Director of Public Prosecutions v Garcia

[2017] VCC 1723

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-01910

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARISSA GARCIA

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	9 November 2017
DATE OF SENTENCE:	9 November 2017
CASE MAY BE CITED AS:	DPP v Garcia
MEDIUM NEUTRAL CITATION:	[2017] VCC 1723

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Devlin	Office of Public Prosecutions
For the Accused	Mr J. Stavris	Anthony’s Solicitors

Pages 1 - 13

 

 

HER HONOUR:

1Ms Garcia, I am about to sentence you, you can remain seated whilst I deliver my reasons.  I will ask you to stand at the end when I formally pass sentence on you.

2Marissa Garcia, you have pleaded guilty to one charge of theft and one of obtaining property by deception.  The theft charge is a rolled up charge which involves the theft of a total amount of $58,286. 

3The amounts were stolen over a period of four and a half years between 21 April 2009 and 26 December 2013.  During that time you were living with and in a relationship with the victim Mr Sensi.  He was running his own business.  You were working as a personal care assistant in aged care.  Although the two of you co-habited, each of you was in receipt of independent income from your employment and from the running of his business.

4You would from time to time assist Mr Sensi in the running of his business and a habit had developed between the two of you where he would give you signed blank cheques.  You would then either obtain cash to pay business bills or to pay for business-related expenses. 

5On multiple occasions you wrote an amount on the cheque stub that related to a business expense, often able to be backed up by a particular invoice or receipt but the cheque itself would be written for a greater amount.  You did so and you then used the whole or the excess of the amount over and above the bill that you were paying for your own purposes. 

6By your plea of guilty you acknowledge that you were taking money to which you were not entitled and Mr Sensi was clearly deceived.  He, as the materials reveal, including the materials that were provided from your character witnesses on your behalf on the plea, was clearly a poor bookkeeper and not good generally at keeping records in relation to his business.  The fact that it took four and-a-half years for the thefts to be unearthed is in a sense – and this is no fault of his or I am not suggesting that he is in any way responsible for the thefts – attributable to the fact that he was such a poor book keeper, record keeper and poor at the administration of his own business affairs.

7You, it would appear, by the materials filed on your behalf on the plea, were aware of that and exploited that in order to commit the thefts.

8On some occasions, rather than increasing the amount of a cheque beyond the amount of bill that was to be paid, you would simply write a cheque payable to your own name, bank it into your own account or use it to pay off your own credit card debt. Again, you would put a different amount on the cheque stub to the amount that was actually withdrawn.

9One of the indicators of the poor bookkeeping and accounting methods of Mr Sensi was that it would appear that he produced spreadsheets for the purpose of his business activity statements and his tax returns based on his cheque stubs and receipts.  He did not reconcile the cheque stubs with the withdrawals from the bank account. That is in part why it took so long for these matters to come to light. 

10As a result of Mr Sensi discovering on 26 September 2013 that an amount $1,000 more than the amount of a cheque he had thought he had signed for payment of a bill had actually been cashed at the bank by you, he went back, did a reconciliation of his accounts and made a report to the police.  He confronted you about that one cheque and you told him that you had borrowed the money and would repay it to him. 

11The relationship between the two of you came to an end there and then and it was only later that he went back and discovered how much more was missing. 

12In the course of that investigation, a conversation with his mother revealed that during this offending period on 19 December 2011 you went to his mother's home.  She was then a woman of about 80.  You told her that he needed, that is Mr Sensi needed, money to pay bills and asked her to withdraw $5,000 from her bank in order to advance to Mr Sensi for payment of his bills.  She trusted you, she believed you and went to the bank with her, you took her to the bank, she withdrew the $5,000 cash and gave it to you.  You pocketed the money and did not provide it to Mr Sensi.  There is no evidence to suggest that he had asked you to get money from his mother or that he needed it to pay bills.

13It is that conduct that gives rise to Charge 2, a charge of obtaining property by deception relating to that single transaction of $5,000. 

14You were interviewed by the police within weeks of the initial discovery by Mr Sensi of the withdrawal of the $1,000 on 26 of September 2013 to which you were not entitled.

15You denied the offending.  You told the police that you repaid Mr Sensi the money that you had taken and that was a reference to the $1,000, the subject of that final cheque.  You told the police that that the $1,000 was a loan, that Mr Sensi had a gambling problem and often borrowed money from you.

