Director of Public Prosecutions v Harder
[2018] VCC 881
•15 June 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-17-01862
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHARLES HARDER |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 June 2018 | |
DATE OF SENTENCE: | 15 June 2018 | |
CASE MAY BE CITED AS: | DPP v Harder | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 881 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Obtain property by deception – obtain financial advantage by deception – youth – good prospects for rehabilitation – breach of trust – full admissions to police – no prior convictions
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited: DPP v Abdo [2016] VCC 1624
Sentence: Community Corrections Order for a period of two years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J Malobabic | Office of Public Prosecutions |
| For the Defendant | Mr M McGrath | James Dowsley & Associates |
HER HONOUR:
1 Charles Harder, you have pleaded guilty to two charges of obtain property by deception (Charges 1 and 2) and one charge of obtain financial advantage by deception (Charge 3). The maximum penalty for obtain property by deception is 10 years’ imprisonment. The maximum penalty for obtain financial advantage by deception is 10 years’ imprisonment.
2 The circumstances of your offending are set out in the Prosecution Opening to the Plea to which no exception was taken by your counsel and I sentence you on the basis of the facts set out in that document. Your offending conduct may be briefly summarised.
3 You were employed by the Epping Hotel to work in the TAB section of the business. You commenced employment in March 2017 and were dismissed on 22 April 2017 as a result of the offending. You were 22 years of age at the time. You had worked in the hospitality industry for around five or six years. You were issued with a TAB license in June 2013 and a Victorian gaming license in July 2013.
4 You were the operator of the TAB console at the Epping Hotel and were playing “credit bets” through the TAB system on your own behalf without paying for the bets. The bets were placed on an animated TAB horse racing game with fixed returns called "Trackside". You were aware that TAB rules and polices prohibited staff betting on duty and that credit betting was illegal.[1]
[1] Record of Interview with Tabcorp Inspector: Q34,44,47.
5 On 18 April 2017, you placed an unknown number of bets on a Trackside game by submitting the bets through the TAB computer system. You did not use your own money to place the bets. You made a profit of $200. This conduct is the subject of Charge 1, obtain property by deception.
6 On the 20 of April 2017, between 5.48 and 6.00 pm and whilst on duty, you placed four bets on the Trackside game through the TAB computer system without using any of your own funds. This conduct is the subject of Charge 2, obtain property by deception. You made a profit of $1,750. You kept $1,200 of the winning bet. The remaining $550 was uncollected in order to balance out the till for the bets made.
7 On 22 April 2017, at approximately 5.30 pm, you commenced work in the TAB section of the Epping Hotel and were the only person working in the TAB section that night. Between 6.56 pm and 9.01 pm, you placed 47 bets on the Trackside game ranging from $50 to $12,000. You did not use any of your own money and placed all bets, totalling $136,670, through credit on the TAB computer system. You did not make any profit.
8 At 8.46 pm that night, the Audit Inspector for TAB received a venue liability monitoring notification that the Epping Hotel had breached its daily liability threshold. He alerted your manager, who noted that there were no patrons present, saw three large betting figures on the TAB terminal and immediately confronted you. You admitted that you were credit betting and that there was a significant shortage in the cash. You said that you were bored. You admitted that the terminal was “down 136 grand”. The total loss was $136,670. Your conduct on this day is the subject of Charge 3, obtain financial advantage by deception.
9 You were immediately dismissed from the Epping Hotel and the matter was referred to police.
10 On 26 April 2017, you were interviewed by a TAB Inspector. You said that you placed the bets on 22 April 2017 in order to get out of around $18,500 debt incurred after a car accident and some unpaid fines. You admitted to the inspector that you had placed illegal bets on 20 April, from which you had made a profit, and that you placed further bets on 22 April because you thought that you could keep winning. Once your first few bets on 22 April were unsuccessful, you attempted to “chase” your losses, which only compounded the debt. You stated that you were not in position to make any repayments.
