alscaf employee executive assistant Kiahna Fawcett, revealed further thefts over the offending period as follows:
(a) Between 14 February 2020 and 7 January 2022, you made a total of 71 transfers from Alscaf NAB business bank account into your personal Bendigo Bank account. An additional 27 transactions were located after analysis of the bank statements and Quick Book system on top of the 44 already identified by you. The total quantum of the unauthorised transfers into the Bendigo Bank account was $122,515.85 (Charge 1).
(b) Between 16 April 2020 and 7 January 2022, you made a total of 20 unauthorised transfers from Alscaf NAB business bank account into your personal ANZ bank account. The total quantum of these transactions was $44,792.32 (Charge 2).
15You managed the payroll for all staff and were trusted to sign off on your own hours.
16Following identification of these fraudulent transactions, Alscaf undertook a review of the payroll and your timesheets. You were hired on a casual basis and paid hourly for the work completed. You did not have any entitlements to long service leave.
17The following anomalies were identified in the review, and amount to payments to which you were not entitled:
(a) Between 6 April 2021 and 12 April 2021, payslip included 40 hours paid and additionally declared Long Service Leave payment of $1,706.24 for the same period.
(b) Between 20 May 2021 and 26 May 2021, payslip included 32 hours paid and additionally declared Long Service Leave payments of $6,398.40 for the same period.
(c) Between 30 September 2021 and 6 October 2021, payslip included 52 hours paid and additionally declared Long Service Leave payments of $1,492.96 for the same period.
(d) Between 14 October 2021 and 20 October 2021, you submitted a timesheet of 35 hours worked but the payslip shows 50 hours paid. This is an overpayment of $799.80.
(e) Between 28 October 2021 and 3 November 2021, you submitted a timesheet with 32 hours worked but the payslip shows 40 hours paid. This is an overpayment of $426.56.
(f) Between 6 January 2022 and 12 January 2022, payslip included 32 hours paid and additionally declared Long Service Leave payments of $853.12 for the same period.
(g) Between 27 January 2022 and 2 February 2022, you submitted a timesheet with 32 hours worked but the payslip showed 46.77 hours paid. This is an overpayment of $787.54. In the same period, you also paid yourself a redundancy payment of 299 hours of unused leave in the amount of $15,955.73. At the time, you had no outstanding leave hours with the company.
18The total amount of overpayment of wages and leave entitlements came to $28,312.35 (Charge 3)
19The total quantum of all fraudulent transactions making up charges 1, 2 and 3 is $195,620.52.
Arrest and Interview
20On 28 June 2022, you self-presented at the Footscray Police Station for the purposes of a record of interview. The interview was conducted by Detective Leading Senior Constable Tony Shearer and Detective Acting Sergeant Duffy.
21During the interview you stated the following:
When questioned as to when and why you offended
(a) Your offending commenced after your husband had a heart attack in 2018 and his health deteriorated. You stated that your salary was not sufficient to sustain your living expenses as your husband has an alcohol addiction and you were both dependent on cigarettes.
(b) ‘I don’t know, I just thought – thought that that would be I don’t know, easy, I don’t know. I don’t know why I did it, it’s stupid. Cause I’ve never done anything like this . . . in my life.’
When asked how you did it
(c) ‘I’d put it as the supplier name, and just put it in, like the – I’d put it as the supplier name, and I would put the amount that I’d obviously put into the books.
Regarding your salary payments
(d) You couldn’t recall why you had payments from payroll as high as $6168.00
Where did all the money go?
(e) ‘Just stupid spending.’
How did you get away with it for so long?
(f) It was trust, well, I was trusted.
22Following a review of the bank statements obtained under warrant it was clear that the majority of stolen funds were used for living expenses.
Objective gravity and moral culpability
23As the Court of Appeal explained in the case of Channa v R,[2] ‘[t]he objective gravity of any theft needs to be considered by reference to what was taken (including its value), from whom it was taken, and all other relevant surrounding circumstances, including the purpose for which it was taken’.[3]
[2] [2020] VSCA 232.
[3] Ibid, [71].
24The duration of the offending and the degree of planning involved will also be relevant as will the lengths the offender went to avoid detection.
25A court will also consider what use was made of the funds by the offender and whether any of the stolen funds have been repaid.[4]
[4] Boyton v The Queen [2016] VSCA 13, [63].