16You said or asserted that you had permission to withdraw all of the excess amounts of money over and above what was recorded on the cheque butts.  You could not provide an explanation to the police as to why the amounts written on the cheque stubs were different form the cheques that were actually written out and drawn down.  You said you could only remember one specific cheque, that being the last one, the one that gave you the $1,000 and denied stealing any money at all from Mr Sensi.

17It was 12 months later that the police called you in for a second interview and that related to what became Charge 2.  They asked you about the $5,000 that you had asked Ms Sensi to withdraw from her bank account to give to her son and you maintained the version that you had given Mr Sensi's mother.  Namely that Mr Sensi had asked you to obtain the $5,000 from his mother and to pay bills.  You said that you had given the money to Mr Sensi and you denied deceiving Mr Sensi's mother into giving you the money.

18Although the offending first came to light on the 26 September 2013 and within days of that Mr Sensi had made his first report to the police and within weeks of that made his first statement to the police and only a short time after that the first interview with you was conducted, it wasn’t until 12 months later that you were charged.  That was shortly after the second interview in relation to the $5,000. 

19It has taken three years since then for the matter to come to finality in this court before me.  There was a contested committal that ran over three separate days between May and October of 2015.

20The trial was listed initially for about 11 months after that, for October 2016.  Shortly before that trial was due to start the defence subpoenaed Mr Sensi's computer in order to access his computer records and indicated that it wished to obtain forensic examination of the computer and a forensic accountant's report.  That led to the vacating of the trial date.  Because it was indicated everything was in issue, and you had been charged with separate thefts in relation to each separate cheque that was asserted, that had been falsely diverted by you in whole or in part to your own benefit, you faced over 80 charges.  That meant it was going to be a lengthy trial and the vacating of that first trial date meant that you could not be given another trial date for another 11 months.

21Shortly before that second trial date the defence served an expert report.  The late service of that, and its content was in part the reason why the trial was not reached.  The trial date vacated for the second time. 

22On this occasion a further trial date was able to be found only two months later.  And so it was that the matter was finally listed for hearing on 22 October. 

23In fact, the first pre-trial argument did not commence before me until 24 October.  As a result of discussions I had with both prosecution and defence as to the way the case was to be put, and what the defence actually was, that led to some meaningful discussions between prosecution and defence, and the matter resolved.

24As a result, instead of facing 80 odd separate charges of theft, relating to each cheque, and where a quantum of something in excess of $150,000 was alleged to have been stolen, the matter resolved on the acknowledgement by you of theft of $58,286.  That was put into a single rolled up charge.  The acknowledgment by you in relation to the single act with Mr Sensi's mother led to the second charge, the single sum of $5,000.

25These are serious offences.  There is clearly a significant breach of trust.   You were in a relationship with Mr Sensi and whilst each of you has clearly very different accounts of the nature of the relationship, the nature of the way that you got on or did not get on, it is clear that a partner should not be stealing from their partner and that is what you did. He trusted you to do transactions on his behalf and you held out that you were capable of being trusted to do that.  A four and a half year deception of stealing money from your partner is indeed, no matter what else may have been going on in the relationship and I make no findings as to that, is a breach of trust that deserves serious condemnation and denunciation.

26It is clear therefore that subject to considerations personal to you, denunciation, just punishment and deterrence must play a role in the sentencing process.

27Mr Sensi has provided a victim impact statement which sets out the impact on him of discovering the person who he was in a relationship with had deceived him and of the impact, the financial impact that has had on him because of the depletion of his income, his resources and the inability therefore to continue to be able to provide the cash flow to fund his business.  So, at the age of 58 he is left in a position where he feels he has lost much of what he has worked for over the years in his business.

28What then are the matters that are personal to you that counter-balance that?  You are aged 43.  You have no previous convictions and up until recently, sometime shortly before the matter finally came on for trial, you had had a good work history both here in Australia and back in the Philippines before you arrived here, took up residence and ultimately citizenship. 

29You have good family support here from your mother, your sister, your son and your extended family.  You had had good connections with those of your family who remained in the Philippines and until you were charged and released on bail you were free to travel between here and the Philippines to visit family members when you wished to and did so. 

30You suffer from no mental illness, you have no psychological condition, no intellectual disability or problems with substance abuse which have blighted your past or which are likely to interfere with your capacity to work and lead an honourable life in the future should you choose to do so.  There is nothing, in other words, that would interfere with your rehabilitation by reason of any of those factors that so often blight the lives of people who come before this court.

