Director of Public Prosecutions v Guy
[2016] VCC 1497
•10 October 2016
| IN THE COUNTY COURT OF VICTORIA AT GEELONG CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-01020
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GREGORY WILLIAM GUY |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 10 October 2016 | |
DATE OF SENTENCE: | 10 October 2016 | |
CASE MAY BE CITED AS: | DPP v Guy | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1497 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr K.J. Doyle | OPP |
| For the Accused | Mr A. Halphen | Stary Norton Halphen |
HER HONOUR:
1 Gregory Guy, over a period of nearly three years between November 2012 and September 2015 in 63 separate transactions you stole from your long-term employer.
2 You had been employed by APCO, or Disco Trading Pty Ltd, I should say, which traded both as APCO and as Chas Cole Cellars for a total of 17 years and for the last seven you had been employed as the manager of Chas Cole Cellars.
3 As part of your duties as manager of Chas Cole Cellars you were responsible for operations, banking and daily reporting of sales figures to the chief financial officer, Fiona Rowan. She was not just a colleague of yours, but it would appear, a friend.
4 It became clear in the period leading up to September 2015 that the sales figures showed the business, although operating well, had profit margins and stock control that did not match the figures.
5 It would also appear that in the period leading up to early September 2015 Ms Rowan had told you that she was about to do the books for Chas Cole Cellars.
6 In the three weeks or so before she had told you that you had stolen an amount of, roughly, $20,000 from the company, That was the 63rd of what turned out to be, the 63 charges of theft to which you have pleaded guilty.
7 That amount was stolen in a way that was more blatant than the way in which the other amounts had been stolen. It was a significantly larger amount taken over a much smaller period and with no real effort to cover up the theft.
8 As a result of a combination, perhaps, of an appreciation that your theft from your employer was getting out of control and that the net was closing, you had the courage to arrange a meeting with Mr Peter Anderson and Mr Robert Anderson, the directors of APCO and made a disclosure to them of thefts over the previous two months.
9 As you clearly appreciated, your employment would have been, and was in fact, immediately terminated. You left the office and your employment and the long-term personal and professional relationships you had enjoyed at APCO.
10 As a result of that an audit was undertaken by Ms Rowan and it was ultimately revealed that over that, nearly three year period, you had stolen an amount in excess of $200,000 from your employer.
11 You had further meetings with your employer, after the audit had been concluded, and in the course of the audit, which assisted significantly in helping identify exactly where you had stolen the money from and how you had concealed it. When confronted with the full results of the audit you acknowledged your wrong-doing and the extent of it.
12 You were interviewed by the police in late December 2015 and again made full admissions to the police in respect of your wrong-doing.
13 You were charged with multiple counts of theft, and ultimately as a result of a negotiated guilty plea, you have pleaded guilty to three rolled-up charges of theft. The first relating to the thefts between the period from November 2012 through to the end of December 2013; the second for the period from 1 January to 31 December 2014; and the third charge of theft for the period between 1 January 2015 and 10 September 2015.
14 Charge 1 involves 14 separate theft transactions and the amount taken in that, just over 12 month period, was $41,615.60. You committed the thefts, essentially, in two ways.
15 The first was to under-report general sales. The first five transactions in that rolled-up 14 transaction, or 14 occasion theft for Charge 1, related to under-reporting of general sales. In five separate monthly periods, November 2012, December 2012 and October, November and December 2013 you appropriated cash from the daily cash takings and under-reported the sales figure in the general ledger sales report which was provided monthly to Ms Rowan.
16 On nine separate occasions, once relating to a business called Geelong Street Rodders, and eight times relating to a business called Clyde Park Vineyard, you stole money in a different way. Both these organisations were regular clients of Chas Cole Cellars and they would regularly order products from you. You were required to raise an invoice for the sale, process that on to the company's point of sale system and then acquit it against the cheque, once payment was received from Clyde Park or Geelong Street Rodders.