26The amount you stole was significant although it is considerably less than is often the case in matters in this court. The duration of your offending was considerable. Your counsel conceded that stealing from your employer from the position you held in this small business involved a fundamental breach of trust. The impact of that breach is described by Mr Jones in his victim impact statement.
27There is no suggestion that the money was used to fund a lavish lifestyle. As the prosecution conceded, this was a case of need and not greed.
28It is to your credit that you have repaid $24,800 and that you are consenting to a compensation order in the sum of $170,820.52. When your house was listed for sale in May of 2023, the prosecution obtained a restraining order so that when the sale went through in July of 2023 the proceeds were restrained and are available to meet that order. That is often not the case.
29Having regard to the considerations identified earlier, I assess the objective gravity of your offending as approaching the mid-range of seriousness. The breach of trust involved means that your moral culpability is considerable.
Victim Impact
30A victim impact statement dated 3 September 2023 was prepared by Mathew Jones. Mr Jones, on behalf of Alscaf, states that you held a very important position ‘that yielded a large amount of trust’ and that your offending was a breach of this trust. He explains that he needed psychological and psychiatric treatment to help him recover from your offending.
31I have taken into account the impact of your offending on both the company and Mr Jones.
Personal circumstances
32You were born in New Zealand and have a dysfunctional family history characterised by family violence and sexual abuse. Mr Cunningham considers that you have a ‘history of childhood abandonment and trauma’.[5]
You have lived in Australia since 1979. You have no contact with your remaining family in New Zealand.[5] Ex D1, 3.
33Because you are a New Zealand citizen, and despite living in Australia for 44 years and having few connections with the land of your birth, imprisonment could trigger your deportation.
34The prospect of this is relevant to sentencing because it may increase the burden of imprisonment beyond that of a person who does not face that risk.[6]
[6] Guden (2010) 28 VR 288, 295.
35Since moving to Australia you have been involved in a relationship with a man called Roger and you have two adult children Justin and Jessie. Sadly your relationship with Roger was marred by such violence that you had to escape from the family home in 1994. You have had no contact with Jessie since he was 11. However, in recent years you have re-connected with Justin and enjoy the company of your three young grandchildren.
36You are 62 years old. You have known Scott Dunn since 1994 and married him in 2015. Mr Dunn is 57 years of age. The two of you purchased a home together in 2004. As notred, the court was informed that the prosecuting authorities will use part of the proceeds of the sale of that home to compensate the victim of your offending.
37For the purposes of the plea hearing, your solicitors had you examined by Dr Aaron Cunningham, a forensic psychologist. Dr Cunningham’s report dated 28 August 2023 was tendered in evidence.[7]
[7] Ex D1.
38Dr Cunningham opines that you meet the diagnostic criteria for Post Traumatic Stress Disorder.[8] Dr Cunningham sees no connection between your mental health and your offending. He states that you rationalised your offending on the basis that your work was preventing you from looking after your husband.
[8] Ibid, 3.
39Turning to future risk, Dr Cunningham opines that you do not present with a history of antisocial behaviour and your offending ‘occurred during a significant time of crisis and does not reflect an antisocial personality’.[9]
[9] Ibid, 4.
40I accept this opinion. Together with your clean record, your age and your family responsibilities, it means that I can assess your rehabilitation prospects as very good and your risk of re-offending as low. I note that you were assessed as a medium risk of re-offending by Corrections.[10] Corrections considers that you expressed insight into your offending and expressed remorse.
[10] Community Correction Order Assessment Outcome Report dated 16 April 2024.
41Dr Cunningham expresses the view that imprisonment will be more onerous for you due to your untreated trauma. This provides a basis, albeit quite a weak one, for the application of limb 5 of Verdins.
42Dr Cunningham’s report concludes as follows:
Ms Dunn presents with significant untreated trauma. In my opinion, these symptoms would be aggravated by the separation from Scott and the perception that she will not be able to provide for his care. She stated she would kill herself if incarcerated. She stated that Scott would have ‘no-one’ because of her failures. Ms Dunn would benefit from case management in the community.[11]
[11] Ex D1, 4.
Family hardship
43You are the full-time carer for your husband Scott and your sole income is a carers’ pension. Mr Dunn began experiencing serious health problems in 2002 when he underwent cervical spine surgery. He was diagnosed with Hodgkins Lymphoma in 2011 and in 2018 suffered a cardiac arrest after which a pace maker was fitted. He has not worked since. Mr Dunn is currently waitlisted for eye and abdominal surgery and recently fractured some vertebrae when he had a fall.