31I also take into account that a four year delay before the making of the initial complaint to the police and the first record of interview and in that I take into account first the 12 month delay between that initial interview and your being charged. It must have been clear from the time of that interview that you were under investigation and likely to be charged.  Having the matter hanging unresolved over your head for that 12 months without charges actually being laid, I accept, is a burden.

32I also take into account that in the three years since you were charged and until the matter resolved there has been no subsequent offending, there are no pending charges and you have been compliant with all of your bail conditions.

33Although I consider much of the delay in the three years since the charges were laid and before the entry of your guilty pleas are due to the conduct of you and your legal advisers in raising new matters shortly before each listed hearing date nonetheless three years is a considerable time to have matters hanging unresolved over your head and I give that some weight.

34I also take into account the fact that you pleaded guilty.  Although your plea of guilty was a very late one and not until the time the trial, the pre-trial argument was actually being conducted, it is a plea of guilty to a rolled up charge rather than individual charges and for a significantly reduced amount of money compared to that which was itemised in the original charges. 

35However, although this is a single rolled up charge for a lesser quantum, it would appear that there had been no attempt to resolve the matter earlier by an admission that there had been thefts but by attempts to negotiate the matters to reduce the quantum to those amounts which were ultimately admitted by you up until the time of the trial or the pre-trial argument before me commenced. It had been made clear at mentions and, indeed, initially before me, that there was a full contest on the facts in respect of every charge, that nothing was admitted.

36Your pleas of guilty nonetheless have significant utilitarian benefit.  The trial would have been lengthy, complex and costly.  So you are entitled to the utilitarian benefit in advancing of the interests of justice of the plea. However, it is clearly not a plea at the first opportunity or the earliest reasonable opportunity and I do not consider the plea of itself or in combination with other matters indicates remorse. 

37In fact, on the materials filed before me there was no reference at all to an acknowledgement of the offending.  Both the written outline of plea submissions and the supporting material, the psychological report and the testimonials all indicated to me that they were portraying you as the victim of an emotionally abusive relationship.  I was concerned, as I indicated at the start of the plea, that the materials came perilously close to asserting a claim of right defencem something that would have traversed your plea of guilty.  However, that was specifically disavowed by Mr Stavris at the start of the plea submissions where he said that you accepted that your actions were wrong and that you could not account for your behaviour.  You do acknowledge indeed that this was a theft of that amount over that period.

38Notwithstanding what I have said about the breach of trust, the seriousness of the offending, the concerns about the extended period over which it occurred and the absence of evidence of remorse, I do not consider this is a matter where it is necessary or appropriate in order to  serve the sentencing needs that the Sentencing Act 1991 (Vic) identifies and that I have just identified to impose a term of imprisonment. I consider it sufficient punishment, sufficient denunciation and sufficient warning to others who might consider doing the same thing that you did that, at the age of 43, for the first time you will have criminal convictions for dishonesty recorded against your name, and that you be sentenced to a community correction order with a significant punitive element to it.

39I propose to direct that you undertake a significant amount of unpaid community work.  You are clearly capable of working and have had a good working history in the past.  There should be no physical, emotional, psychological or psychiatric impediment to your being able to fulfil those hours of unpaid community work. 

40Perhaps giving back to the community may make you think each time you must go to Corrections to perform your unpaid community work of the wrongness of your actions.  And give you a chance to show by your conduct that you are prepared to be accountable for it by undertaking this unpaid community work.

41I also propose to direct that you be under supervision for the period of the community correction order.  You have been assessed as being a medium risk of re-offending despite having had no previous convictions up to this age and that is no doubt because of the protracted nature of the offending and the deception involved in the repeated use of cheques made out for amounts other than that which you knew you were entitled to make them out for and to divert to your benefit. 

42I am also proposing to make the two compensation orders sought.  They are clearly appropriate in the circumstances having regard to your pleas of guilty and the nature of the theft and the deception involved.  I have given consideration to whether I should make a forensic sample order.  You have your age and previous good history counting in your favour.  On the other hand, the level of deception involved in this, the repeated nature of it and the fact that this was, until the last minute a contested matter all lead me to decide that the seriousness of the matter justifies the making of a forensic sample order.

43I am going to direct that that forensic sample be taken by way of a buccal swab,  that is a mouth swab.  You are required to rob something like a cotton bud on the inside of your mouth until a sufficient sample has been obtained.  I must warn you that if you do not attend at the time you are required to do so to provide that sample and you do not co-operate in the provision of it then the police are, authorised to use reasonable force and may well use the more invasive means of doing that, namely the taking of a blood sample; do you understand that?