17 On eight occasions in relation to Clyde Park, and once in relation to Geelong Street Rodders, you raised an invoice but did it as a manual invoice. You did not enter it on to the point of sale system, and when the invoice was duly paid by cheque by those customers, you banked the cheque but appropriated an equivalent amount from the cash takings, thereby concealing the invoices that had been sent to Clyde Park and Geelong Street.
18 Charge 2, consists of 29 occasions in the 2014 year. Eleven of those transactions were under-reporting of general sales, so that is, in 11 of the 12 monthly periods you appropriated cash and under-reported the sales for that month.
19 On 16 occasions you created manual invoices for Clyde Park Vineyard in respect of goods ordered by and supplied by them, banked the cheque and appropriated a cash equivalent and did not enter the invoices on the point of sale system. On one occasion you did the same in relation to Geelong Street Rodders.
20 Another customer of Chas Cole Cellars was Sante Wines. On one occasion, on behalf of Chas Cole Cellars, you purchased 32 cases of sauvignon blanc from them. They provided you, for your employer, with a $2,000 EFTPOS gift card in appreciation of the sale. You failed to account to that for your employer. You stole the card and cashed in the funds for yourself. That then constitutes the 29 separate transactions relating to the 2014 year and that constitutes Charge 2.
21 Charge 3 is for that nine month period from 1 January to the end of September 2015. On eight occasions, so that is in each of the months leading up to September 2015, you again pocketed cash and under-reported general sales for the months.
22 On ten occasions you appropriated funds to the equivalent of a cheque provided by Clyde Park Vineyard in relation to a manual invoice raised by you for goods actually supplied to them but which invoice you did not enter on to the point of sale system. Again on one occasion, you did the same in relation to Geelong Street Rodders.
23 The last charge, the last individualised theft transaction is the one to which I referred at the start of these reasons, the one that led to your identification to your employers of the theft, that is when you had taken over that three week period, an amount of approximately $20,000. Much of that was simply taken from the cash takings or from the float and you had, or had not by the time you made your disclosure, done a cover-up in the monthly sales figures.
24 Just over five, nearly $6,000 of it was partially disguised by creating a false amount outstanding on the Clyde Park Cellars account which showed up at that stage as an outstanding amount which had not been cleared by Clyde Park. That was, in part, revealed by the audit undertaken by Ms Rowan, and part by acknowledgement by you and the production of reconciliation or an attempted reconciliation.
25 It is clear from that very brief summary of the offending that it is persistent and serious offending. Features which go to an assessment of the seriousness of the offending include these. The period of offending was for a protracted time; nearly three years. There was a significant number of transactions; a total of 63 separate transactions over that period. The transactions escalated in amount and frequency over that time suggesting that you were emboldened by your early success in getting away with it.
26 There were 14 separate thefts in the first 13 months, 29 in the second 12 months and 20 in the last 12 months.
27 There was a considerable level of sophistication, leaving aside the final theft, the sixty third in the list, which was relied on as part of the third rolled-up charge. Two different methods were employed simultaneously. One, the under- reporting of sales figures in the monthly reports, which covered the taking of cash, and the other the raising of those manual invoices for goods and taking a cash equivalent to the cheques that were paid.
28 The amount of money over that nearly three year period, over $200,000, is a significant amount of money for a business and this was a significant breach of trust. You were a long-serving employee of APCO and you had been seven years itself at Chas Cole Cellars.
29 As the victim impact statement of Mr Peter Anderson shows, the Andersons considered that they had showed you great loyalty and support over the years. As their business had expanded and they perceived that you did not have the skills or the application to commit to an expanded management role, instead of making you redundant, they had found another position for you in the company that they considered more appropriately reflected your skill set. They continued to support you even when they considered that you were under-performing in the role. They feel personally, as well as professionally, betrayed and that is not surprising. This was properly to be described as a personal as well as professional betrayal of trust.
30 All the thefts were committed to pay for your gambling and that is no mitigating factor. It is a factor, in my view, that adds to the seriousness here because gambling had been a long-term problem for you. It was one that had been acknowledged by you as having caused you problems. It was one that you had been confronted by in the past but had failed, on the material put to me, to consistently engage with or to conscientiously acknowledge and deal with it. It had led to some, what you now describe as, token efforts in engagement in counselling but without a real preparedness to change.
