Director of Public Prosecutions v Hansen
[2023] VCC 87
•3 February 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-21-02190
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LAURITS HANSEN |
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JUDGE: | Her Honour Judge Hampel | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 October 2022 | |
DATE OF SENTENCE: | 3 February 2023 | |
CASE MAY BE CITED AS: | DPP v Hansen | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 87 | |
REASONS FOR SENTENCE
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Subject:Criminal Law
Catchwords: Sentence – Theft from employer – offending spanning 6 years – concealment – breach of trust – family hardship
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:
Sentence: Total Effective Sentence of 7 months and 14 days – 300 hours unpaid community work
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms V Worrell | Office of Public Prosecutions |
| For the Accused | Mr P Dunn KC | Doogue & George Criminal Lawyers |
HER HONOUR:
1Larkfield Estate group is a privately owned conglomerate of operating companies and trusts, which was established in 1972 to manage the interests of the late Frank Hargrave and his family.
2In 2007, you, Laurits Hansen, commenced working for the group as its financial controller. By 2012 you had been promoted to its Chief Financial Officer, and the following year, in 2013, you were entrusted with additional delegated responsibilities from the CEO. The prosecution summary set out those additional responsibilities in these terms:
Involvement in company management decisions. He was trusted by clients to help them set up private banking arrangements and was given access to their bank accounts for the purpose of delivering financial accounting services. He had access to company accounts with [various banks]. He was a dual authorised signatory of all bank accounts for the company and could use client identification and passwords to access them and complete online transactions.
3You remained employed in that capacity as Chief Financial Officer until your employment was terminated by the CEO in September 2019.
4You have now pleaded guilty to stealing a total of $271,000 from three individuals or entities associated with the Larkfield group over a 6 year period, between October 2013 and July 2019. The dishonesty commenced soon after you were promoted to the role of Chief Financial Officer, and were entrusted with access to bank accounts of individuals and entities associated with the Larkfield Group. Your dishonesty continued until shortly before some of your thefts were discovered and your employment was terminated. The discovery came about in these circumstances:
5In August 2019, an accountant working for the company alerted Mr Ades, the CEO to some payments made from one of the Group accounts, La Chinesca Pty Ltd, a business run by Mr Robert Hargrave. Mr Hargrave, when asked about the payments, did not recognise them. Mr Ades eventually asked you about them, and you falsely asserted they were private transactions made by Mr Robert Hargrave. You sought to deflect Mr Ades from further investigation, when he told you that for governance purposes the transactions had to be traced, and that he intended to engage an independent investigator for that purpose. It was only then that you admitted that you were the beneficiary of those payments.
6You told Mr Ades you had taken (that is stolen) money from the La Chinesca account only, and that the total amount taken (stolen) in the previous year was approximately $80,000. Whilst you had an accurate recall of the amount stolen in the previous 12 months, your thefts had not been limited to that account or the past 12 months..
7A forensic audit revealed you had stolen:
$31,000 in two separate transfers to your benefit from the Built by Joost accounts. They related to a business operated by Mr Greg Hargrave. The two amounts were stolen in October 2013 and February 2014. They constitute the rolled up charge, Charge 1, to which you have now pleaded guilty.
The forensic audit also revealed that you had stolen $7,000 in a single transfer in between the two Built by Joost transfers, in December 2013, from an account in the name of Emma Hargrave. That constitutes Charge 2 of theft to which you have pleaded guilty. The audit finally revealed that a total of $233,000 had been stolen from the La Chinesca account in 29 separate transfers, between April 2015 and July 2019. The individual amounts varied between $3,000 and $20,000. You accessed Mr Robert Hargraves's personal line of credit to transfer money to the La Chinesca account to cover some of those payments. Those 29 separate transfers related to La Chinesca constitute Charge 3, the rolled up charge of theft, to which you pleaded guilty.
The audit revealed that the moneys were dispersed amongst four credit cards and one bank account in your name, and one bank account in your wife's name. The prosecution summary asserts and makes it clear that your wife had no knowledge of any of this.
8This brief summary reveals significant and sophisticated levels of deception and concealment.
9When you first acknowledged that you had been stealing from the group, you promised to repay the money, and said you would be able to do so in days. You did not, and the evidence before me indicates you had no prospect of being able to repay any of the money from your own resources, not even the initial $80,000 that you had acknowledged, let alone the full amount of around about a quarter of a million dollars that you have now admitted to. Some restitution, $36,000, has been made, but it came from your parents' money, not yours.