44Mr Dunn made a statutory declaration dated 10 April 2024.[12] He declares that he has multiple and complex diagnoses and comorbidities and included details. He states that his prognosis is that his conditions are unlikely to improve.
[12] Ex D3.
45You are his sole carer and he describes your support as ‘singular and unbelievable’. He states that he does not have other family or friends who can support him as you do. You assist with his feeding, bathing and administering medication.
46Mr Dunn told Mr Cunningham in a telephone interview that his life would be devastating without your presence. He relies on you for cleaning and you sometimes have to wipe him after he goes to the toilet.[13] He cannot drive and relies on you to drive him to medical appointments including driving from Yarrawonga to Melbourne for specialist treatment.
[13] Ex D1, 4.
47A letter dated 5 September 2023 from Mr Dunn’s doctor, Dr Wilhelm Van Rheede Van Oudtshoorn, was tendered on the plea.[14] Dr Van Oudtshoorn confirms Mr Dunn’s medical condition and states that he needs a constant level of supervision and care that you provide.
[14] Ex D2.
48The court also received a report dated 19 May 2024 prepared by Dr Angela Sungaila of Fidelis Forensics.[15] The report includes a detailed description of Mr Dunn’s numerous medical conditions. The report concludes as follows:
Scott Dunn states in a Statutory Declaration dated 10 April 2024 that his wife Karen Dunn assists him by feeding, bathing, administering medication and getting him out of bed. He is unable to drive and relies on her to get him to appointments. This is in keeping with the effects of his illnesses.
He has serious medical conditions and is likely to have a limited life expectancy. He has a risk of decompensation of both his liver and cardiac disease which may urgently require rapid transfer to a hospital.
Mr Dunn’s best chance of survival is strict adherence to a medication regime under medical supervision, access to general and specialist medical services and stability of his personal circumstances.[16]
[15] Ex D5.
[16] Ibid, [57]-[59]
49These matters are relevant to the sentence I impose because any time you spend in custody will likely be more difficult than would otherwise be the case due to the anxiety you will undoubtedly suffer knowing that you will be unable to care for Mr Dunn. I have mitigated your sentence accordingly.
50Your counsel submitted that, in addition, based on this evidence yours is also a case that reaches the high bar of family hardship. It was submitted that the hardship to a third party, in this case Scott Dunn, is relevant to sentence as a matter of mitigation. Yours is said to be an example of the ‘exceptional case where the plea for mercy is seen as irresistible’.[17]
[17] Defence Submissions on Plea dated 8 April 2024, [25], citing Markovic [2010] VSCA 105, [77].
51Family hardship is generally only a mitigating circumstance in sentencing if it will cause ‘exceptional hardship’.[18] That is because it is generally inevitable that the family of an offender will suffer if the offender is imprisoned. That is one of the ordinary incidents of a custodial sentence.
[18] Markovic v The Queen [2010] VSCA 105.
52To establish exceptional hardship, an accused must produce ‘cogent evidence’ to establish that their situation is so exceptional that ‘it would be, in effect, inhuman’ not to take it into account.[19]
[19] R v Esposito [2009] VSCA 277, [14].
53The principle is applied ‘as an exercise of mercy properly extended by the court in such a case’.[20] The Court of Appeal has recognised that ‘there must always be a place for the exercise of mercy where the circumstances warrant it’. This is because ‘justice and humanity walk together’.[21]
[20] Kovacevic v The Queen [2021] VSCA 49, [53].
[21] Akoka v The Queen [2017] VSCA 214, [74].
54I have concluded that yours is such a case. The unchallenged evidence before the Court is that your husband, who suffers from a number of serious ailments, and is wholly reliant on you for care that he describes as both ‘singular and unbelievable’, would not be cared for in your absence. This is therefore an appropriate case for the exercise of mercy in my view. The Court of Appeal has recently recognised that ‘the exercise of mercy towards an offender forms an integral part of the sentencing discretion’.[22]
[22] Richardson v The Queen [2023] VSCA 241, [92].
55I have therefore taken into account in mitigation of your sentence the effect that a custodial sentence would have on you as well as the impact it would have on your husband Scott.
Current sentencing practices
56The court was referred by your counsel to a number of decisions of this Court in which straight CCOs were imposed in cases that are said to be comparable with yours.[23] In each case the offender, who had no prior convictions, pleaded guilty to dishonestly obtaining money from their employer. The amounts involved were in each case less than $250,000. It is to be recalled that the total amount of your thefts is $195,620.