31 Your gambling had led to significant personal problems for you over the years including, I was told, several separations from your wife and removal of any assets owned by her, or her share in jointly owned assets, from your control. That is, to attempt to protect her from the consequences of your gambling behaviour. That had led to not only obvious financial hardship for her and perhaps for the family more generally, but significant difficulties in your relationship with your wife. None of that had been sufficient in the past to make you confront your gambling problem and address it.
32 At the time that you committed this offending, that is over the three year period, you had falsely asserted to your wife and children that you had given up gambling and that you were no longer doing so. So your theft from your employer was, not only theft in order to gamble, but also to cover up the fact that you were lying to your wife and to your family about your resumption of gambling. Your ability to continue to assert that you were not gambling was, in effect, supported by using your employer's money as a secret source of funds so as to, not only gamble, not only steal from your employer, but to hide from your family that you had yet again, it would appear, gone back on your word about that.
33 All of those add, in my view, to the seriousness of the offending, both in terms of its objective seriousness, but also in terms of your personal moral culpability in respect of it.
34 We often speak of thefts from employers as breaches of trust, but it would appear here, that there was a breach of trust in a broader sense than to your employer too.
35 Thefts of substantial sums of money, as these were, over extended periods, as this, was by a trusted employee, as you were, and someone who used their position of trust in the organisation to commit the theft as you did, must be denounced and denounced strongly by courts when people are detected. It is often said that thefts committed by people in a position of trust are hard to detect because they are the ones who are responsible for receiving and accounting for the moneys and so they are the ones who are best able to conceal it. The balance between reposing trust properly in a trusted and senior employee and having extensive checks and balances, and valuing the personal relationships in smaller organisations, often mean that the thefts can go on for longer undetected than they might in other circumstances. Hence, again, the need for denunciation once these thefts are discovered as they were in this case.
36 I have already made reference to the effect on your employer, Mr Anderson. Some of what he said in the victim impact statement is particularly distressing as he speaks about the personal as well as the professional relationship, the sense of betrayal of trust, not only his trust in you, but the sense of lack of trust that he feels he must now have generally in his dealings with employees. He spoke of the need to put in greater protections because he feels he can no longer trust somebody just by looking them in the eye and believing that a long relationship of employer and employee is sufficient. He has lost his belief in what he thought was a workplace that was characterised by mutual trust and respect. So his trust, in not only you has been destroyed, but his trust in other people and his other employees has been, understandably, diminished and that is a very sad thing.
37 It is clear that, subject to considerations personal to you, denunciation, just punishment and general deterrence must be given considerable weight. Employees must understand that they cannot steal from their employees and they cannot lie to them and conceal it in the way you have without facing significant consequences when they do.
38 A number of weighty matters in your favour have been placed before me and relied upon. You are now 56 years of age and you were aged between 52 and 55 when you committed these offences.
39 You have no previous convictions and you have not been charged with or convicted of any offence in the 12 months or so since this offending came to light.
40 You have, apart from this offending, and perhaps the difficulties evidenced by a long-standing problem with gambling, you come before the court and are properly to be treated as a person of good character otherwise than this.
41 You come before the court as a person who has worked all his adult life and had a stable history of employment. As I have already noted, 17 years with your most recent employer, APCO.
42 Although the net may have been closing around you by August and early September of 2015, I consider that it takes considerable courage to go and face your employer and tell them, looking them in the face, what you have done rather than write a letter, run away or deny it, which is all too often the response of people faced with what you were. Although it does not make it any better for your employer, I consider, it does take considerable personal courage and it is evidence of other conduct after that that shows, perhaps belatedly, but nonetheless significantly, a preparedness to take personal, moral, as well as legal responsibility for your behaviour.
43 That initial disclosure was followed, as I have already noted, by the subsequent co-operation. You explained what you had done, acknowledged the results of the audit, co-operated with the police and made full admissions in your recorded interview.