10Although the matter was promptly reported to police, it was not until a year later that you participated in an interview with police.
11You made admissions to 'taking' money, and said:
I can’t tell you specifics of individual transactions. Along the way, I’ve tried not to think about it.
When asked what you did with the money, you said:
I wish that it was easily explained with some sort of gambling problem or addiction. I've had a look through statements, a great deal is just everyday expenses, just living expenses, you know, medical bills, car repairs, groceries. I haven’t gone through it with an absolute fine tooth comb but I don't, as we sit here today I don’t own anything or have any assets, I don't have any money in the bank. I've run out of money this week, I don’t have anything to show for it and I haven't lived a crazy lifestyle. I know it's a lot of money.
12When asked how you felt about it, you said:
I have a lot of regret and I've deceived a lot of people.
13These offences are, as the prosecution submitted, and defence counsel conceded, serious offences and your moral culpability is high. The amount stolen, was substantial and the period over which it was stolen, protracted. You were in a position of trust, not only as Chief Financial Officer but because over the 12 years of your employment with the Larkfield Group, you had developed relationships with the Hargrave family and the small group of employees who supported the Larkfield Group. You were paid well during that time, handsomely, a salary of $200,000 by the end, from a starting salary of $160,000. In addition, you were throughout your period of employment, paid substantial and generous bonuses. And also in the periods when your wife's mental and physical health had deteriorated, or when your children needed extra care and attention, the Hargraves and the Larkfield Group paid you substantial further amounts to assist you, and your fellow employees and the Group generally willingly adjusted your working hours and conditions to accommodate those additional responsibilities for your family.
14You were looking these people in the eye and benefitting from their generosity whilst you were stealing from them and deceiving them.
15The nature of the relationship, as well as the formal position of trust, therefore make this a grave breach of trust. These offences are serious examples of their type. Not only because of the gravity of the breach of trust, but also because of the amount stolen, the duration of the offending, the number of separate transactions (32 in total across the three charges) the sophistication of the steps you took to conceal the thefts (including spreading the payments over the number of accounts in you and your wife's name, the use of three separate Larkfield accounts at different times to take the money, and the varying of the individual amounts taken so that no pattern was apparent.
16There is therefore nothing mitigating in circumstances of the offending itself. Despite what you said to the police, this is not a case of need. You were, as I have noted, handsomely paid, a starting salary of $160,000, an end salary of $200,000 is more than double the average earnings for a person in full time employment. That you have nothing to show for it, and appear to have frittered it away on living simply indicates irresponsible indulgence in supporting a lifestyle that you could not afford. Most working families, including single income families with three children like yours, manage a comfortable lifestyle, providing for their needs on substantially less than what you earned even before considering the combination of what you earned and what you stole.
17It is clear therefore that subject to matters personal to you, just punishment, denunciation and deterrence, both general and specific, play a significant role in sentencing.
18What then is relied on to temper or mitigate the weight to be given to those significant sentencing considerations?
19There is a number of what I might characterise as non-controversial matters. That is not to devalue them, but rather to indicate that there is not any great contest about their applicability as general principles and in the circumstances of your case. They are delay, your absence of prior convictions, the loss of your career path and reputation, and your early plea of guilty including the impact of COVID on any ultimate disposition. But the plea, having dealt with those matters, was centred around the significance of family hardship.
20I will deal with the non-controversial matters before returning to family hardship.
21Despite the admissions made by you to Mr Ades when you were first confronted, only a week or so after the discovery of the initial discrepancies and only a couple of months after the last withdrawal, it was not until July 21, that is, 18 months after you were interviewed, and nearly three years since the thefts were discovered that you were charged. This delay from the initial disclosure, to the formal process of the interview, and ultimately the laying of charges I accept, has weighed heavily on you, is a delay not of your making, and should be taken into account.
22You entered your pleas at what I accept is the earliest possible opportunity, that is at the first committal mention and you were promptly committed for plea and sentence to this court. Despite what might be characterised as the strength of the case against you and the admissions that you made when you spoke to Mr Ades and when interviewed, your early plea of guilty, and your cooperation both with police and with the court process, must clearly be given some significant weight. The plea carries utilitarian value, it facilitates the course of justice, and that is something that carries additional weight because of the backlog in the court due to COVID-related delay. I also accept that your plea of guilty is an acknowledgement of acceptance of responsibility for your wrongdoing.
