Director of Public Prosecutions v Edelman (a pseudonym)
[2022] VCC 2067
•21 November 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01550
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Mary Edelman (A pseudonym) |
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JUDGE: | HER HONOUR JUDGE BLAIR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 October 2022 | |
DATE OF SENTENCE: | 21 November 2022 | |
CASE MAY BE CITED AS: | DPP v Edelman (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2067 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – Plea of Guilty – Obtaining Financial Advantage by Deception – Delay
Legislation Cited: Criminal Procedure Act 2009 (Vic) – Sentencing Act 1991 (Vic)
Cases Cited:Worboyes v The Queen [2021] VSCA 169 – DPP v Zogheib (2015) VSCA 334 – Boulton v The Queen [2014] VSCA 342
Sentence: Community Corrections Order for a period of 20 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Nicholas Goodenough | The Office of Public Prosecutions |
| For the Accused | Amy Brennan | Victoria Legal Aid |
HER HONOUR:
1Mary Edelman[1], on 24 October 2022 I granted your application for a sentence indication on three rolled up charges of obtain financial advantage by deception. Pursuant to s207(1)(a) of the Criminal Procedure Act2009,[2] having heard a summary of your offending and submissions from both your counsel and the prosecution I indicated that I would impose a Community Correction Order by way of penalty. On the basis of this indication your matter resolved and you were arraigned on indictment K11785469 on 21 November 2022 and you pleaded guilty to the three rolled up charges of obtaining financial advantage by deception.
[1]A pseudonym.
[2]Criminal Procedure Act (Vic) 2009 s207(1)(a).
Offending
2A document entitled ‘Agreed Facts for Sentence Indication’, was adopted as the Crown Opening and tendered on your plea. I don’t propose to recite this document in full, rather what now follows is a summary of your offending.
3At the time of your offending you were between 37 and 39 years old and a mother of 3 children who were all in your care. In early 2011 you began a relationship with Paul Edelman.[3]
[3] A pseudonym
4Later in 2011 you and your 3 children moved into a private rental property in Cranborne with Paul Edelman. You were responsible for looking after the household finances and you had access to Paul’s National Australia Bank account for this purpose.
5After the death of Paul’s father, John[4], you together with your children and Paul moved in with his mother, Katherine Edelman.[5] There was an informal arrangement made between Paul and his mother that you would pay $200 per week rent, the bills and food for the family, from his bank account.
[4] A pseudonym
[5] A pseudonym
6Katherine Edelman suffered from ongoing and extensive health issues that required short periods of hospitalisation between 2013 and 2016. In time you became Katherine’s full time carer. You registered with Centrelink and received carer payments. To assist in paying bills you were given access to Katherine’s Commonwealth Bank Pensioner Security Account. Home Help through the local Council to assist with cleaning and the upkeep of the home, was in place between July 2014 and January 2015. This was organised by Katherine’s grandson, Jackson Long.[6]
[6] A pseudonym
7In 2016 Jackson Long had planned to get money from his grandmother for a deposit on a house. When they attended the bank they were advised that one of Katherine’s bank accounts had been closed and there was a balance of approximately $100 in the other account. Jackson obtained bank statements from the bank. Later that day he confronted Paul Edelman about the state of the bank accounts. After leaving Jackson did not visit Katherine again for more than 3 months rather he contacted his estranged mother, Tracey Long[7], and told her what had gone on.
[7] A pseudonym
8Approximately 3 months later Jackson Long received a letter from VCAT. The letter stated, Katherine Edelman was in a full time care facility and that they would be taking over her estate. Medical records confirmed that Katherine Edelman was admitted to hospital on the 17 August 2016 she was discharged from hospital into a supported living facility on the 25 October 2016.
9Tracey Long visited Katherine in the supported living accommodation. Katherine told Tracey that you and Paul Edelman had stolen all her money. Katherine also told Tracey that she had given you the debit card to her bank account in December 2014 on the understanding that it would be used to pay the council rates and the utility bills, it was later discovered that many bills were unpaid and in arrears.
10On the 13 October 2016 Tracey Long confronted Paul Edelman with Katherine’s entire bank statements spread out on the dining table. Paul took a copy of the statements and confronted you, at that time you denied the accusation although you admitted that you had stolen some money. Both you and your children left the house that night.
