Director of Public Prosecutions v Gild

[2017] VCC 1586

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-00883

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL GILD

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JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Melbourne
DATE OF HEARING:	18 – 30 October 2017
DATE OF SENTENCE:	3 November 2017
CASE MAY BE CITED AS:	DPP v Gild
MEDIUM NEUTRAL CITATION:	[2017] VCC 1586

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Guesdon
For the Accused	Mr P. Kounas

HIS HONOUR:

1Michael Gild, you have been convicted by a jury of 52 charges of theft.  Each of those charges has a maximum penalty of ten years' imprisonment. 

2In 2011 you were then 71 years of age.  You were a qualified pharmacist and employed by Geoffrey and Sue Szwarcbard in their pharmacy located in Glenhuntly Road, Elsternwick. 

3On 22 December 2011 Mr Szwarcbard overheard a customer complain that you had not given her her change.  He decided to review the CCTV footage generated by the pharmacy security cameras.  He observed you to take $80 and place it in your pocket.  The following day he observed you put $50 in your pocket.  He challenged you and called upon you to empty your pockets and you placed the $50 note on the table claiming it was yours.  When Mr Szwarcbard showed you the CCTV footage you resigned.

4Subsequently all available CCTV footage was reviewed.  Fifty-nine instances of alleged theft by you were located.  These CCTV files were played to the jury.  You were acquitted of seven charges and clearly the jury were unable to tell what, if anything, was taken on those occasions.  You were convicted on three charges of theft in relation to 18 July 2011 and two charges of theft for 19 July 2011.  These two days were the only footage available for that period.  Footage was available for the period of 28 November 2011 to 23 December 2011.  In that period 53 charges were alleged against you and you were convicted of 47 of those charges.

5In each charge for which you were convicted it can be seen that you took cash notes from customers and either put them in your pocket or, if you put them in or on the till, withdrew notes from the till and placed them in your pocket.  On other occasions you simply opened the till and took money from it and then pocketed it. 

6The various transactions were the subject of records kept by an electronic till and sometimes in a written book known as the Methadone Book.  You falsified the till records in various ways to attempt to conceal your dishonest conduct.  You made numerous no sale entries where there had been sales, you voided legitimate transactions and you reduced the amount of genuine transactions by undervaluing the sales.  You claimed in evidence that these entries were errors or mistakes.  It is clear that the jury rejected your evidence beyond reasonable doubt.  You repeatedly lied about your conduct.  You deliberately falsified the till records to attempt to conceal your systematic thefts.

7I have watched you carefully throughout the trial and watched the records of interview and your conduct on the CCTV footage.  It is clear that you are, in my view, an experienced and practised liar.  You believe you can obfuscate and bluff your way through this offending by relying on your good character and contrived personality.  Your so-called avuncular manner marks a practised fraudulent style.

8The prosecution alleged that the quantum of the 52 charges upon which you were convicted was $2425.  You disputed this figure. 

9At your counsel's insistence, I have again reviewed the footage of all the charges upon which you were convicted.  This review gave me yet another opportunity to watch your manner and demeanour at the time of each theft.  The brazen manner of your offending is obvious.  You checked to ensure you were not being watched, even though both Geoff and Sue Szwarcbard can be seen in the vicinity on occasions.  Other staff members can also be seen in the footage from time to time.

10Your manner and demeanour is obviously dishonest.

11I am satisfied beyond reasonable doubt in respect of the following charges so far as quantum is concerned.

On 18 July you stole $50, $50 and $20 in respect of Charges 2, 3 and 4.

On 19 July, in respect of Charge 6, you stole $50.

On 28 November, in relation to Charges 7, 8, 9 and 10, you stole $50, then $55, $40 and $50 on those four charges.

On 29 November you stole $20, $20 and $50 in respect of Charges 11 to 13 respectively.

On 1 December, in respect of Charges 14, 15, 16, 17 and 18, you stole $50, $10, $50, $10 and $50 respectively.

On Charges 19, 20 and 21, on 2 December, you stole $120, $50 and $20.

On 5 December, in respect of Charges 22, 24 and 25, you stole $65, $50 and $50 respectively.

