Director of Public Prosecutions v Gilroy
[2019] VCC 42
•30 January 2019
| Revised Not Restricted Suitable for Publication |
AT SHEPPARTON
CRIMINAL JURISDICTIONCR 18-01862
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JODIE GILROY |
---
| JUDGE: | HIS HONOUR JUDGE WRAIGHT |
| WHERE HELD: | Shepparton |
| DATE OF HEARING: | 21 January 2019 |
| DATE OF SENTENCE: | 30 January 2019 |
| CASE MAY BE CITED AS: | DPP v Gilroy |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 42 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW - SENTENCE
Catchwords: Guilty plea – four charges of obtain property by deception – rolled up charges – total money obtained $167,729.59 - no prior criminal record – early plea – genuine remorse – family hardship – whether Verdins principles apply
Legislation Cited: Crimes Act 1958 (Vic), Sentencing Act 1991 (Vic)
Cases Cited: Atanackovic v The Queen [2015] VSCA 136
Sentence: Convicted and placed on a Community Correction Order for a period of 3 years, 250 hours community work, mental health assessment and treatment---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D O'Doherty | OPP |
| For the Accused | Mr J Williams | Slater & King |
HIS HONOUR:
Introduction
1Jodie Leigh Gilroy, you have pleaded guilty to four charges of obtain property by deception contrary to s 81(1) of the Crimes Act 1958. The maximum penalty is 10 years imprisonment.
2You have no prior criminal history.
Circumstances of the offending
3A prosecution opening was tendered on the plea which may be summarised as follows:
4You have pleaded guilty to four rolled up charges of obtain property by deception. The total amount obtained is $167,729.59.
5The victim in this matter is Vicmill Natural Fertilizers Pty Ltd (Vicmill), which is situated at 210 Centre Road, Invergordon and is a family owned business. Vicmill manufactures natural humane fertilisers and animal feed supplements.
6You were interviewed and employed by Brian Nugent, who at the time was the owner and director of Vicmill. He has since retired but remains in control of the finances of Vicmill.
7Vicmill has since been sold to Colin Hill who is now the director of the company. He was going to take over the business around December 2016.
8You began employment with Vicmill on 16 July 2012 and worked for the company for approximately six years. You resigned on 28 February 2017 due to family commitments.
9You were originally employed as a full-time employee, however at some point in time you reduced your workload to part-time working three days a week. You were paid $25 per hour and your annual salary varied due to the amount of hours you worked each year.
10You were responsible for all the reception and administrative duties including invoicing, wages and bank reconciliation for Vicmill. You had full access to all bank accounts associated with the company.
11Vicmill had a business account with the Commonwealth Bank and the Australia and New Zealand Banking Group (ANZ). Attached to the ANZ account were three VISA debit cards. You were issued with those cards.
12Brian Nugent was under the impression that all cards were issued in the company’s name, however all cards were issued under your name. You were able to renew your ANZ card without Mr Nugent’s knowledge. The card would be used both as a debit card via EFTPOS or as a credit card through VISA.
13You were entrusted with a great deal of responsibility within Vicmill and were thought to be a model employee.
Charges 1 and 2 – The EFTPOS and VISA transactions
14An audit revealed that throughout your time at Vicmill you used your company card for personal gain. In summary, you used your card to purchase flights to New Zealand and accommodation for yourself and your children, dental treatment, clothing, electronics, furniture for your home office and entertainment. You also used the card to pay off personal telephone bills, electricity bills, to buy groceries and to buy fuel for your car. Mr Nugent states that he never gave you permission to use your card to purchase fuel. You were not required to travel for work.
15Whilst employed at Vicmill you became a beauty consultant for Arbonne Cosmetic Company. You used the Vicmill debit card to purchase Arbonne beauty products and office supplies which enabled you to set up a home business as a consultant. In total, you used the company business card to make 27 purchases from Arbonne, purchasing $18,990.84 worth of beauty products.
16You made 60 EFTPOS transactions, totalling $6,881.93.
