Director of Public Prosecutions v Hanna

[2018] VCC 1010

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00362

DIRECTOR OF PUBLIC PROSECUTIONS

v

DONNA HANNA

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JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Melbourne
DATE OF HEARING:	29 June 2018
DATE OF SENTENCE:	29 June 2018
CASE MAY BE CITED AS:	DPP v Hanna
MEDIUM NEUTRAL CITATION:	[2018] VCC 1010

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Buckland	OPP
For the Accused	Ms H. Bate	James Dowsley & Associates

HIS HONOUR:

1Donna Maree Hanna, you have pleaded guilty to one charge of obtaining financial advantage by deception.  The indictment alleges one charge over a period in excess of two years with a total of $253,098 having been obtained by you on 186 separate transactions which are set out annexed to the indictment.

2You have no prior criminal history and the facts of your offending are set out in Exhibit A, the summary of prosecution opening.  I was informed by your counsel that I could treat that document as an agreed statement of fact.  I incorporated it into these reasons for sentence and sentence you on the basis of the facts therein contained.

3Very briefly stated, between December 2014 and August 2017, you transferred the $253,000 from your employer to your own account.  In each of the occasions you took steps to disguise what you were doing by the manufacturing of false accounting records.  So well did you disguise it that it took some time to unravel what you had been doing.

4When your employer did confront you in relation to your activities in August 2017, you made admissions to transferring money to yourself.  You said you could not say how long you had been doing it and you lied about the extent of your activities.  You took a number of steps to attempt to persuade your employer not to report the matter to the police but of course he did.

5I was informed today that fortunately the firm was insured and the insurance company has indemnified your victim against the loss that you incurred.

6That lesser figure of $13,933 which is the excess of the insurance claim and that the excess chargeable plus some accounting costs less a deduction for some entitlements that you were owed which are offset by the company against the amount that you owed them.  You have consented to a compensation order in the sum of $13,933.

7The police were in fact notified and you were interviewed on 5 November 2017 but you made a no-comment record of interview.

8Turning to matters personal to you.  Your personal history is set out in the report of Dr Aaron Cunningham and in the submissions of your counsel, Exhibit 1.

9It is fair to say that you have lived a disturbed, disrupted and somewhat troubled life.  You were born in Northern Ireland.  I will refer to the details of your prior life in a moment.

10You came to this country with three children.  You have obtained work.  You have got a marriage and a subsequent relationship but in essence carry with you the scars of your childhood and the sexual offending which you were subjected to as a young girl.

11You developed psychological conditions which are referred to by Dr Cunningham and in particular you suffered from post-traumatic stress disorder, generalised anxiety and depression.  Those conditions persist and as Dr Cunningham says, they are conditions that are likely to be exacerbated by any time in custody and I obviously take those factors into account and I will return to them later.

12Ms Bate, your counsel, made a detailed and thorough plea on your behalf outlining in detail your personal history and the steps that led to your offending.  As a result of your personal issues, the failure of your relationships and your psychological issues, in 2014 you commenced serious gambling online and it seems that that addiction led directly to your offending.  You repeated the thefts from your employer or your obtaining financial advantage from your employer in order to feed that addiction and pay the bills that you were confronted with.

13That offending continued over the - as I said, in excess of two years and as you frankly conceded would have continued had you not been detected because your gambling would have continued.  The bank records seized by the police demonstrate that much of the money you obtained from your offending was spent on online gambling.

14I take into account in your favour a number of factors.  Firstly, your plea of guilty.  I accept that that plea of guilty was made at an early opportunity, the earliest in fact and to some extent is accompanied by remorse.  It is difficult to determine whether your remorse is for your offending or for yourself.  Perhaps it is both.  You have certainly expressed remorse for your offending.

15By pleading guilty, you have spared the community the time and expense of what would have been a difficult and expensive trial and there was a significant utilitarian value in your plea.

16By pleading guilty, you are entitled to and shall receive a substantial reduction to the sentence you would otherwise receive to reflect that plea of guilty and I will return to that subsequently.

17I take into account your absence of prior convictions.  You have no prior convictions, you have no subsequent convictions.  You fall to be sentenced as a person of otherwise good character.

18I accept that your offending took place in the context of a gambling addiction.  That is an explanation but not an excuse for your offending.  That gambling addiction flows from the personal issues outlined to Mr Cunningham or to Dr Cunningham and as set out in your counsel's submissions.

19I have referred to your disrupted and dysfunctional family life and to you being allegedly the victim of sexual abuse at the hands of an uncle as a young girl.  That has caused and you have had major stress and disorder in relation to your mother.  You had a marriage breakdown as a result of your financial and psychological issues.  You have three adult children, you are a grandmother and as I understand it at present are living with one of your children and your two grandchildren.

20Your father died in 2011.  You have some persistent guilt in relation to his death and you have of recent times obtained counselling to assist with the issues you confront.  You have issues in relation to your failure or what you perceive as a failure as a parent in relation to your daughter particularly when she fell pregnant and you had suicidal tendencies in the past.

