Director of Public Prosecutions v Gill

[2020] VCC 364

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-01226

DIRECTOR OF PUBLIC PROSECUTIONS

v

KAMALJEET GILL

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	19 March 2020
DATE OF SENTENCE:	27 March 2020
CASE MAY BE CITED AS:	DPP v Gill
MEDIUM NEUTRAL CITATION:	[2020] VCC 364

REASONS FOR SENTENCE

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Subject:Plea - sentencing

Catchwords:       Misconduct in public office- obtain property by deception - theft

Legislation Cited:     IBAC Act 2011, Sentencing Act 1991

Cases Cited:

Sentence:3 years and 6 months’ imprisonment, 2 years non-parole

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APPEARANCES:	Counsel	Solicitors
For the DPP at hearing For the DPP at sentence	Ms R. Hamnet Ms M. Vingerhoets	Office of Public Prosecutions
For the Accused at hearing For the Accused at sentence	Mr P. Dunn Q.C. Mr S. Cooper	Doogue & George

HIS HONOUR: 

1Kamaljeet Gill, you have pleaded guilty to one charge of misconduct in public office, one charge of obtain property by deception and one charge of theft. 

2Each of these charges carries a maximum penalty of 10 years' imprisonment.

3You were born on 9 April 1968 and are now 51 years old.  You were aged from 46 to 50 over the time of the offending.

4You have no prior criminal history, nor anything subsequent.

5By way of background, in November 2018 the Independent Broad-based
Anti-corruption Commission commenced Operation Franklin, an investigation into the alleged fraudulent acquisition and use of EFTPOS-type gift cards that were obtained without authorisation using Victoria University funds.

6You were employed as an Executive Assistant to the Executive Director of Marketing & Communication at the Footscray Victoria University campus and were a public officer within the meaning of s.6 of the IBAC Act 2011 (Vic). 

7You coordinated two separate schemes to obtained EFTPOS-type gift cards from iGoDirect (“iGo”) and Coles Myer via an online portal as well as through
Leo Burnett, a marketing company that is contracted by Victoria University.

8Without authorisation, you used Victoria University funds to obtain gift cards from iGo to the value of $614,149.82 and gift cards from Coles Myer to the value of $36,500.

9As to the iGo gift card scheme, between 19 September 2014 and 10 April 2018 you ordered EFTPOS-type debit cards from iGo with Victoria University funds under the guise of a fake marketing program.  The cards were purported to be distributed to potential Victoria University students as an incentive to attract students to enrol at Victoria University. 

10You coordinated orders for small quantities of large-value gift cards.  You would request a quote for a batch of iGo gift cards.  On receipt of the quote, you would request that the cards be sent to you at Victoria University.  You would then coordinate payment for the cards from Victoria University funds.

11Schedule A to the indictment provides a breakdown of the cards ordered and the value of each gift card during the period of the offending.  In total, you coordinated orders from iGo in relation to 18 separate invoices for 198 cards to the value of $614,261.55.

12In relation to nine of those invoices received from iGo, you created a new false invoice with material differences to the number and value of the cards and where they could be used.  You inserted electronic copies of Victoria University staff signatures on the false invoices.

13You also used false marketing briefs to justify ordering the cards and payments to iGo and inserted the staff signatures on the marketing briefs to enable the invoices to be approved and paid for by Victoria University.

14As of 9 September 2018 you had spent nearly all of the $614,261.55, with a total of $76.34 credit remaining on three cards.  A further 26 cards lost a collective $35.39 as expired, that is, unspent, funds.

15Information obtained from iGo has identified the transaction details of where each gift card sent to you was used.  You made a total of 3,469 expense transactions using the iGo gift cards.  You also made payments at various Australia Post stores and transferred $75,000.03 from iGo gift cards onto two Load&Go travel cards in your own name and in the name of your daughter.  As at 27 February 2019, there was a remaining balance of $88.95 on the Load&Go cards.  

16You used the Load&Go travel cards to withdraw $32,518.30 cash to purchase goods and services as well as to make deposits into your own bank account. 

17Enquiries made by IBAC with various retailers had revealed evidence of goods having been delivered to your residences, records of your personal details having been provided when iGo gift cards were used to make purchases, and instances when rewards and loyalty cards assigned to you were used in conjunction with an iGo gift card.