[23] DPP v Moeller [2018] VCC 248; DPP v Scott [2017] VCC 1907; DPP v Wilson [2016] VCC 89; DPP v Venn [2017] VCC 1043; DPP v Kirakopoulos [2017] VCC 1297; DPP v Kane [2017] VCC 1741; DPP v Howard [2018] VCC 967; DPP v Jacobs [2021] VCC 371; DPP v Mahendran [2021] VCC 2088; and DPP v Chia [2022] VCC 2138.
57I have read these decisions. I accept that they are comparable to yours in relation to objective gravity and mitigating matters. In each case, the sentencing Judge recognised the importance of general deterrence in white collar dishonesty cases but determined that all relevant sentencing purposes could be satisfied by a community-based disposition. This course is consistent with the observations of the Court of Appeal about the punitive nature of Community Correction Orders.[24]
[24] Boulton v The Queen [2014] VSCA 342, [91]-[97]; see also Thorpe v The Queen [2016] VSCA 158, [32]-[34].
58Such cases are not precedents. It is trite to acknowledge that each case is to be sentenced according to its own unique facts and circumstances. A sentencing Judge must strive to give effect to established sentencing principles as explained by appellate courts. The relevant principles in relation to offending of this nature have been reiterated by the Court of Appeal on several occasions.[25] It is clear that general deterrence is of the utmost importance as a sentencing purpose.
[25]See DPP v Bulfin [1998] 4 VR 114, 131-2; Dyason v The Queen [2015] VSCA 120, [32]-[34]; and DPP v Caulfield [2019] VSCA 131.
59There are of course cases where senior employees who have used their positions to enrich themselves have received terms of imprisonment sometimes in combination with a CCO.[26] This is consistent with the importance of general deterrence in such sentencing exercises. However, generally speaking, the cases where custodial sentences have been imposed involved amounts stolen that far exceed the amount involved in your case.[27]
[26] DPP v Bulfin [1998] 4 VR 114; Dyason v The Queen [2015] VSCA 120; DPP v Caulfield [2019] VSCA 131.
[27] In Dyason, the amount stolen was $1.4m; in Caulfield it was $460,000.
60Significantly, the Court of Appeal has explained that, because of the punitive features of CCOs as explained in the case of Boulton,[28] the sentencing principle of general deterrence will not always require a term of imprisonment to be imposed in cases of white collar dishonesty offending.[29] However, in assessing in a particular case whether a CCO (whether alone or in combination with a custodial sentence) is an adequate sentence, a sentencing court must continue to have regard to the considerations referred to in Bulfin.[30]
[28] Boulton v The Queen [2014] VSCA 342.
[29] DPP v Zanin [2020] VCC 963; DPP v Brown [2020] VCC 1522.
[30] DPP v Bulfin [1998] 4 VR 114, [40].
Submissions
61The prosecution submitted that yours is a moderate example of inherently serious offending. This is based on an assessment that the breach of trust was ‘towards the upper end of what the Court might usually see for offences of this type, persistence towards the upper end and a monetary value that is closer to the lower end’.[31]
[31] Prosecution Submissions on Plea dated 15 April 2024, [4].
62The prosecution accepted that there are several significant matters that mitigate sentence but that the only sentence that is capable of giving effect to the purposes of general deterrence, just punishment and denunciation is a head sentence and a non-parole period.[32]
[32] Ibid, [32].
63The prosecution maintained this submission after considering the further medical report concerning Mr Dunn that was filed by your solicitors and was discussed earlier in these reasons.[33]
[33] Further Prosecution Submissions on Plea dated 27 May 2024, [6].
64Your counsel submitted that, while your offending is serious, the absence of any criminal history, the early guilty plea, genuine remorse and your personal circumstances including your age, traumatic childhood and responsibilities as Mr Dunn’s carer, mean that the relevant sentencing purposes can be met by a CCO.[34]
[34] Defence Submissions on Plea dated 8 April 2024, [41]-[42].
Consideration
65As discussed earlier in these reasons, yours was serious offending that involved a significant breach of trust. It is commonly the case that an immediate period of imprisonment is the only appropriate disposition in such a case.