17You further used the Vicmill business card to make VISA purchases. For example, $1,814.71 worth of beauty products, $6,480.75 on entertainment, $2,897.89 on Telstra phone bills, $14,758.69 on Origin Energy electricity bills and $4,028.38 on clothing. You made 166 VISA purchases, totalling $54,895.80.
Charge 3 – Withdrawing money from ATM machines and bank tellers
18You used your company card to make 45 cash withdrawals from ATMs and in person from bank tellers totalling $19,647.85.
19Mr Nugent obtained a bank statement from ANZ detailing all cash withdrawals from the card and compared them with descriptions in the company’s invoicing system. Each withdrawal was lodged into Vicmill’s invoicing system with a business name or business purpose, for example “cleaning” and “factory repairs”.
20These reckoning descriptions are false and were an attempt by you to disguise your unauthorised use of the money.
Charge 4 – The electronic transfers
21In February 2017, Mr Nugent was alerted to some discrepancies with the bank account of Vicmill. He located an unusual transaction for $1,580. The invoice for this transaction stated that it was payment to a business for repair work conducted at the Vicmill factory.
22On further investigation it was discovered that the $1,580 had been deposited into the Westpac bank account belonging to you.
23After this finding Mr Nugent requested his secretary and accountant perform a full audit on the bank account. Upon completion of the audit further discrepancies were discovered.
24Mr Nugent was presented with a list of fabricated transactions. Each transaction on the list was lodged into the business computer invoicing system with a name of where the money was paid to and the amount. It was discovered that each invoice was paid directly into your personal Westpac bank account.
25In total you made 172 electronic transactions totalling $86,304.01.
26Mr Nugent attended the Benalla Police Station in May 2017 to report the matter to the police.
27On Tuesday 26 September 2017, police attended your residential address to execute a warrant. A box containing bank statements, invoices and general paperwork belonging to Vicmill were seized. Your New Zealand passport was also seized. You were compliant and cooperative with the police.
28At 1.25 pm you attended Shepparton Police Station, where you were interviewed. You made admissions to the deceptions stating that it started with little things and that you were struggling to pay the electricity at home. In your mind you thought it was something small that you could contain just to keep the roof over your head and you were doing what you needed to do and it just snowballed.
29You stated to police that your offending had always been in the back of your mind and that you always felt sick and nervous about it and not knowing how to fix it. You believe some of the transactions were legitimate.
30On 5 June 2018, you again attended Shepparton Police Station by appointment for the purposes of conducting a further interview in relation to the ATM and bank teller withdrawals. You were shown the spreadsheet containing the withdrawals and admitted to making every transaction with your card, but denied that each withdrawal was made for your own personal gain.
Objective seriousness of the offending
31The total amount of money you obtained as represented by the four charges on the indictment is $167,729.59. Each charge is a rolled up charge representing multiple instances of you obtaining money by either EFTPOS transactions, VISA transactions, withdrawing money from automated teller machines and making direct transfers into your personal accounts. Further, in relation to charges three and four, you made false records in your employer’s documentation in order to hide your deception.
32While I accept that you were going through a difficult period financially and psychologically which I will address in detail later, it is clear from the many instances of offending as detailed in the schedules attached to the charges, that you were essentially using your employer’s money to conduct your daily life expenses including paying off utility bills and general household purchases. There are also specific instances of purchasing expensive personal items and travel for you and your family.
33The prosecution submits, and your counsel sensibly concedes, that in all the circumstances your offending is serious. I agree. While the amount of money itself makes the offending serious, your conduct also represents a serious breach of trust.
34Your employer Brian Nugent prepared a victim impact statement which was tendered on the plea. He notes that your conduct put his company and his family under financial and psychological hardship. He had significant trust in you and states that he treated you like one of the family. He notes that your conduct has put his family and the company under extreme financial pressure and has delayed his ability to purchase a property that he was going to use to live in in his retirement.
Personal circumstances
35Your personal circumstances are set out in some detail in psychological reports that were tendered on the plea from Patrick Newton and Carla Lechner.