23It was also put that the plea was evidence of remorse. I have some reservations about whether you are genuinely remorseful for what you have done as opposed to being sorry for the consequences for yourself and your family. Immediately after you were exposed, you confessed. You expressed remorse, but I do find it hard to accept that the remorse you expressed is any more than empty words. It sits uncomfortably with the persistent and barefaced pattern of behaviour now revealed by the offending itself. Your immediate promise to repay the sums stolen was an empty one. You had lied about how much you had taken, and you had no means to repay even that amount. The only reparation (the $36,000) that has been made, came from your parents' bailing you out and that was paid by them dipping into what they had saved and clearly need for their retirement.
24You were assessed by the psychologist, Dr Evans, for the purpose of the plea, and it is hard to see, despite what she noted in her report, namely that you are capable of reflecting on your actions with regret, remorse, and embarrassment, that that remorse does extend beyond being sorry for having been found out, and for the consequences for you and your family, of exposure.
25Despite those misgivings that I have expressed, I accept that you acknowledge that what you did was wrong, and indefensible, and so I will treat your guilty plea also as evidence of remorse and give it weight accordingly.
26Coming back to delay, there has been further delay since you were committed for plea.
27Your first plea hearing was listed for 22 May, less than a year after you were charged. In court terms, that is a relatively speedy time from charge to it being before the court to be ultimately dealt with, but that is relative for those who are working in the court system. That additional year is clearly a burden that hung over your head, not of your making and which I take into account. However, your plea was not heard on that date. It was adjourned due to counsel unavailability, and the next listed date that it was given again due to court backlog, was October 2022, so that was a further nearly six month delay, and there have been a number of adjournments since the plea was heard in October. These were adjournments made at my suggestion but were suggestions accepted by you or your counsel on your behalf, in order to conduct further enquiries and to see what else could be done to ameliorate the hardship likely to be caused to your family. So whilst they were delays admittedly precipitated by me and only accepted by your counsel after I had suggested it, I do not say that is a fault on your part. But it is an additional delay before the matter has been brought to finality, which again I accept, has weighed heavily on you and must be taken into account.
28You are now 45, and the offences were committed when you were aged between 36 and 41. You have no previous convictions, and I am told no other charges have been dealt with in that intervening period or are pending. So you come before the court as a first offender at the age of 45. You come from what appears to be a good and supportive family, they were well enough off to give you a good, private school education. You completed a Bachelor of Business at Deakin University. You obtained a cadetship at what became one of what is now a top four accounting firm, and you qualified as a chartered accountant. You spent 12 years at that firm before you left there in order to find employment that was more conducive to married life and parenting a young and growing family. So you have worked 12 years at a 'big four firm' and then 12 years in total with Larkfield. All of that I accept evidences good character, the capacity to benefit lawfully from the advantages afforded by a supportive family, good schooling, good education, the capacity to complete school and tertiary study, to obtain professional qualifications and to hold down for sustained periods, meaningful employment in your chosen career. All of that you are entitled to have taken into account in your favour.
29However, it must also be said that it was that very good character and capacity to hold down sustained professional employment that enabled you to obtain that position of trust and to breach it. Good character counts for less in those circumstances, the authorities make that clear. However, it does show that you have been brought up with values of honesty and decency, and that you have the capacity to engage in meaningful employment in the future, should you choose to do so, and that clearly counts favourably when assessing your prospects for rehabilitation.
30Also counting favourably in terms of assessing your prospects for rehabilitation, is Dr Evans’ psychological report noting that you have no clinically diagnosable mental health or cognitive disorders. That means there is nothing that might explain or mitigate your behaviour, but it also means there is no impairment to being able to engage meaningfully in employment and to seek to benefit from the advantages that you have had, and that so many others have not had, in your upbringing and your working career. Whilst you are at the moment being treated for depression and you exhibit levels of distress and anxiety, those are not at clinical levels according to Dr Evans and are consistent with the stressors that would be expected for somebody facing the consequences of such misconduct and being caught up in the criminal justice system as a result.
31It is clear, and it was acknowledged that usually, offending of this nature, in this amount would call for a period of imprisonment and the period of imprisonment would be one where a head sentence and a non-parole period would be within the appropriate sentencing range, that is, an appropriate exercise of sentencing discretion.