44 All of that meant that you are able now to be before this court within 12 months of the revelation of the fraud. Had you not made those disclosures, had the audit by Ms Rowan not been as comprehensive as it was and acknowledged by you, the investigative process by the company and then by the police, would have been a much longer and slower one, and the time and cost of a trial had you chosen to deny your guilt or to put the prosecution to proof, would have been significant. You have, by those early and consistent acknowledgements and co-operation with the authorities, saved a considerable amount of company time as well as community money in the terms of the cost of police investigation, prosecution and trial.
45 Consistently, with the admissions that you made, you pleaded guilty and did so at the earliest opportunity and that counts in your favour, not only for its utilitarian value, but also because it is consistently with the other conduct that I have identified, evidence of genuine remorse and attempts to make amends as best you can. Although that is of course not complete and will never be complete for your employer.
46 Most significantly, in terms of an acceptance of your responsibility, apart from facing your employer and coming clean about what you had done, you accepted that it was your gambling that had got you to the position that you are in. Within days of your disclosure to your employer you have taken yourself off to Gamblers Anonymous and you have engaged since then, consistently, with intensive counselling and GA meetings. In fact, you are now, as I am told, the secretary of the local branch. I am told that you last placed a bet on 16 September last year, which was I think, the day before you faced your employer and took responsibility.
47 I accept therefore that you have done all you can, or you could have done since facing that responsibility, to demonstrate a commitment to address the long-standing gambling problem that, not only led to you sitting in this dock, but has clearly blighted much of your adult life and your adult relationships.
48 You are fortunate to have and to retain the support of your parents, your sister and brother-in-law and some staunch friends. It is very difficult for people who have respected and loved a family member or a friend to discover that they have engaged in such persistent dishonesty and to still see some good in the person, and those family and friends who have stood behind you clearly see that, and that is something that you should be very grateful for indeed.
49 You have also returned to part-time work as a chauffeur, showing again, that you are prepared to try and make some amends and to make something of your life rather than simply throw up your hands and say, it is all too hard, continue to gamble or to simply be defeated and to seek to have other people take responsibility for your problems.
50 All of these matters, I accept, indicate that your prospects for rehabilitation are good, and although some weight must be given to specific deterrence, that the weight to be given to it is much tempered by the evidence of the persistence of your efforts to date to address your wrong-doing, to acknowledge it, not to try and make excuses for yourself and to sustain the efforts to keep away from gambling.
51 I am told, and it is not surprising, that your marriage, a 33 year marriage, has been often blighted by the consequences of your gambling. Your wife was described by Mr Halphen, in his very helpful and comprehensive plea, as long-suffering. I have already referred to the attempts made to protect her over the years; to quarantine her from any further, I would imagine, consequences of your gambling behaviour. It must have been humiliating for her, as it was for you, to put you on an allowance to try and keep you from gambling and even then to discover that that was not enough.
52 Her attempts in the past to bring you to your senses by throwing you out also appeared to have been unsuccessful and it is, I suspect, a sad thing for her as well as for you, that it was not until you engaged in criminal behaviour that you were brought to confront the reality of your behaviour and the problems you were getting in, that you would not listen to her and accept her advice and the ultimata that she gave you.
53 I was told by Mr Halphen that in fact in August 2015, at the time that that last theft transaction, transaction 63, that is part of that rolled-up Charge 3 occurred, that your wife had discovered that you had, indeed, continued to gamble despite your promises and had, again, thrown you out. It was that that led to, not only that extraordinarily much larger amount that you stole over that next 21 day period, but also to your finding yourself at that stage out of control, continuing to gamble, not prepared to tell anyone, not prepared to acknowledge it and therefore living in your car for the period of 21 days until you finally realised that the balloon was going up and you confronted the truth and spoke to your employer.
54 You remained separated from your wife until March of this year. You were fortunate that your sister and brother-in-law and then your parents remained supportive and provided you with stable housing and encouragement to continue to engage in the counselling that you were then prepared to commit to.