66However, there is a number of features of your case that have convinced me to accept your counsel’s submissions and not to sentence you to a custodial sentence. Rather, I will allow you to serve your sentence in the community. In summary those features are:
(a) Your plea of guilty at a very early stage is an indication of your acceptance of responsibility, a degree of remorse and attracts the utilitarian benefit associated with saving the time and expense of a trial and the inconvenience to witnesses;
(b) The offending is not in the more serious range having regard to the amount stolen and your reasons for offending;
(c) You have agreed to repay the money and there are funds available to ensure you do;
(d) You had a traumatic childhood, and have lived a blameless life, and are now over 60 years of age;
(e) There is a risk that you would be deported to New Zealand if sentenced to a term of imprisonment exceeding 12 months;
(f) You have insight into your reasons for offending and are genuinely remorseful;
(g) Your rehabilitation prospects are very good and your risk of re-offending is low, both of which reduce the significance of specific deterrence and community protection as sentencing considerations; and
(h) The extent of the support you provide for your ailing husband meets the threshold of ‘exceptional circumstances’.
67It is also necessary to have regard to the statutory mandate, as expressed in s 5(4) of the Sentencing Act 1991 (Vic) (‘Sentencing Act’), that a court must not impose a term of imprisonment on an offender unless the purposes for which sentence are to be imposed cannot be achieved by a sentence that does not involve confinement of the offender.[35] I have concluded that all relevant sentencing purposes can be achieved in your case by a community-based sentence.
[35] See also Sentencing Act 1991 (Vic), s 5(4C).
68You were assessed by Corrections for suitability for a Community Correction Order. In a report dated 16 April 2024, you were found to be suitable.
Order
69I am unable to impose a CCO unless you consent to me doing so and I explain to you the purpose and effect of the order, the consequences of breaching the order and the manner in which the order may be varied.[36]
[36] Ibid, s 95.
70The following core conditions apply to all community correction orders:
(a) You must not commit, whether in or outside Victoria during the period of the order, an offence punishable by imprisonment;
(b) You must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee, during the period of the order;
(c) You must report to the Wangaratta Community Correctional Services by 4.00 pm on Thursday 30 May 2024.
(d) You must notify the Secretary, or his or her nominee, of any change of address or employment within two clear working days after that change;
(e) You must not leave Victoria except with the permission of the Secretary to the Department of Justice, or his or her nominee, and this includes going to NSW to visit your son; and
(f) You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure you comply with the order.
71I also attach the following additional conditions to the CCO. In doing so I have had regard to the principle of proportionality as well as the purposes for which a sentence can be imposed and the purpose of a CCO.[37]
Unpaid community work
[37] Sentencing Act 1991 (Vic), s 48A.
72I require you to perform unpaid community work for a total of 120 hours. This is to adequately punish you. As recommended in the PSR, and because I am also imposing a treatment condition, I order that up to 40 hours that you satisfactorily undertake of treatment be counted as hours of unpaid community work.[38]
Other Conditions
[38] Ibid, s 48CA.
73As recommended in the Corrections report, I will impose an offending behaviour condition. I will also impose a condition requiring you to partake in treatment and rehabilitation relating to your alcohol use which has increased recently as discussed in the report.
74I will now tell you about the consequences for breaching such an order.
75If you contravene the order by not fulfilling the conditions, or if you breach the order by committing further offences, you can be charged and a sentence of imprisonment is one of the options that can be imposed for the breach. You can also be re-sentenced for the offences that are before me now and, of course, one of the options available would be a term of imprisonment. So you must make sure that while you are on this order you do not commit any further offences during the term of the order, which will be two years, that might incur a term of imprisonment, otherwise you would almost certainly be back before the court and re-sentenced on the charges that are before me.
76You also need to understand that if you fail to comply with any direction of the Secretary to the Department of Justice, being a Community Corrections officer as part of this order, a substantial fine can be imposed.
77You may apply to this Court to vary a condition of the CCO if your circumstances change so that you can no longer comply with the Order or another reason set out in s 48M of the Sentencing Act.
78Do you understand the conditions and the consequences of breaching the CCO and how the order may be varied? Do you consent to the order being made?
79I will impose one CCO as the three offences are of a similar character.[39]
[39] Sentencing Act 1991 (Vic), s 40.
80The Order I am making will be of two years’ duration.
81I will make the compensation order pursuant to s 86 of the Sentencing Act in favour of Alscaf (Vic) Pty Ltd in the sum of $170,820.52. The Order should include the ACN of the company.
82Finally, pursuant to s 6AAA of the Sentencing Act, I state that if you had been found guilty of these offences by a jury, I would have sentenced you to imprisonment for 12 months.
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