32But your plea was put, and very powerfully put, on sound evidence on the basis that your personal circumstances, or rather, those of your family, particularly your wife and your three children, two boys 15 and 11, and a girl now four, and to a lesser extent, your parents, your parents-in-law and your sister and her family, were such that imposing a term of imprisonment would result in exceptional hardship.
33It is clear from the material placed before me, between October and now, that your family's circumstances are indeed extremely challenging and the pressures that you face and they face are outside the normal range of what one might expect and what most people live with or endure or have to cope with. I accept that exceptional hardship is made out, but I do not accept that that conclusion leads to the imposition of a wholly non-custodial sentence.
34In my view, the seriousness of the offending must be marked by the imposition of a term of imprisonment. It is clear that a finding of exceptional hardship does not automatically or inevitably lead to a totally non-custodial sentence. Depending on the gravity of the offending, exceptional hardship may properly be reflected in a reduced sentence of imprisonment, a vastly reduced sentence of imprisonment from that which would otherwise be appropriate. It may be reflected by a significant gap between a vastly reduced sentence and the non-parole period. It may be reflected by imposing a term of imprisonment and a community correction order with a significant punitive element, using the combination sentence to reflect the needs of just punishment, denunciation and deterrence, as well as encouraging rehabilitation. Or it may be in some circumstances, that a totally non-custodial sentence is appropriate. But I have come to the view that a term of imprisonment, coupled with a community correction order with a punitive component of unpaid community work is the just and appropriate outcome in this case, balancing all of those needs.
35In coming to that view, I have taken into account the matters that are relied on to establish family hardship, and which I accept, were, to a large extent, although perhaps not to such an extreme degree, in existence at the time of and over the whole period of offending. I was told in the course of the plea, that you had, for much of the period of offending, in effect been fulfilling the role of a single parent, including managing the special needs of your sons, and the care of a pre-schooler when your youngest child was born. You did that whilst in full time employment by Larkfield, during the period of offending, and you have managed since your employment was terminated, to do some part-time or casual work whilst still in effect being the sole carer or sole primary carer and responsible one for your children, and dealing with, and supporting as best you can, your wife in her very challenging mental health needs.
36However, it must be noted, that the prospect of your children suffering, being left without a parent or extended family with the capacity to care for them, if you were detected and imprisoned was not enough to deter you throughout that six years of offending. You took your chances, Mr Hansen, and you must bear responsibility for the consequences.
37I accept the evidence of the very serious mental health challenges that your wife is living with, and the need for her continued care at The Melbourne Clinic. I accept that means she is likely to continue to be unable to care for the children full time, or unassisted in the foreseeable future. The adjournments that I granted since the plea was first heard were in part to obtain more information but also in part to see whether she and her clinicians were of the view that additional time might be of assistance in supporting her to be able to care for the children full time were you to be incarcerated. That has not resulted in any improvement in her capacity to be able to be a full time carer for the children. I accept without reservation everything that has been put to me by her clinicians. Her circumstances and the family's circumstances are deserving of extraordinary compassion. I accept also what I have been told about the special needs of your sons, of the challenges they face and the support they need in day-to-day living, and how that has been managed with the help and support of extended family, schooling and other assistance. Again, one of the reasons for allowing additional time, was to wait for the provision of funding to provide child care for your still pre-school daughter.
38I also accept everything I have been told of the limited care that your parents can provide for your children, in large part because of your mother's dementia, and the challenges they have in living with that. I accept again, without reservation, what I have been told about the limited care your wife's parents can provide because of your mother-in-law's own health struggles and compromised mobility. I accept what I have been told about the challenges were your sister and her husband to be asked to assist, because of their own work and family commitments and the distance they live from where your children are living and at school.
39I have been deliberately general, and non-specific, in these descriptions I have just given in relation to your wife, your children and your extended family. I have done that not because I am devaluing any of it, but because I have taken the view that they are entitled to protection of their privacy. They too are unwittingly drawn into the consequences of your misconduct and they are entitled to have their privacy and dignity respected, rather than very intimate details revealed to broader public scrutiny in these reasons for sentence. But I want to make it clear, I have read carefully, and more than once, everything that has been put to me in relation to each one of them, and I mean it when I say I have given proper weight to everything that has been put to me. It is that balance between privacy and dignity on the one hand, and detailing specifics on the other that has led me to use such general language.
