Director of Public Prosecutions v Gilbert

[2014] VCC 1236

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00711

DIRECTOR OF PUBLIC PROSECUTIONS

v

BARRY GILBERT

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	6 August 2014
CASE MAY BE CITED AS:	DPP v Gilbert
MEDIUM NEUTRAL CITATION:	[2014] VCC 1236

REASONS FOR SENTENCE
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Subject: obtaining financial advantage by deception- breach of trust- plea- no priors-good prospects of rehabilitation-delay- no real loss.
Catchwords:
Legislation Cited:
Cases Cited:
Sentence: 12 months imprisonment wholly suspended for 12 months.

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms J. Malobabic
For the Offender	Mr M. Gleeson

HIS HONOUR: 

1Barry Scott Gilbert, you have pleaded guilty to one charge of obtaining financial advantage by deception.  The offence was committed between 1 March 2011 and 31 March 2011.  At the time you were employed by Asia Pacific Holdings as an equity manager and had been so employed since 2007.  One of your duties was to administer and manage an executive performance plan under which executives were granted rights to acquire shares.

2On 30 March 2011, Asia Pacific Holdings, known as AXA, merged with the AMP and the executive preference performance plan was cancelled.  Thereafter, employees were entitled to cash payments.

3During the charge period, essentially the month of March 2011, you purposefully failed to update the register of entitlements of rights holders.  This caused the payment to be made in favour of a Hong Kong resident in the amount of $136,423.  That person was a former employee of AXA who held rights under the previous arrangement  but had resigned in 2006 and was no longer entitled , in fact , to any cash consideration by the time of the merger on 30 March 2011.  You had also altered the bank details of the former employee in order to cause the payment to go to a bank account held by you.

4Earlier in February 2011, information had been gathered by you about the former employee , from a share registry which held relevant information and managed AXA's employee share scheme.  In early March, you then forwarded an email to the share registry, purporting to be from the former employee, requesting a change to her email address and later the relevant residential address was also changed.  The share registry sent notices to the old address as a matter of practice and was notified that no such change was authorised, given their employment had ceased in 2006.

5On 31 March, payment of a sum was submitted for processing to your bank account.  On the very same day, investigators from the share registry discovered that the nominated banking details of the former employee matched yours.  AXA was notified of the unauthorised transfer.  On 4 April, you were told that the payment was being investigated.  You were interviewed by AXA investigators and made full admissions.

6On that same day, you were dismissed from your work at AXA.  The payment was reversed on 11 April and therefore effectively no financial loss was suffered, although by that time you had transferred some funds for your benefit.

7By the end of April, Victoria Police had been notified but by that time you were living in Western Australia and efforts to locate you were initially not successful.  Officers from the Victoria Police interviewed you on 20 June 2012 and during that interview you told them of your efforts to clarify the situation of the former employee and to locate her in order to do so.  You admitted that her alleged entitlements were paid electronically into your account and you indicated that you transferred $100,000 into your mortgage account but had not spent any other money.

8You did not provide a reason for your offending but acknowledged its dishonesty.  You expressed regret and remorse.  You attributed this behaviour to stress, though denied any financial need or gambling vice or otherwise.  Thereafter, a further period of time elapsed before you were charged in December 2013.

9You have pleaded guilty and did so at the earliest available opportunity.  That is, at the filing hearing and committal mention in late April 2014.  Your plea, I accept, has utilitarian value in that it has saved the community a criminal trial and its costs.  It is further accompanied by remorse.  Such a plea will enliven a discount on your sentence, which will be quantified.

10Obtaining financial advantage by deception carries a ten year incarceration maximum.  By this penalty, the Parliament has clearly indicated its gravity as a criminal offence.  Such offending carries significant disruption in the commerce arrangements in the community and it undermines the trust and honesty upon which such systems depend.  Such offending is not only dishonest at its core, but as in this case represents a fundamental breach of trust which I take into account and which goes to undermines the orderly functioning of economic relationships and systems which lie at the heart of the financial structures of our community.  Such offending requires denouncement and the pursuit of general deterrence in order to deter likeminded persons from such conduct.

11Of course in the context of your sentence, I take into account your personal circumstances, which I will outline in a moment. I also take into account the need for appropriate punishment, specific deterrence and prospects of rehabilitation.  I have already noted your early admissions, your early plea and your remorse.  You are a person of previous good character without a previous criminal record and nothing pending in the courts.  I take this good character into account.  It is augmented by a good employment record and current employment.

12References were received by the court attesting to your good character from Mr Cameron, Mr Jolley and Mr McCord, who wrote of your reliability, conscientiousness , generosity and commitment to work.  Clearly these were general references not addressed to the court for the purposes of your sentence and it was explained that you had not disclosed the offending to these persons because of shame and because the passage of time had rendered even more difficult such disclosure.  In this sense, these references are not a proper attestation in view of your criminality, but although qualified in this sense, I do take them into account.

13In terms of your work history, you have an associate diploma of accounting and from 1995 to 2011 you had employment in this field.  You were well regarded, you appeared to have a future in the industry and you were earning a reasonably good salary.  This offending means the end of your career until now and perhaps into the future.