18Analysis of your bank account statement has identified instances where purchases for goods and services were made with funds from your bank account and iGo gift cards at the same time.

19On 1 March 2019, IBAC conducted a search warrant at your residence.  The search identified a number of items that had been purchased by you with the iGo gift cards, giving rise to Charge 1 of misconduct on public office and
Charge 2 of obtaining property by deception.

20As to the Coles Myer gift card scheme, Victoria University Marketing has used Coles Myer gift cards as an incentive to encourage students to participate in various Victoria University advertising campaigns.

21On 16 occasions between 11 April 2016 and 7 August 2018, you used your corporate credit card as well as the corporate cards held by the current and previous Executive Directors of Marketing at Victoria University to order a total of 298 Coles gift cards, valued at $64,800.

22You placed the orders yourself via an online portal and provided access to the account in your name to enable marketing company Leo Burnett to order the gift cards on your behalf. 

23The orders were paid for with Victoria University funds and the gift cards with the pre-loaded funds were delivered to Victoria University.  The gift cards were received and signed for by you and other Victoria University staff.

24You stole 102 of these cards, valued at $36,650, giving rise to Charge 3, theft.  You used the gift cards in conjunction with your Flybuys rewards card to purchase various goods and services.

25I now turn to your personal circumstances.  As noted earlier, you are now
51 years old, you were aged from 46 to 50 at the time of the offending and you have no criminal record. 

26You were raised in Malaysia and your family frequently moved due to your father's role in the military.  Despite some personality conflict with your mother, you were well cared for.  You have remained in contact with your parents and siblings and your father and siblings have remained supportive of you.

27You are well-educated.  After secondary school you completed a Diploma in Executive Secretaryship and a Certificate in Administrative Management.  You later obtained qualifications including a Bachelor of Business and a Graduate Diploma in Project Management.

28You moved out of the family home in your mid-20s when you married your first husband and you subsequently migrated to Australia. 

29You maintained steady employment in administrative positions from 1987 in Malaysia and have been employed continuously since your arrival in Australia in 1993 until your employment was terminated by Victoria University in 2019.

30You had worked at the university for approximately 19 years, commencing firstly part time, then full time from 2006.

31You have a daughter by your first husband.  Unfortunately, your first husband died of heart failure in 2004.  You struggled emotionally and financially in the years after his death.  You married again in 2009 and you and your second husband have one son together who is now aged 11. 

32Your son has significant health issues and this has placed a strain on your marriage.  He has been diagnosed with Autism Spectrum Disorder and Noonan Syndrome.  His behaviour has been very challenging because of his Autism Disorder and his medical and management needs have contributed to significant financial and emotional stress on the family.

33Noonan Syndrome is a disease affecting the eyes and results in decreased vision and potential for further eyesight deterioration and cardiac issues.  Your son has been diagnosed with a low IQ, indicating a mild intellectual disability.

34The character references tendered speak of your hard work, commitment to family, especially to the care and support you have provided for your son, your remorse and shame for your acts, your generosity and assistance to others.

35A psychological report from Dr Matthew Barth, psychologist, was tendered on your plea, as well as a further report from Dr Max Lee, clinical psychologist.

36It is clear that you are currently significantly depressed in the context of a longstanding struggle with low self-esteem and self-doubt.  You have typically been a mild social drinker; however your low self-esteem and feelings of having constantly underachieved has impacted on your emotional wellbeing over the years and at times you have consumed alcohol more heavily in a dysfunctional attempt to assuage your distress.  At these times you would consume four to five glasses of wine a night.  I understand you have reduced that consumption.

37Over the years you often questioned your ability to be an effective mother to your children and have repeatedly blamed yourself for your son's challenges, which has deepened your own personal sense of failure.  You told Dr Barth that you often over-compensated by buying both of your children expensive gifts and taking them on holidays, and admitted to spending money impulsively.

38You have never used illicit substances and deny having any issues with gambling.

39The current charges have precipitated a reactive emotional crisis, exacerbating feelings of self-loathing and intrusive feelings of suicidal ideation.  There was a reported attempt of suicide in March 2019 which was followed by hospital care.  You have subsequently been assisted by regular counselling with psychologists Drs Kavanagh and Lee.