44OFFENDER:  Yes, Your Honour.

45HER HONOUR:  There is a complicated time frame for when you must attend to provide that forensic sample.  You must let 28 days run from today before you can attend at the police station and then you must go to the police station within 28 days of that.  So, let a month run and then in the second month you must go to the police station and provide the forensic sample; do you understand that?  That is written on the order and no doubt your lawyers will explain that to you also. 

46All right, could you now please stand?  Marissa Garcia, on the two charges, one of theft and one of obtaining property by deception to which you have pleaded guilty you are convicted.  You are placed on a community corrections order for a period of two years commencing today, 9 November 2017 and ending on 8 November 2019.

47There are mandatory conditions that apply to all community correction orders and they are these:   you must not commit another offence for which you could be imprisoned during the time that the order is in force.  You must comply with any obligation or requirement prescribed by Regulation 17 of the sentencing regulations 2011.  That means you must not be impaired by drugs or alcohol when you attend at corrections for any of your required visits and when you attend at Corrections for any of your required visits and you must submit to drug or alcohol testing if directed to do so.

48You must report to and receive visits from the secretary or delegate.  You must report to the Box Hill Community Correctional Services at 703 Station Street, Box Hill within two clear working days after the commencement of this order.  Today is Thursday, that means by Monday of next week. 

49You must not leave Victoria without first getting permission to do so from the Secretary or delegate.  You must let a community corrections officer know within two clear working days if you change your address or your job and you must obey all lawful instructions from and directions of the Secretary or delegate.  The additional conditions that I impose are first that you must perform 300 hours of unpaid community work over the two year period as directed by the regional manager.

50If you fail to comply with the unpaid community work order or any part of it, the Secretary to the Department of Justice or their delegate may give you a direction to perform additional hours of unpaid community work in accordance with s.83 AU of the Sentencing Act 1991 (Vic). You must be under the supervision of a community corrections officer for the two year period of the order. Do you understand the effect and the conditions of the order?

51OFFENDER:  Yes, Your Honour.

52HER HONOUR:  And do you consent to it being made?

53OFFENDER:  No, Your Honour.

54HER HONOUR:  You do not consent to it being made?

55OFFENDER:  Oh - yes, Your Honour. 

56HER HONOUR:  You do consent to it being made.  All right, I will have that, I will ask Mr Stavris to take that down to you.  Check those conditions make sure you understand them and then sign it please as an indication that you do.  It does not seem to have come through.  The 464ZF.

57MR DEVLIN:  I am just enquiring about that.  It is on its - it has been done.  I just cannot give you an ETA at this point of time, Your Honour.

58HER HONOUR:  All right, can you tell me what the police station is?

59MR DEVLIN:  Doncaster, Your Honour.

60HER HONOUR:  And it is 28 days, 28 days is it?

61MR DEVLIN:  Yes.

62HER HONOUR:  All right, Ms Garcia.  I have countersigned that community correction order.  I have also made and signed the compensation orders, $5,000 to Edelma Sensi and $58,286 to Robert Sensi. 

63I have indicated I am going to make the forensic sample order.  I do not actually have the, the order in front of me but that, I will make that in chambers.  You must attend at the Doncaster Police Station between the hours of 9 am and 6 pm for the provision of the sample.

64MR DEVLIN:  Yes, Your Honour, a 24 hour station.

65HER HONOUR:  I think under the order it is normally between 9 am and 6 pm; is it?  For the provision of a forensic sample?  All right, you must attend between the hours of 9 am and 6 pm, you must let 28 days expire from today before you go in and then you must go within 28 days of that period.  Mr Starvis will explain that to you and tell you what's the first day and what's the last day by which you must attend.  It will be somewhere in early December that you must attend.  The first day that you must attend and somewhere in early January that will be the last date by which you must do that; do you understand that?

66OFFENDER:  Yes, Your Honour.

67HER HONOUR:  Thank you.  All right, any further orders required to be made?

68MR DEVLIN:  And was the order in relation to release of the computer?

69HER HONOUR:  Sorry, and I direct that the computer produced pursuant to subpoena be released and returned to Robert Sensi.

70MR DEVLIN:  Yes, Your Honour.  Thank you, Your Honour.

71HER HONOUR:  Yes, thank you.  That is it?

72MR DEVLIN:  Thank you, Your Honour.

73HER HONOUR:  All right, once a copy of that CCO has been made by my associate and provided to you Mrs Garcia, you will be free to leave the court.  Thank you.  We will adjourn.

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