11Tracey Long reported the matter to the police. The Commonwealth Bank, applied for and was granted power of attorney for Katherine Edelman, and together with other family members commenced getting the property ready for sale. Katherine Edelman passed away in April 2019.
12Katherine Edelman and John Edelman had a joint Pensioner Security Account with the Commonwealth Bank with the account number ending 6429.
13Katherine Edelman had a Goal Saver Account with the Commonwealth Bank with the account number ending 9273. Additionally, Katherine had two Term Deposit accounts with the Commonwealth Bank with the account numbers ending 9578 and 2234.
14You were given access to the debit card attached to the Pensioner Security Account for the purpose of paying bills and rates. From the 19 February 2014 the bank statements show the first ATM cash withdrawals from the Pensioner Security Account with several such withdrawals being recorded each week. On the 22 March 2014 Katherine Edelman’s bank accounts were registered with the Commonwealth Bank’s internet banking system known as NetBank.
15You accessed the bank accounts of Katherine via the telephone banking system and transferred funds from the Goal Saver Accounts to the Pensioner Security Account to which you had access.
16On 8 May 2014, $12,000 was transferred from Katherine’s Goal Saver account into the Pensioner Security Account using Phone Assist Banking. A recording of the telephone conversation was obtained from the Commonwealth Bank. The call was made by you, although you claimed to be Katherine. You set up a password on the account using your knowledge of Katherine’s banking details. An amount of $12,000 was then transferred to the Pensioner Security Account allegedly for the purpose of getting solar panels installed. The balance of the Pensioner Security Account was $18,992.20 following this transfer.
17Similar telephone banking transfers occurred on the following dates:
8 May 2014
2,000
9 May 2014
7,000
26 May 2014
9,500
4 June 2014
3,000
11 June 2014
1,500
10 July 2014
4,000
10 October 2014
8,000
18These transactions together with the $12,000 mentioned above are the subject of Charge 1.
19The following transactions are subject of charge 2 on the indictment
12 January 2015
3,000
6 March 2015
20,000
24 March 2015
11,000
15 September 2015
30,000
20The following transactions are the subject of charge 3 on the indictment
29 January 2016
5,000
29 February 2016
2,000
29 February 2016
1,700
21The money transferred to the Pensioner Security Account was then used by you personally at a time when Katherine was in hospital.
22On the 25 September 2016 the Pensioner Security Account of Katherine Edelman had a balance of $2.83 and the Goal Saver Account had a balance of $0.46.
23The total value of the unauthorised transfers of money was $119,700.
Nature and gravity of offending
24That this offending is serious is objectively indicated by the maximum penalty of 10 years imprisonment for obtaining financial advantage by deception. Your particular offending occurred over 21 months and involved 15 transactions totalling $119,700. It was protracted, consistent and repeated offending that involved a significant amount of money.
25The victim was your mother-in-law, Katherine Edelman. She was physically unwell and vulnerable and relied on you to for her day to day care and trusted you to manage her financial affairs. It was in the context of this care relationship that you were able to offend. I accept the prosecution submission that through your offending conduct you exploited the vulnerability and trust of your victim.
26I was told and I accept that the Commonwealth bank have reimbursed Katherine Edelman’s estate so it is the bank who are out of pocket. However, Katherine Edelman was aware of the theft and was no doubt upset and stressed by this in the latter years of her life.
Victim Impact Statement
27The primary victim of your offending has now deceased. A victim impact statement was tendered on behalf of Katherine Edelman’s daughter Tracey Long. The majority of this statement is not admissible. I do however, take into account that your offending occurred at a time when you were entrusted to care for Katherine Edelman in the latter years of her life when there was no one else to care for her. I take into account that Katherine was well cared for in the last few years of her life and that Tracey Long visited her mother regularly.
Background
28You are now 45 years of age. At the time of the offending you were aged between 37 to 39 years old. You have no prior convictions and you have not engaged in any subsequent offending.
29You were born and raised in Sydney. Sadly, your own mother passed away last Wednesday. She was 76 years of age. During her working life she had employment as a cleaner. Your father, is now 77 years old and suffers from Parkinson’s disease. Throughout his life he worked as a nurse but, he is now retired. I was told and accept that you have a very good relationship with your father and maintain regular telephone contact. You have an older half-brother and an older sister, you do not have an ongoing relationship with either of them.