55 In March of this year, as if she had not endured enough, your wife discovered that she had been diagnosed with cervical cancer. She has had to endure chemotherapy and now radiotherapy. She asked you to come back and care for her and you have done so. You have supported her, as I understand it, through the chemotherapy and now the radiotherapy, and you have acted very much in the role of carer, taking on many of the responsibilities I gather she had previously assumed in the home. You are cooking for her, looking after her and looking after the house for her. It speaks volumes for her. She is, indeed, as Mr Halphen described, a long-suffering wife if in these circumstances she has asked you to come back and to look after her and has been prepared to accept the help and support that you can give her.
56 Her response to the treatment that she is still undergoing is, of course, at this stage unable to be clearly identified. She is still in the radiotherapy course and the results from that will not be known, I am told, until at least November of this year. One can say that the results from the chemotherapy must have been promising enough to subject her to a bout of radiotherapy, or a course of radiotherapy after that, but she is living as must be you and the rest of the family, with a real uncertainty and fear about her prognosis and her future.
57 You are still, as I understand it, estranged, or to some extent estranged, from your two adult children who are finding it harder to forgive your breaches of trust than your wife has done. But your support for your wife and her preparedness to ask you to come and help also speak volumes for the other parts of you that must exist, apart from this terrible dishonesty that has blighted these years in your 50s, and that has been the theme, in effect, that ran through your history of gambling and failure to acknowledge it over much of your adult life.
58 I accept that, because of your wife's condition, any term of imprisonment would be much more onerous for you than it would be for somebody who was not in your circumstances, and who had not been invited back to provide support, moral as well as physical for your wife in the circumstances she now finds herself in. This must be a terrible and frightening time for her and I accept that a term of imprisonment, if you are not able to be with her to support her, morally, emotionally, as well as physically, will make imprisonment more onerous for you.
59 I note that the mercy discretion has not been invoked here. Nonetheless, her condition and the care that you have given her, count, in my view, as significant. Indeed, the most significant factors counting in your favour and affecting the sentence to be imposed. Her condition and the support that you have been providing her, and the distress that you will no doubt be occasioned during any term of imprisonment, operate to significantly moderate the sentence that would otherwise be appropriate.
60 Her condition, coupled with your plea of guilty and the stage at which it was entered, the evidence of the efforts to acknowledge and address the underlying gambling problem, the other evidence of remorse, the volunteering of the handing over of your severance pay, your superannuation and the other matters, although they would have been able to be clawed back by your employer anyway, but the volunteering of that meant that you made it a little easier for partial reparation to be obtained by your employer. That, too, is further evidence of your acceptance of responsibility and your remorse.
61 That, with the other evidence of remorse that I have identified, your past good character and your good prospects for rehabilitation all point to the imposition of a lower sentence than otherwise would be appropriate.
62 Despite the strength of the mitigating factors though, and as I indicated in my discussions with Mr Halphen, I have come to the view that no sentence, other than one involving a component of imprisonment, is appropriate having regard to the needs to properly reflect denunciation, just punishment and general deterrence.
63 In the circumstances I consider that a combination of a term of imprisonment, significantly moderated by reason of those factors, and a community correction order is the appropriate sentence to impose in the circumstances. So that is what I propose to do.
64 Could you now please stand. On the three rolled-up charges of theft, to which you have pleaded guilty, you are convicted.
65 On Charge 1, the charge of theft for the 2013 year, you are sentenced to be imprisoned for a period of six months and then to serve a community correction order, the terms of which I will announce shortly.
66 On Charge 2, the 12 month period for the 2014 year, you are sentenced to be imprisoned for a period of 12 months and that is the base sentence, followed by the CCO.
67 On Charge 3, the 2015 year partial year, you are sentenced to be imprisoned for a period of nine months, followed by the CCO.
68 Charge 2 is the base sentence. I direct that one month of the sentence on Charge 1 and two months of the sentence on Charge 3 be served cumulatively upon each other and upon the sentence on Charge2.
69 That makes a total effective sentence of 15 months and that is to be followed by a community correction order on all three charges for a period of 18 months which will commence immediately upon your release from your term of imprisonment.
