Director of Public Prosecutions v Fusea

[2016] VCC 1708

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

AT WARRNAMBOOL
CRIMINAL JURISDICTION

CR 16-01267

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAMIAN JOHN FUSEA

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Warrnambool
DATE OF HEARING:
DATE OF SENTENCE:	16 November 2016
CASE MAY BE CITED AS:	DPP v Fusea
MEDIUM NEUTRAL CITATION:	[2016] VCC 1708

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Hassan	Office of Public Prosecutions
For the Accused	Mr J. Westmore	VLA

HIS HONOUR:

1Damian John Fusea, you have pleaded guilty to four charges of theft.  That crime carries a maximum penalty of ten years' imprisonment.  You are 39 years of age, you made full admissions, and indeed, confessed to the offending, and your plea of guilty was made at the earliest reasonable opportunity, and I accept it is accompanied by remorse.  You must also, of course, get the utilitarian benefit of that plea of guilty. 

2The fact that the offending was brought to the notice of authorities by yourself is a significant mitigating factor.  I have discussed these matters with counsel, obviously, during the course of the plea, and it seems to me that ultimately it would have been discovered, but you clearly must receive the benefit of that.

3You have no prior convictions or findings of guilt, and you have no matters pending. 

4Of real significance in your situation is that there was a delay of some two years of the matter coming to the attention of police and you actually being interviewed.  That delay clearly was not of your making, and I accept that you would have spent that period of time not knowing what was going to occur.  I take that very much into account.

5In fraud situations, there is often a delay because of the nature of the investigations that have to take place.  That is not the case here, there is no explanation attributable to you, insofar as that is concerned.

6Firstly, pursuant to s.464ZF of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.  That order having been made, I must advise you that should you refuse to provide such a sample, and it will be saliva only, police may use reasonable force to take it from you.  That order is made and handed down.

7Further, a restitution order is hereby made in the sum of $169,613.91.  And that order is also made and handed down.  Your counsel has put that that is a mitigating factor that you have consented to that order, but to the contrary I notice that in spite of it now being some three or four years, as I understand it, there has been no recompense made.  But I do take it into account.

8A summary of the offending is contained, obviously, within the Crown opening, and can be described quite briefly.

9You were employed by the Southern Ocean Group in the position of a manager of the Southern Ocean Villas and Southern Ocean Motor Inn, which are accommodation providers in Port Campbell.  You, in the position that you held, were responsible for all aspects of the day-to-day management of the properties, including full access to the National Australia Bank business cheque account, and the Visa credit card account. 

10It seems clear that there was very little, if any, checking up on what you were doing.  You were clearly in a position of real trust, and responsible for significant amounts of money, and significant properties.

11In simple terms, with Charge 1 of theft, on 83 occasions you wrote cheques made payable either to your own name, or to cash.  Of those, a number were made with false payee details on the cheque books, some no payee details were recorded at all, and some cheques were just simply cashed.  Some were put into personal bank accounts, and again with others, false payee details were placed on the - some 28 cheques were, in one situation - and cashed at the local bank in the sum of some $30,820, and the money was retained for your own use.  The total of all that was $126,900.  That is a lot of money, and it went on over a period of some years.

12Charge 2 of theft relates to $7,000 from a Visa credit card.  Charge 3 of theft, again, credit card, some $25,944.  And Charge 4 of theft, National Australia Bank cheque account, managing some amount in in the sum of $9,500.

13In July of 2013, you made admissions to a work colleague as to what you had done, and police were then involved, and the matter, at least theoretically, proceeded from there.  You were not interviewed until 3 June 2015, were you made full admissions.

14The offending went on over a significant period of time, there were multiple acts of dishonesty.  It is in a situation where basically you were paid to be trusts, and you were put in a, in my view, was an employer-important position of trust.  The offending can only be described as persistent.

15I do, and have now gone through the schedules, realise that probably at no stage was that actual taking of money involved that amounted to more than $3,000.  But in terms of it being unsophisticated, it is my view in the ultimate that it did not need to be sophisticated.  For reasons I do not understand, there seemed to be no checking on what you were doing.  I do not understand how accountants did not pick this up.  I do note that a lot of the cheques that were clearly false were made out for odd amounts, which would appear normal.  And as I say, you would have been aware - like I said yesterday, you would have been aware that no checks were taking place.