30When you were around the age of 9 years your parents separated. You moved with your mother and siblings to Queensland. Your half-brother who is nine years older than you began to sexually abuse you after the separation of your parents. You reported the abuse to your mother and some action was taken in the Children’s Court but neither you or your brother were removed from your mother’s care.
31You did not feel supported by your mother throughout this experience as you were forced by her to tell your brother that you had forgiven him. At the age of 12 you went to live with your father.
32In terms of schooling, initially you attended Primary School in Sydney. After moving to Queensland you attended two different primary schools. When you moved back to New South Wales with your mother you changed schools and again when you went to live with your father you attended yet another school.
33Your secondary years were more settled and you completed year 12. You then went on to obtain a certificate 3 in Early Childhood Education and a certificate 2 in Community Service.
34During your school years you were employed part time at a fast food restaurant. Upon completing school you remained employed there, all up you worked for this company for 6 or 7 years. You then went on to work at a supermarket until you became pregnant with your first child.
35Whilst at high school you met your husband. You gave birth to your first child at around 20 years of age and by time you were 21 you were married. Your marriage persisted for 12 years and you had two further children. All of your children still live with you and you enjoy a close relationship.
36Unfortunately, your marriage was marred by family violence as your husband was an abusive alcoholic. No charges were ever laid against him but an AVO was taken out after separation and the children had no contact with him since this time. You moved to Victoria in 2008 to escape continued unwanted abusive contact from him.
37Initially, you moved to an area nearby to where your mother was living. This was the first time you had spoken to your mother since you were about 12 years of age. Not surprisingly there were difficulties in this relationship and after 6 months you moved away and ceased contact.
38Over the years you have had several jobs including working at a Speedway, an amusement park, service stations and as an integration aide or education support worker. When you moved to Victoria you initially had a job in a fish and chip shop where your kids could sit in the restaurant part if needed while you worked. Your last employment was with a printing business. This employment ended around the start of the pandemic in 2020.
39In early 2011 you met Paul Edelman on an online dating site. You and your children moved into a rental property together with Paul shortly after you met. Although Paul has two children you never met them during your five year relationship with him.
40In late 2013 after the death of Paul’s father, yourself, your children and Paul moved in with his mother Katherine Edelman. During your relationship Paul worked 6 to 7 days a week as an asphalter and earned around $1500 per week. You were not formally employed but you cared for your children and were otherwise engaged in home duties and caring for Katherine. As time progressed Katherine became increasingly unwell. You were her main physical support during this time, with only brief periods of respite. There was little contact from other family and little by way of emotional support from Paul.
41Your relationship with Paul ended upon discovery of your offending and you immediately moved from the family home with your children. You were homeless for a period of time but eventually you were able to find private rental accommodation.
42You are currently single and you are not working. You are reliant on a Centrelink Newstart allowance and your children contribute informally to household expenses.
43Your children are now young adults and are all working. Your youngest daughter is also studying. A testimonial from your youngest daughter was tendered on the plea. She described you as a loving mother who always put the needs of others before your own and spoke of how you protected your children from an abusive father.
Matters in mitigation
44As described above your case resolved at a sentence indication hearing. Your matter has taken sometime to progress through the courts and there have been difficulties with disclosure from the Commonwealth Bank in particular.
45I consider your plea to be an early one as shortly after disclosure of evidence was made you sought a sentence indication and have accepted such indication. In the circumstances, your plea has significant utilitarian benefit. The court has been spared the time and expense of what would have been an emotional and difficult trial and witnesses were not required to give evidence. Importantly grieving family members were not put through the uncertainty of the trial process.
46In addition, I accept your counsel’s submission that a plea of guilty during the covid-19 pandemic is worthy of greater weight in mitigation and should attract a more pronounced amelioration of sentence than at other times[8].
[8]Worboyes v The Queen [2021] VSCA 169.
47I consider your plea to be a valuable one in the sense that the main victim and witness in the case is deceased which would have necessitated the prosecution to rely on a hearsay notice and the evidence from the Commonwealth Bank remains incomplete. In these circumstances, I cannot increase the utilitarian value of your plea. However, I can and do take into account, the subjective factors that your plea of guilty demonstrates. These factors include your desire to facilitate justice, your acceptance of responsibility for your offending and as an indicator of the depth and degree of your remorse[9].
[9]DPP v Zogheib [2015] VSCA 334.
48I propose to allow a significant discount for your plea of guilty in the circumstances of this case.