14Since 2013, you have been employed in Western Australia by Advanced Traffic Management (ATM).  You drive an attenuator, amongst other duties.  I received a reference from a manager at ATM who has written of your eagerness and enthusiasm.  You work on a casual basis from 30 to 80 hours per week.  It was highlighted that you are progressing to further advance by way of qualifications.

15You also work casually in mines in Western Australia.  Your finances are said to be unexceptional and your savings modest, with a residential loan of $350,000 in a Perth property you share with others.  You are privately represented here and earn about $35,000 gross from ATM.

16I was also informed that between March and August of 2011, immediately following upon this offence, you volunteered for St Mary's House, a St Vincent de Paul property in Melbourne which provides meals for disadvantaged clients.  You assisted in food preparation, you helped serve meals and assisted with day excursions.  This short stint of community service is to your credit and I take it into account as a demonstration of your remorse and positive prospects for reclamation and rehabilitation.  You had undertaken this kind of voluntary work through your employment with AGL and at AXA between 1995 and 2011.  Your return to such work after your dismissal is penitential in nature, in my view.

17These good prospects are in my view suggested by the impact of the offending on you which has been punctuated by remorse demonstrated over time.  You admitted candidly the dishonesty of your actions and the offending has also caused physical impact upon you.  You have injured your elbow in April 2011 due to sleeplessness and restlessness in sleep and your regret and stress caused, rightly, gnashing and grinding of teeth which caused pain and required treatment.  These physical matters coincided with the end period of your offending.  And can be taken ,  as they are , into account as demonstrating an awareness of your wrongdoing.  Reports pertaining to each of these matters were tendered to the court.

18It was submitted that the offences have in effect been a daily thought and preoccupation for you.  You made, properly, full admissions immediately to the company.  The delay which has occurred in these circumstances I do take into account.  I don't find that a three year delay is longer than usual in these type of investigations.  There appears to be however a reasonably long delay between the interview of June 2012 and a charge of 2013 in December.  These type of offences are often difficult to investigate, however here I would have thought the laying of the charge could have reasonably come at an earlier time given your admissions.

19However, the delay between the offending and the police interview is in a sense due to your move to Western Australia.  Once it was discovered that you were there, you were contacted by email and promptly interviewed.  After your volunteering until August 2011, you finalised your affairs in Melbourne and made a slow trek across Western Australia over a four month period.  It took another year to locate you to interview you.  I accept the submission which was made on your behalf that you found it difficult to commit to full time employment and in effect to get on with your life.

20You are now 40 years old and you could only provide an explanation for your offending that at the time you were working long hours, you were stressed, tired and exhausted.  There is little doubt that there was a level of sophistication in your offending and it could not be called spontaneous, although linking your own details to the transaction was not only naïve but foolish.

21The offences are a breach of trust and the quantity obtained was not unsubstantial, although lower than most of the sums with which this court usually deals with.  The criminality was not spontaneous or of short duration, although it extended to one transaction over three weeks.  It is clear that you may not probably be able again to work in the financial industry.

22A psychologist's report was tendered, but not for the purposes of any Verdins submissions.  Mr Tim Watson-Munro, consultant forensic psychologist provided a report dated 8 July 2014.  There was no indicators of any psychopathology and your prognosis for a clinical perspective was positive.

23You have not had dealings with drugs and you are abstinent from alcohol.  You are not depressed, although your predicament has caused anxiety.  You expressed remorse to him and he expressed your prospects for the future as positive, particularly if aided by some cognitive behaviour therapy to deal with your sense of guilt.

24I note that you have an unremarkable background.  You were raised in New South Wales.  Your parents divorced when you were 12.  They re-partnered and you remain in contact with them.  You completed your HSC with average results.  You completed an accounting course whilst living on the central coast with your mother and undertook further tertiary studies successfully before obtaining work, which I already outlined.

25I note also you have never married and have no children.  You told the psychologist that you are not involved in any relationships at the present because you feel your life has been on hold for the last three years.  I accept that the impact of the offence committed by you appears to have changed your life course radically.  You are unlikely to work in an industry for which you spent a considerable period of your working life and for which you gained qualifications, and this is a form of extra curial punishment consequential on your criminality which I take into account.

26Having recited all of the relevant considerations, considering that general deterrence is the most significant sentencing factor, I am of the view that a conviction should be recorded, and this offending requires imprisonment to demonstrate the seriousness of the offence.  I have considered current sentencing practices, as well as the sentencing snapshot which was made available to the court and consider that the period should be wholly suspended.

27On the count of obtaining financial advantage by deception, you are convicted and sentenced to 12 months imprisonment, which is wholly suspended for 12 months.

28I have considered the application for forensic samples and consider that in my discretion I should not make such an order for a white-collar crime involving a person without prior convictions and in all the circumstances.  But for your plea, I would have sentenced you to 12 months imprisonment.  Are there any other orders that I need to make?

29MS MALOBABIC:  No, Your Honour.

30HIS HONOUR:  Thank you.

31MR GLEESON:  Thank you, Your Honour.

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