16The amount of money, it was put to me by your counsel, as the lower end for this jurisdiction.  That is a legal concept, a man in the street realising he had just stolen $170,000 from an employer, in my view, would regard that as a lot of money. 

17Clearly the authorities in respect to this indicate that gaol sentences are very common, often when the amounts involved are much higher than this, and I do take that into account.  It is my view in the end that, bearing in mind the provisions of the Sentencing Act insofar as CCOs are concerned, that no disposition would be satisfactory unless it involved an element of active custodial imprisonment.

18You have put a number of matters through your counsel before me, and I clearly take those into account, and I will go through them now.  Before I do that, I simply point out that I have taken into account the victim impact statement, and what were the ultimate consequences insofar as that company were concerned.  It is difficult for me in this situation to make a proper assessment on what sort of financial difficulty the company was in, or how you contributed to that financial difficulty, if you even did.  It seems to me that very little supervision, and I just do not understand what has gone in the background, but in any event, you just simply cannot steal from an employer, and you certainly cannot steal from an employer to that extent.

19I have had you assessed for a community corrections order, and you are found to be acceptable and a low risk of reoffending.  A discussion with your counsel yesterday as to whether it should be a prison term with a non-parole period or a shorter, in effect, prison term with a community corrections order with a punitive aspect, it is the latter that I have determined is appropriate.  I am clearly aware of the decision of Boulton, and certainly aware of the provisions of s.5(4)(c) of the Sentencing Act.  I now look at matters personal to you in determining how long the actual custodial component should be.

20Reports were tendered from Dr Carroll, a psychologist, and from Mr David Ball, a psychologist.  Your history can be described in fairly simple terms.  You, I accept from what your counsel tells me, are somewhat of an isolate.  In the situation at Port Campbell, you were living well there, you were certainly not in any financial difficulty as a result of your employment.  You were receiving a salary, and it appears accommodation, food and the like.  You got to 35, effectively, with no offending.  I am told that your grandmother passed away in 2008, and it was in that period of time on you became distressed.  You became depressed, and gambling to a large extent took over your life.

21In that isolated situation of alcohol and gambling, this offending started and continued for an ordinate period of time.  A gambling addiction, which I accept you have, does not mitigate this sort of offending.  It has nothing to do with the principles of Verdins, it just simply explains or puts into context why offending of this nature might occur. 

22What you have done since, and I am taking into account, obviously, all the matters that are within the reports of Dr Carroll and Mr Ball, what you have done since is highly laudable.  You have clearly cooperated with police, you have pleaded guilty at the earliest reasonable opportunity, and you have done what you can to rehabilitate yourself. 

23Mr Carroll says you have major depression, anxiety, and endeavoured with you to put into effect programs to achieve your ultimate rehabilitation. 

24You have seen him over two separate periods of time on some 24 occasions.  I accept that your attempts to reorganise and restructure your life have been genuine.  For somebody to go through that sort of process over such a period of time, in my view, in my experience, is certainly unusual.

25Mr Ball goes through your background again, and I do not need to go through all that again.  He sees your offending in the context of pathological gambling, social isolation and alcohol abuse, and I have no reason to doubt any of that.  You have put into effect the potential for your rehabilitation.  If you can continue with that attitude, the prospects of your ultimate rehabilitation should be good, and with some concern I accept the assessment that the risk of you reoffending should be low.

26Taking all those matters into account on your behalf, as well as the other very helpful submissions that were put to me by counsel, there still must be a custodial disposition.  These are often difficult to determine, but general deterrence in a situation such as this, allowing for the fact that specific deterrence may not mean that much, as well as community denunciation, are important sentencing factors.

27What I am going to do is sentence you to a period of imprisonment which reflects the seriousness of what you did without, in my view, being a crushing sentence.

28It will be followed, if you agree, by a community corrections order of 18 months with conviction, with 100 hours of community work.  That 100 hours will be able to be served by you by programs, and the only other condition will be that you undergo programs to reduce reoffending.  That means you are in a situation where you do have assistance if you require it, and the punitive aspects of it are obvious.

29Insofar as the active custodial sentence is concerned, as I said, it has to be one which reflects the seriousness of what you did as a breach of trust, and accordingly on the four charges of theft, you are sentenced to be imprisoned for an aggregate period of six months.

30The CCO, if you agree to it, will commence within two days of your release.

31(At this stage the court proceeded with another matter.)

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