40Your current diagnosis is one of Adjustment Disorder with Depressed Mood. 
In Dr Barth's opinion, whilst personality and behavioural adjustment are problematic, you do not meet full diagnostic criteria for a personality disorder.  Nevertheless, your current depression has been assessed as being significant, your coping skills are limited and you are vulnerable to poor decision-making.  You require access to supportive psychological treatment and without it, you may be vulnerable to more severe depressive mood disturbance.

41The offending, by its level of deception, its gross breach of trust and the creation of false invoices and fraudulent signatures, is serious offending and is aggravated by its persistence and repetition over a period of just short of four years.  The offending was calculated and involved careful planning and detailed preparation.

42Whilst I accept that the principle of specific deterrence should be moderated considering your personal circumstances, it is not eliminated.  The offending involved very significant amounts of money over an extended period and a great breach of trust.  The principle of general deterrence remains significant.

43In mitigation, I have considered all the matters urged by your counsel and, in particular, taken into account:

·     your early plea of guilty, both for its utilitarian effect and as an expression of remorse;

·     your previous good character, as evidenced by the absence of any previous offending and the character references tendered at your plea;

·     your personal circumstances, including your underlying emotional vulnerabilities in the context of the tragic loss of your first husband, a toxic work environment, the very stressful and demanding difficulties you have experienced with your son and the additional stress this has placed on your marriage;

·     your current emotional distress and depression which I accept is continuing and with your concern for your son will mean that imprisonment will be more burdensome for you than upon a person in normal health and that there is a serious risk of imprisonment having a significant adverse effect on your mental health - in light of the care that is available to your son, I am not persuaded that his circumstances constitute a basis for third party hardship as a separate mitigating factor;

·     the significant fact that you have made full restitution through the assistance of your parents and your husband's brother - you will have to repay these loans in the future, likely through the eventual sale of your family home;

·     your prospects of rehabilitation, which I accept are good.

44The basic purpose or purposes for which a court may impose a sentence are punishment, deterrence - that is both specific to you and general to make an example of your conduct in order to deter other like-minded individuals, rehabilitation, denunciation and the protection of the community.

45In sentencing, I have regard to a range of matters such as the maximum penalty for the offence, the nature and gravity of the offence, your culpability and degree of responsibility for it, your personal circumstances and those of the victims and the context of current sentencing practices.

46Each factor must be balanced in order to impose a sentence that is just in all the circumstances.  I am required to balance the interests of the community in denouncing and punishing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.

47On Charge 1 of misconduct in public office, you are convicted and sentenced to three years' imprisonment. 

48On Charge 2 of obtaining property by deception, you are convicted and sentenced to three years' imprisonment. 

49On Charge 3 of theft, you are convicted and sentenced to one year’s imprisonment.

50Charge 1 is the base sentence.

51I direct that six months of the sentence imposed on Charge 3 be served cumulatively on the sentence imposed on Charge 1.  The sentences are otherwise concurrent.

52The total effective sentence is 42 months' imprisonment.

53I direct that you served a minimum of 24 months' imprisonment before being eligible for parole.

54Pursuant to s.18(4) of the Sentencing Act, I declare that the period of eight days, not including today, be reckoned as time already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.

55Pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty the total effective sentence that would have been imposed is five years' imprisonment with a minimum period of three years to be served before eligibility for parole.

56At the plea hearing, the Crown sought an order for a forensic sample and I make that order today for the reasons noted on the order, namely, that the seriousness of the offending warrants the making of the order, the order is not opposed and the making of the order is in the public interest.

57I also need to inform you that if, at the time of the request for the sample you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted.  Do you understand that, Ms Gill?

58OFFENDER:  Yes, Your Honour.

59HIS HONOUR:  Thank you.

60Any other matters from either counsel?

61MS VINGERHOETS:  No, Your Honour.

62MR COOPER:  No, Your Honour.

63HIS HONOUR:  In light of the psychological report, it would seem sensible for me, whilst in my experience the reactive depression that Ms Gill is currently having tends to resolve once these proceedings are resolved, but in light of that material, I think it is probably important that I put a note on the order as to custody management issues with a reference to danger of self-harm.

64MR COOPER:  I would make a submission to the same, Your Honour.

65HIS HONOUR:  Yes - I will do that.

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