70 The conditions of that community correction order are these. There are mandatory conditions that apply to all community corrections orders. They are that you must not commit another offence for which you could be imprisoned during the time that the order is in force. That you must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations. That means you must not be impaired by drugs or alcohol when you attend for any attendance at Corrections or any attendance directed by them, and you must submit to drug or alcohol testing, if required to do so.
71 You must report to and receive visits from the Secretary or delegate. You must report to the Community Corrections Centre at Level 5, 30A Little Malop Street, Geelong within two clear working days after the commencement of the order, so that means, within two clear working days after your release.
72 You must let a Community Corrections officer know within two clear working days if you change your address or your job. You must not leave Victoria without first getting permission to do so from the Secretary or delegate and you must obey all lawful instructions from and directions of the Secretary or delegate.
73 In addition to the core conditions, I impose the following conditions. You must perform 180 hours of unpaid community work over a period of 18 months as directed by the regional manager. If you fail to comply with this condition the Secretary of the Department of Justice or delegate may give you a direction to perform additional hours of unpaid community work in accordance with s.83AU of the Sentencing Act.
74 You must participate in programs and/or courses that address factors relating to the offending as directed by the regional manager. Specifically, to engage in counselling and such other programs as are recommended by Bethany Community Support, or such other gambling support services, as are recommended by the regional manager or delegate.
75 Do you understand the effect and the conditions of this order?
76 OFFENDER: Yes, Your Honour.
77 HER HONOUR: Do you consent to it being made, Mr Guy?
78 OFFENDER: Yes, Your Honour.
79 HER HONOUR: I will ask Mr Halphen to take that down to you, and once you have checked those conditions, to sign it acknowledging your understanding of it. The address on that is the address that you just gave when you were arraigned, the Katoomba Crescent address. That is your correct address, is it not?
80 OFFENDER: Correct.
81 HER HONOUR: Yes, thank you. Whilst that is being done I will make the compensation order sought. That you pay $138,049.08 in compensation to Chas Cole Cellars of 395 Moorabool Street, South Geelong.
82 (Orders signed and acknowledged.).
83 HER HONOUR: I have also, Mr Guy, been asked to make an order under s.464ZF of the Crimes Act in relation to the taking of a forensic sample. I am satisfied that the seriousness of the offending, or the circumstances of the offending, warrant the making of the order and I propose to do so.
84 I am directing that that sample be taken by way of mouth swab or buccal sample. That means you must provide a sample by rubbing a swab, like a cotton bud, on the inside of your mouth until a sufficient sample has been obtained.
85 If you do not co-operate in the provision of that sample then the police are authorised to use reasonable force and may well use the more invasive means by which such a sample can be taken, namely, a blood test. Do you understand that?
86 OFFENDER: Yes, Your Honour.
87 HER HONOUR: Yes, thank you. Are there any further orders that are required to be made?
88 MR DOYLE: No, Your Honour.
89 MR HALPHEN: No.
90 HER HONOUR: Do the orders that I pronounce reflect what I said I intended to do?
91 MR DOYLE: Yes.
92 MR HALPHEN: Yes.
93 HER HONOUR: I am sorry - - -
94 MR DOYLE: Sorry, 6AAA.
95 HER HONOUR: Yes, 6AAA.
96 MR DOYLE: Yes.
97 HER HONOUR: I declare, pursuant to s.6AAA of the Sentencing Act that, but for your pleas of guilty, I would have imposed a total effective sentence of four years imprisonment and I would have fixed a period of two years as the time that you would have had to have served before being eligible for parole.
98 Could you remove Mr Guy please and please adjourn. I have signed the compensation order. I will stand down and sign the 464ZF order and then hand it down.
99 MR DOYLE: Yes, Your Honour.
100 HER HONOUR: The CCO is there. A copy of that will be provided to you, Mr Halphen, for provision to your client.
101 MR HALPHEN: Thank you, Your Honour.
102 HER HONOUR: Thank you again for your assistance.
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