Director of Public Prosecutions v Engel

[2015] VCC 71

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-01780

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL ENGEL

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	4 February 2015
DATE OF SENTENCE:	4 February 2015
CASE MAY BE CITED AS:	DPP v Engel
MEDIUM NEUTRAL CITATION:	[2015] VCC 71

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Nibbs	O.P.P.
For the Accused	Mr C. Boyce S.C. with Ms G.F. Connelly	Amad Lawyers

1HIS HONOUR: Daniel Engel, you have pleaded guilty to four charges of theft, contrary to s.74 of the Crimes Act 1958.  The maximum penalty for that offence is 10 years imprisonment. 

2You first pleaded guilty at committal mention and I have taken your early plea into account in your favour in mitigation of sentence.  Your plea has spared the community the cost and demands of a criminal trial and I accept it is evidence of remorse in your case. 

3You have admitted one prior court appearance in 1997 which is not significant for sentencing purposes in this case.  On that occasion the charge was adjourned for 12 months without conviction. 

4A prosecution opening was read to the court and tendered in evidence and your offending may be summarised as follows: 

5Between November 2011 and February 2014, you were employed as the IT systems manager for Martin and Pleasance Pty Limited, a business located in Port Melbourne, that is a wholesale supplier of natural medicines.  To perform your duties, you were empowered to create and authorise payments and you were a signatory to the company's bank accounts. 

6Between the dates alleged in the charges on the Indictment, you stole the sum of $315,761.76 from your employer.  You did this by the creation of false invoice payments, false taxation payments and the use of the company's PayPal account for your own purposes.  Your offending was, to some degree, sophisticated and involved numerous acts of dishonesty.  Whilst it continued undetected for over two years, it was, in my opinion, inevitable that it would be discovered. 

7On or about 11 February 2014, your offending came to light.  After travelling to Queensland when this occurred, you returned to Victoria and thereafter assisted your employer in an audit it conducted to determine how much money you had stolen.  The matter was reported to police and you made full and complete admissions when you were interviewed by them.  Your offending is serious in nature and may be described as a systematic and sustained breach of trust.  Furthermore, you stole a substantial sum of money.

8It is well-established that the sentence I impose must be calculated to deter you and others from offending in this way.  You must also be punished for what you have done.  General deterrence is an important sentencing consideration in cases of this type. 

9Upon your offending being discovered, you repaid $70,000 to your employer and it recovered $90,000 from the ATO that was used to pay a tax liability of a business you and your wife operated entitled, somewhat ironically, Small Dreams Pty Limited.  The sum of $155,561.76 remains owing to your employer and you do not oppose the making of a compensation order in that sum. 

10I now turn to your personal circumstances.  You were born on 11 August 1979 in Germany and are now aged 35 years.  You migrated to Australia with your family in 1984 and thereafter resided in Melbourne's south-east.  You were educated at McKinnon High School and Murrumbeena Secondary Collage, where you completed Year 12.  After one year of an accounting course at RMIT, you deferred before resuming a Bachelor of Business at Griffith University on the Gold Coast in 2003.  There, you met your wife Natasha and you now have two young children with her. 

11You commenced employment with Martin and Pleasance in 2008.  In 2009 you and your wife purchased a small business in Northcote and in 2011 you began the development of a property you had purchased on the Gold Coast in 2004.  You were over-extended financially and this coincided with the birth of your first child.  Instead of selling assets or taking appropriate steps to reduce your debt, you began to steal from your employer. 

12I have received in evidence a report of Mr Patrick Newton, a consulting forensic psychologist, detailing your developmental history and psychological profile.  I have also received in evidence a report of Mr Adrian Barker, a counsellor you have consulted regularly since your offending.  In my opinion, your offending must be considered in the context of an undiagnosed depressive condition that you have suffered from, since your late teenage years.  You have abused alcohol and illegal drugs of dependence and have experienced bouts of depression for which you have received no treatment.  You have poor judgment and coping skills.  You require ongoing treatment and counselling for your condition.

13Since your offending was discovered, you have relocated to Northern New South Wales to reside near your wife's family.  You will not be able to be employed in the future in financial administration or like industries, nor will you be able to be employed in any significant position of trust.  You have brought enormous shame to yourself and your family.  I accept, however, that you are genuinely remorseful for your offending and that you will repay the money still owing to your employer when you are able to do so.  I accept that your prospects for rehabilitation are good, but, as I have said, you require ongoing treatment and support for your depressive condition which is compounded by alcohol and drug use. 

14During the course of the plea in mitigation, your counsel conceded that imprisonment was the appropriate proportionate penalty in your case.  Having regard to the factors in mitigation and factors personal to you that I have referred to, I have concluded that a shorter than usual non-parole period ought to be fixed in your case. 

15Would you stand up please. 

16In the result, the sentence of the court is as follows:  on the four charges of theft, you are convicted and sentenced to an aggregate term of imprisonment of two years. 

17I order that you serve 12 months before becoming eligible for release on parole.  

18But for your plea of guilty, I would have sentenced you to a total effective term of imprisonment of three years and imposed a non-parole period of two years.

19I have made the compensation order sought by the prosecution. I am not satisfied that the circumstances of your offending or the interests of justice warrant me making the order sought pursuant to s.464ZF of the Crimes Act 1958. 

20Are there any further orders required?

21MR NIBBS:  No, Your Honour.

22HIS HONOUR:  Thank you.  Mr Engel, you will be eligible for release on parole in 12 months from today's date.  You will then be on parole for a further 12 months. 

23We will adjourn now until 10.30 tomorrow.

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