36You are 44 years of age. You were born in New Zealand, the youngest of four daughters. You came from a loving and supportive family. Your parents were both employed and your childhood was very happy. You attended school in New Zealand to year 10 and you were a successful student up until that time. Unfortunately, when you were 14 years of age, you were sexually assaulted by the brother of a family friend. The ongoing effects of that assault are detailed in Mr Newton’s report. Following the trauma of this event your academic performance deteriorated, you began to use cannabis and ultimately you were asked to leave school at the end of year 10. You attempted to complete year 11 at another school and later completed year 11 by correspondence.
37After leaving school you worked in a retail job for approximately one year and then moved to Australia with your boyfriend. You moved to various cities in Australia as a result of your boyfriends work as a chef. Ultimately, you married him in 1993 when you were 18 years of age.
38You have three children from that relationship aged 20, 18 and 13. You suffered postnatal depression following the birth of your second and third child. The depression you suffered following the birth of your third child Jett, was severe and subsisted for an extended period. In the context of your postnatal depression your marriage deteriorated and broke down. You moved out with the children and they have been in your care ever since.
39Your employment with Vicmill began in 2012. You were a general administrative assistant however over time you also undertook bookkeeping for the business. You were employed on a casual basis and your role ultimately became that of a personal assistant for Brian Nugent, the owner of the business. You initially worked five days a week, however due to the demands of caring for your children, you were only working three days per week during the time the offences were committed. You resigned in February 2017 in order to care for your youngest child Jett who suffers from Autistic Spectrum Disorder (ASD) which has been assessed as moderate to severe.
40As Jett was unable to attend school as a result of the severity of his condition, you have home schooled him from 2014 until 2018 without support. However, in 2018 you were able to secure a place for him at the Mansfield Autism Dookie Campus although his attendance is not consistent. He is entirely reliant upon you to care for him and to attend to his needs including taking him to various paediatricians and other specialists in relation to his disorder. You also have your other two children in your care since your marriage breakdown.
41Psychological reports were tendered on the plea from Patrick Newton and Carla Lechner. Mr Newton is of the opinion that your emotional world is dominated by the impacts of the trauma you suffered as a young person, being the sexual assault. He has diagnosed you with chronic post-traumatic stress disorder which he says is more severe in the context of your depression. As to your depressive symptoms, he is of the view that you are suffering from moderate, recurrent major depressive disorder.
42Mr Williams who appeared on your behalf, submitted that the psychological impairments you suffered during the period of your offending impacted on your ability to make calm and rational choices. Mr Newton reports that when overwhelmed by stressful situations you enter into a dissociative state which in his view, impaired your mental clarity and reduced your ability to consider relevant information when making decisions. Thus, it was submitted on your behalf, that your moral culpability may be reduced as a result of the conditions that you were suffering at the time of the offending.
43Mr Newton is also of the view that your mental state would be likely to deteriorate significantly during any initial period of imprisonment and that your ongoing mental health problems would render any time in custody more difficult for you than would be for the case for a prisoner not afflicted by your challenges.
44A number of references were tendered on the plea. While they each provide detail as to your character and circumstances, in general terms they demonstrate that you have a very close and supportive network of family and friends. They all speak very eloquently as to the difficulties you have endured as a result of your personal circumstances including the hardships you have suffered as a result of the impact of your marriage breakdown. Further, they all note the enormous amount of care and attention you have devoted to your son Jett. The references also convey a common theme that your behaviour is extremely out of character which I accept is the case.
Sentencing considerations
45First, I take into account your plea of guilty. The plea was entered in the Magistrates’ Court at the committal mention and it is clear from your admissions and the way you have conducted yourself, that your plea is a plea entered at the earliest opportunity. Further, this case originally involved a large number of individual charges, and as such, the plea has saved the court considerable time and has therefore facilitated the course of justice.
46Over and above your plea of guilty I accept that you have demonstrated genuine remorse. It is clear from the answers in your record of interview together with the reports and letters of reference tendered, that you have shown genuine contrition for your behaviour. Further, you prepared a letter which was tendered and read by your counsel at the plea. In my view the sentiments of that letter also demonstrate your genuine remorse. For example you state in the letter:
It was never my intention to hurt anyone, but that’s exactly what my actions have done. I broke Mr Nugent’s trust and I have let so many people down, colleagues, family, friends and also let myself down.