40As is often the case, and to a much more serious level here than in many cases, it is the families of offenders who suffer when a breadwinner or carer is imprisoned. But it is also important to bear in mind that this is not a case of a single, spontaneous or unplanned event, which carry criminal consequences which there was really no time or opportunity to contemplate or to drawback from before the offending was committed. After that first theft, you had another 31 occasions where each time you had to think about whether you wanted to do this, to acknowledge that it wrong, to think about the people you were deceiving and the consequences for your family, and on another 31 occasions, after that first time, you made that choice.
41This was a six year planned and persistent pattern of conduct, where the consequences for your wife and children could, and should have been foremost in your mind. That is why I consider, that despite the pitiful circumstances that have been put before me and that I accept in relation to your wife and your children, that although compassion and mercy for them clearly have to play a significant role, and the term of imprisonment that I intend to impose may seem derisory having regard to your offending, that that is why I consider nothing other than at least some term of imprisonment, immediately served, must be imposed.
42Let me just explain the structure of the sentence before I formally pronounce it.
43I have imposed individual terms of imprisonment for each of the three theft charges. The amount of them bear a proportionality to each other, that relates to the different amounts. But the imprisonment figure itself would not, were it not for these exceptional circumstances, be anything other than derisory for the nature of the offending. What I have sought to do is to have a proportionality between sentences for the three offences to reflect the amounts, the subterfuge, the different victims and the time over which they were committed.
44Given the much larger amount and the much larger number of transactions rolled up in Charge 3, I have attached a community correction order with a significant component of unpaid community work to the sentence of imprisonment. That attaches only to the third charge. The terms of imprisonment for Charges 1 and 2 reflect that they are separate offences, but part of a course of conduct. I have made the sentences for Charges 1 and 2 cumulative upon the sentence on Charge 3. Again, were it not for the exceptional circumstances, I would have imposed larger terms of imprisonment for each of the three offences and I would have imposed partial cumulation only in respect of Charges 1 and 2 with Charge 3. But because of the figures involved, the only way I thought I could, with intellectual honesty and rigour, acknowledge the need to reflect the different wrongdoing to the 3 separate victims of your theft, whilst fixing a sentence whose totality reflected the overall offending, was to impose complete cumulations between Charges 1 and 2, and Charge 3. So that is the structure I will now formally pass sentence.
45Laurits Hansen, on the three charges of theft, the two rolled-up charges, Charges 1 and 3 and the single transaction charge, Charge 2, to which you have pleaded guilty, you are convicted.
46On Charge 1, you are sentenced to be imprisoned for a period of one month.
47On Charge 2, you are sentenced to be imprisoned for a period of 14 days.
48On Charge 3, you are sentenced to be imprisoned for a period of six months' and then to serve a community correction order for a period of two years which commences upon the expiration of the imprisonment, and runs for a period of two years thereafter.
49The sole special condition of that community correction order is that you are to perform 300 hours of unpaid community work over that two years. The sole condition of the CCO being an unpaid community work component, it was not necessary to have you assessed for suitability for a CCO. It is still necessary though for me to have your consent to being released upon that CCO at the expiration of your sentence before I can formally impose it, and I will come to that in a moment.
50As I have now indicated, the sentences on Charges 1 and 2 are to be served cumulatively upon each other and upon the sentence on Charge 3 which is the base sentence.
51That makes a total effective sentence of seven months and 14 days and I declare that pursuant to s6AAA of the Sentencing Act, but for your pleas of guilty. I would have imposed a sentence of three years' imprisonment with a non-parole period of 18 months.
52I have also been asked to make a compensation order in respect of the moneys stolen. That was not opposed, and I make that. Now so as far as the community correction order is concerned, Mr Hansen, it is in these terms.
53The order is to last for a period of two years and commences upon completion of your term of imprisonment. There are mandatory terms that apply to all community correction 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. You must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing regulations. That means you must not be substance-impaired when attending at Corrections for any condition under your order and you must submit to drug or alcohol testing if directed to do so.
54You must report to and receive visits from the Secretary or delegate. You must report to the Ringwood Community Correctional Services Centre at 60 to 62 Maroondah Highway, Ringwood, within two clear working days after the commencement of the order.
55You must let a Community Correction 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.
56In addition to those mandatory terms, you must perform 300 hours of unpaid community work over the period of two years as directed by the regional manager. If you fail to comply with the unpaid community work component of the order, the Secretary to the Department of Justice or their delegate, may give you a direction to perform additional hours of unpaid community work in accordance with s83AU of the Sentencing Act.
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