49In addition, I accept that your plea of guilty is a demonstration of your genuine remorse. Further evidence of your remorse was contained in the testimonial from your daughter and also the pre-sentence report from Corrections.
Delay
50Delay is an important mitigatory factor I take into account in your case. Your offending occurred between 6 to 8 years ago. You were not interviewed until June 2017 and then again in February 2018. In July 2019 you were charged with 323 offences. Your case has remained unresolved for 3 years. There have been numerous listings and unsuccessful attempts at resolution. Your matter has been caught in the backlog of cases that have plagued the court as a result of the covid-19 pandemic.
51I also accept that since your arrest and since being charged in 2019 you have had to live with the worry and strain of this case and it has caused you enormous anxiety and stress. Since this time, you have not known what your future would hold in terms of your liberty.
52The delay has also allowed you to demonstrate that you have an ability to foster rehabilitation. I accept that you are unlikely to reoffend in the future both because you have no prior convictions and because you have not been charged with any other offending subsequently. In addition you have a supportive family and a stable home. In my view you have excellent prospects for rehabilitation.
Mental Health
53Although no psychological report was tendered on your plea I do take into account your difficult life circumstances and the impact this has had on your mental health over the years. Further I take into account that prior to your first court appearance, you attempted to take your life by taking too much paracetamol. You were driven to hospital by your son and treated in the emergency department. Hospital staff referred you to speak to a counsellor, but you found it difficult to talk about these issues with anyone.
54The pre-sentence assessment of the Mental Health Advice and Response service confirms that you present with a mild to moderate mental health problem and the clinician recommended that you receive ongoing treatment. I intend to make this a condition of the order I am about to impose.
Sentencing principles
55I consider that the relevant sentencing principles that must be applied in your case are general deterrence, denunciation and just punishment. In my view, specific deterrence plays little or no role in the sentencing matrix, given your lack of prior convictions, lack of subsequent offending and your experience in the protracted and unpleasant court process. Further, I am of the view that your rehabilitation should be fostered and not interrupted. I take into account the principles of proportionality and parsimony, that is I must do no more than is necessary to punish you.
56I consider that a sentence of imprisonment is not required in the circumstances of your case and the sentencing factors of general deterrence, just punishment and denunciation can be addressed by the imposition of a Community Correction Order. In coming to this conclusion I am mindful of the guidance given by the Court of Appeal in Boulton v The Queen[10], that is, a Community Correction Order may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment.
[10]Boulton v The Queen [2014] VSCA 342; (2014) 46 VR 308.
Disposition
57Ms Edelman, if you could stand now. In relation to the 3 rolled up charges of obtaining financial advantage by deception you will be convicted of these charges. I have had you assessed for a Community Correction Order and you have been assessed as suitable for such an Order. I therefore order you be placed on a Community Correction Order for a period of 20 months from today. The conditions of this Community Correction Order include that you must perform
(a) 200 hours of unpaid community work over that 20 month period;
(b) Submit for assessment and treatment for mental health;
(c) You are also to attend for supervision.
58With regard to the community work I will offset the 100 hours of community work against the treatment. So that means if you engage in counselling, any hours that you do up to 100 hours will be taken away from the community work. So if you were to do 100 hours of counselling, that will leave you with 100 hours of community work. That is an incentive for you to get into some counselling.
59In addition to the conditions that I have imposed, there are standard conditions that you must comply with. The first and foremost of these is that you are not to commit another offence punishable by imprisonment for the period of the Order, which is 20 months. You need to report within two working days to your nearest Corrections office, which will be identified in the Order..
60You are required to advise your supervising Corrections Office of any change of address where you are living or working within two clear working days. And it is a term of all Community Correction Orders that you must submit to visits as directed and obey the instructions and directions of the Corrections officer and you cannot leave the State of Victoria without prior permission.
61Ms Edelman if you reoffend you will breach the Correction Order, if you do not comply with the conditions you will breach the Correction Order, and if you do that you will come back before me and you might be resentenced in relation to these original charges.
62I can only place you on a Correction Order if you agree – so do you understand what is involved in the Order?
63And do you consent to such an order?
64Pursuant to s. 6AAA of the Sentencing Act but for your plea of guilty the sentence I would have imposed is 6 months imprisonment and a Community Correction Order in similar terms to the one I have ordered today.
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