21You are clearly at present highly stressed in relation to the situation you find yourself in.  As I said, I take into account the mental health issues set out in Dr Cunningham's report and Limbs 5 and 6 of the decision of the Queen v Verdins ­referred to me by your counsel.

22I take into account the fact that you have offered to repay the money that is outstanding and consented to the $13,933 compensation order.  There is some prospect that you will be able to find a way to deal with that in the future.

23I accept your counsel's submission that your prospects of rehabilitation are reasonable.  Your absence of prior and subsequent conviction and the fact that you have undertaken some study - and the fact subsequent to the detection of these offences, the fact that you have undertaken counselling all indicate that your prospects are in my view reasonable.

24Your counsel submitted that I should impose a community corrections order in line with the decision of the Queen v Boulton in respect of your offending and one of the factors I have to take into account in sentencing you is the effect of your conduct upon your victims.

25Tendered before me are Exhibits B, C and D, victim impact statement from effectively your employers, Jonathan Robbins, Avril Robbins and Samantha Malkay, all of whom outline the emotional hurt they sustained as a result of your callous and ongoing breach of trust.  It is clear that you were regarded as a trusted employee, they looked after you in many different ways including your daughter and they feel hurt and betrayed by your conduct.

26They are fortunate that they were insured, as I said, otherwise the financial cost would have been indeed a lot more than what they have sustained.  Nonetheless, an insurance company has to pay your bill for the quarter of million dollars in round terms that has been lost.

27I take the contents of the victim impact statements into account in sentencing you.

28The law recognises that some offences can be dealt with by community corrections order, even serious offending and the decision of Boulton refers to some of that serious offending but the decision of Boulton also recognises that some offences are so serious that nothing other than a term of imprisonment can be imposed for the offending.

29It is possible to combine a term of imprisonment and an appropriately worded community corrections order but that requires the court to be satisfied that a term of imprisonment of up to one year is an appropriate penal or punitive aspect of the order.

30In my view, your offending falls to be as a very serious example of the offence of obtaining financial advantage by deception.  The amount of money involved is significant.  There have been greater amounts in these courts but $250,000 is a lot of money.  Your offending was protracted and persisted over more than two years and would have kept going if you had not been detected.  There are 186 separate occasions when you breached the trust your employer had in you.

31You have been able and sensibly on behalf of the prosecution to effectively roll-up your 186 offences into one charge of obtaining property by deception between dates but the quantum of the charge, the number of breaches of trust and the persistent ongoing nature of the offending, in my view, lead me to conclude that there is a serious example, an upper level example of the offence of obtaining a financial advantage by deception the maximum penalty for which is a term of imprisonment of ten years.

32I take into account the mitigatory factors to which I am referred that even despite those, I am of the view that your offending is simply is too serious to impose the penalty submitted by your counsel and indeed it is too serious, in my view, to impose a combination sentence that the prosecution indicated fell within range.  Nothing in my view but a term of imprisonment with a non-parole period is appropriate for your offending.

33Would you stand up please?

34On the one charge of obtaining a financial advantage by deception, you are convicted and you are sentenced to be imprisoned for three years.

35I order that you serve two years of that sentence before being eligible for parole.

36Pursuant to s.6AAA of the Sentencing Act I indicate that but for your plea of guilty, I would have imposed a term of imprisonment of four and a half years with a non-parole period of three years.

37I make the order that you pay compensation to Guyrobb Electrics in the sum of $13,933.

38Are there any other orders required?

39MS BATE:  No.  As Your Honour pleases.

40HIS HONOUR:  All right.  Thank you.  Would you remove Ms Hanna please?

41MS BATE:  Your Honour, can I please note some custody management issues?

42HIS HONOUR:  Yes.  Sorry Doug.  Keep her for a moment.  What are the custody management issues?

43MS BATE:  Your Honour, that she is it is in her first time in custody ‑ ‑ ‑

44HIS HONOUR:  Yes.

45MS BATE:  ‑ ‑ ‑ and vulnerable for that reason and she also is taking three types of medication of which she has the prescriptions and medication with her and can be placed into her property.

46HIS HONOUR:  All right.  So, I will have the prison returned.  I note both those factors that her medication needs to be assessed and it is her first - special care for first time in custody.

47MS BATE:  Could I also note, Your Honour, the diagnoses of major depressive order and suicidal.

48HIS HONOUR:  I will order a copy of Dr Cunningham's report be provided to the authorities.

49MS BATE:  Thank you, Your Honour.

50HIS HONOUR:  All right.

51MR BUCKLAND:  Sorry, I apologise, Your Honour.  As is a routine now in all these matters, the OPP seeks the ‑ ‑ ‑

52HIS HONOUR:  Four six four ZF?

53MR BUCKLAND:  ‑ ‑ ‑ 464ZF order.

54HIS HONOUR:  I will make an order that you provide a sample to the DNA database.  They come around and take a swab.  I am obliged to inform you that the authorities are entitled to use reasonable force to obtain that sample so it is in your interest to cooperate.

55All right.  Thank you.  Now, you can remove.  Thank you.  All right.  That is it.  Anything else?  All right.  I will adjourn until 10.30 Monday.

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