On 6 December, 26, 27 and 28, $50 on each of those three charges.

On 9 December you were convicted in respect of six charges, Charges 29 to 34 respectively.  You stole $80, $60, $100 and three lots of $50 on those charges.

On 12 December you stole $50, $20 and $50 again in respect of Charges 35, 36 and 37.

On 13 December, $50 and $10 on Charges 38 and 39.

On 15 December, on Charges 40 to 42, you stole three lots of $50.

Charge 45 relates to 16 December.  That is $70.

Charges 47 and 48 relate to 19 December, and two amounts of $50. 

On 20 December, on Charges 49 to 52, you stole $20, $70, $50 and $50 respectively.

On Charge 54 on 21 December, you stole $50.

On Charge 55, $20.

On Charges 56 and 57, on 22 December, you stole $50 and $80.

Finally, on Charges 58 and 59, on 23 December, you stole $70.

12By my arithmetic, that amounts to $2670. 

13The Crown only sought $2425, so I will make an order for the lesser amount, $2425 as sought by the Crown.

14Although the total quantum of your offending is relatively low, your offending represents repeated examples of serious breach of the trust that had been placed in your by your employers.  You traded on that trust and stole from those who trusted you.  You knew the CCTV cameras were operating, but you thought you could get away with your repeated crimes because of the misplaced trust the owners had in you. 

15Each of your victims completed victim impact statements.

16Mr Geoffrey Szwarcbard said that he has become wary when dealing with people and he will not take them at face value, and he outlines the effort and stress that has been involved in getting this case to the barrier.

17Mrs Szwarcbard, in her victim impact statement, says that she feels that she has been betrayed by the friendship that they gave you, and she describes you as fraudulent and totally phoney.  She experiences anger and hurt at your crimes and that you overtly pretended to be their friend and a supposed trustworthy employer.

18I take the victim impact material into account in sentencing you.

19Your personal history demonstrates that you are well-educated.  You worked hard at your chosen profession over the years.  You have blighted what was otherwise a valuable and honourable life by your blatant dishonesty.  You are a loved father and grandfather.  You have no prior criminal history and you have given service to the community in many different ways. 

20You have exhibited, however, a complete lack of remorse for your offending.  You refuse to acknowledge your guilt in the face of overwhelming evidence, and I suspect that may be that you are unable to admit to your friends and family that you are in fact a thief.

21Your age is a significant factor in sentencing you.  I take into account your prior good character.  Your repeated and calculated offending involving such a blatant breach of trust, combined with your refusal to acknowledge guilt and total lack of remorse, has caused me to consider imposing a term of imprisonment for your offending.  You traded on a carefully crafted avuncular style to have people believe that you were trustworthy and affable.  In truth you were what used to be called a flimflam man.  The jury clearly saw through you.

22I can only impose a term of imprisonment if it is the only sentencing option appropriate for your offending. I cannot impose a suspended term unless a term of imprisonment is in fact warranted. Given the need to denounce your conduct, to deter others from similar offending and the need to give effect to all of the factors set out in in s.5 of the Sentencing Act, I am of the view that a fine is the appropriate sentence in your case.

23I was informed that you are financially comfortable.  You have superannuation and the proceeds of the sale of your family home behind you.  Clearly, as your conduct is a clear course of conduct, an aggregate sentence for all 52 theft charges is an appropriate disposition and both counsel conceded as much.

24Would you stand up, please?

25On all 52 charges you are convicted.  You are fined an aggregate sum of $26,000 in respect of all charges.  You are also to pay reparation to
Mr Szwarcbard in the sum of $2425. 

26I believe the seriousness of your offending and the community interest in adding to the DNA database warrants an order pursuant to s.464ZF of the Crimes Act in order to obtain an DNA sample.  I am obliged to inform you that the authorities are entitled to use reasonable force to obtain that sample.  You will have to go to a police station and a mouth swab will be taken.  It is clearly in your interests to cooperate.

27Any other orders required?

28MS GUESDON:  No, Your Honour.

29HIS HONOUR:  I will give you a stay of six months for the payment of the fine.

30MR KOUNAS:  If Your Honour pleases.

31HIS HONOUR:  You can leave the dock.

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