I have caused so much stress for everyone and I am so very sorry for that. Even if I could give all the money back to Mr Nugent right now, I know that’s not going to fix the trust I broke or take away the guilt and shame I feel or the stress I have brought upon everyone involved.
47Mr Williams also submitted that as a result of your son’s condition together with the very close and supportive relationship you have with him, that family hardship has been established. It is well settled by the authorities that for family hardship to be considered as a sentencing consideration, exceptional circumstances must be shown. Having read the medical material in relation to your son’s condition, together with the references from family which detail the full-time care you provide to him, in my view I accept that exceptional circumstances have been established and that imprisonment would impose hardship upon your family. Significantly, in this case Mr O’Doherty who appeared on behalf of the Director of Public Prosecutions submitted that it is open for the court to find that exceptional circumstances do exist in this particular case.
48As noted above, it was submitted on your behalf that as a result of your psychological disorders which were extant at the time of the offending and continued to trouble you, that Verdins principles have application in this case. As discussed during the plea, in my view while I accept that you were suffering from the disorders as detailed by Mr Newton and Ms Lechner at the relevant time, to consider any application of Verdins principle one, as to whether or not your moral culpability can be reduced as a result of your conditions, must be considered in light of the circumstances of the offence.
49Each of the four charges on the indictment are rolled up charges representing hundreds of instances of transactions of either transferring of money or purchasing of items. Further, the evidence in relation to charges three and four demonstrate that you took active steps to cover up your deceptions by making false entries in business records. As such, in my view while I accept that your clarity of mind may have been such that you did not fully consider the consequences of your actions, it is clear that your offending occurred over a long period of time and you were making rational choices to use the money to pay for your daily life expenses, including some luxuries. Further, you took considered steps to cover up your deception. As such, while I accept that Verdins principle one does have application, in my view it is of limited weight in the circumstances.
50I do accept however that Verdins principles five and six do have application in this case based on the materials I have read and the ongoing seriousness of your psychological conditions.
51It is also of relevance that in this case the author of one of the references provided, Mr Jason Kelly, has offered on your behalf to repay the money that you have taken and I have received confirmation that this has occurred. It is a unique circumstance where a close friend supports you in this way by repaying the debt that you have incurred as a result of your crime. It also demonstrates the belief that Mr Kelly and many others have in you as detailed in his letter, that you are otherwise a person of good character and that you have suffered significant difficulties as a result of your family situation and your psychological conditions. In any event although the money has not come from you and I am not aware of the arrangement you have with Mr Kelly to repay him, importantly the victim in this case has been compensated for his loss.
52As to your prospects of rehabilitation, you come before the court at age 44 with no prior criminal history and nothing subsequent. You also have significant family support and have demonstrated remorse for your actions. In all the circumstances in my view your prospects of rehabilitation are very strong. As such I am also of the view that specific deterrence in this case carries little weight in the sentencing equation.
53As noted above, the offending of course is still serious and general deterrence, although moderated to some degree as a result of the application of Verdins principles, still has application in this case. Further, this was a breach of trust as you were an employee of the victim and such conduct must be denounced by the courts.
54In all the circumstances, in my view the relevant sentencing considerations are able to be met by the imposition of a community correction order. I have had you assessed for such an order and you have been assessed as suitable.
55A community correction order is of course able to incorporate punitive and rehabilitative purposes and ultimately as noted by the Court of Appeal, such an order is capable of offering the ‘best opportunity to promote the best interests of the community and those of the offender’.[1]
[1]Atanackovic v The Queen [2015] VSCA 136 at [97].
Sentence
56Ms Gilroy please stand.
57Jodie Gilroy, in relation to charges 1, 2, 3 and 4, you will be convicted and placed on a community correction order for a period of three years. The order will include punitive and therapeutic components.
58You will be required to complete 250 hours community work over the three year period. The order will also require that you undertake mental health assessment and treatment as required.
59Pursuant to s 48CA of the Sentencing Act 1991, I direct that all of the hours you satisfactorily complete pursuant to the mental health assessment and treatment condition may be credited as hours of unpaid community work.
60Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty I would have sentenced you to a period of 12 months imprisonment with a non-parole period of 8 months.
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