11 On 11 May 2017, you were interviewed at the Mill Park Police Station where you made full admissions. You also admitted the offending that is the subject of Charge 1. You gave the following reasons for the offending: “I don’t know, like, I’d say financial stress, and I reckon probably just something to do at work. Just being a larrikin, just bored at work. There wasn’t much going on at the TAB.”
12 At the third committal mention on 13 September 2017, you indicated your intention to plead guilty. You have no prior convictions and no matters pending.
13 The venue manager of the Epping Hotel made a Victim Impact Statement in which she details how she felt stress and frustration at your offending when you were a valued and trusted member of her team, despite being employed only for a short period of time. She states that she has had to work very hard to rebuild morale and relationships between staff because of your offending. She now finds it difficult to trust people and her own judgment and fears the loss of her employment because of her staff hiring decisions. She is anxious that another staff member will take advantage of her.
14 The prosecution submitted than an aggravating feature of your offending was that it was a breach of your employer’s trust. On the other hand, the prosecution conceded that you pleaded guilty early, have been remorseful since being confronted with your offending and are a youthful offender with good prospects of rehabilitation. In all the circumstances, the prosecution conceded that the imposition of a Community Corrections Order with an unpaid community work condition would address all the relevant sentencing considerations.
15 You were supported at the plea hearing by family members and a friend. Your counsel tendered letters of support from your mother and two close friends from high school. Each of these letters indicates that apart from this offending, you are a hardworking, good person, helpful to family and friends, and very remorseful and ashamed of your offending. Your mother noted that you have been lost since being dismissed from the Epping Hotel and remain unemployed. You have been depressed and have found it difficult to become motivated.
16 I turn to your personal circumstances. You are now 23 years of age. You were born in New Zealand and have four younger siblings. Your family moved to Australia in 1999. Your parents did not finish secondary school but both have solid work histories and are still working. Your brothers all completed secondary school and are studying. You have had good physical and mental health and have no issues with drugs or alcohol.
17 You started working as a kitchen hand while in Year 11, and then worked in hospitality from the age of 18. You completed Year 12 in 2012 with an ATAR of 73, and commenced an economics degree at university but left in the first year. You obtained your TAB and gaming licences in mid-2013. You played for a rugby union club in 2012 and 2014. After leaving university, you worked full-time in hospitality, in distribution, and as a manager at a call centre. You started working in the TAB section at the Epping Hotel in March 2017.
18 Whilst your counsel conceded that your offending constitutes a serious breach of trust in circumstances where you were given the responsibility of managing financial transactions, he submitted that it occurred in the context of financial pressures you were experiencing when facing debts of around $18,500. He submitted that there were a number of unusual features of your offending. Firstly, it occurred over a relatively short period of time. Secondly, the offending which is the subject of Charges 1 and 2 involved relatively small amounts of money. Thirdly, whilst the offending which is the subject of Charge 3 was initially undertaken in order to keep winning and to pay off your debts, you never intended to steal $136,000 or so, but having lost on the first few small best, then got caught up in the next hour in a desperate attempt to recoup the losses, during which the losses increased exponentially.
19 Your counsel also relied on a number of matters in mitigation. Importantly, you admitted your conduct on the day when confronted by your manager, made full admissions to the TAB and to police and in fact revealed your own until then undetected offending which is the subject of Charges 1 and 2. Secondly, the magnitude of the offending which is the subject of Charge 3 was caused by your trying to recoup the early losses made on 22 April 2017. Thirdly, you have expressed remorse to all those you have dealt with. Fourthly, you pleaded guilty to the offences at an early stage. Fifthly, and very importantly, you are a youthful offender with no prior convictions, no pending matters, a supportive family and good prospects of rehabilitation. Your counsel submitted that you are able to do physical work, do not require mental health treatment or any other conditions, and that in the circumstances the Court should sentence you to a Community Corrections Order.
20 The basic purposes for which a court may impose a sentence are just punishment, deterrence both specific and general, rehabilitation and denunciation of your actions, as well as the protection of the community. In sentencing you, I must have regard to a range of factors such as the seriousness of your offending, your culpability for it, and your personal circumstances.
21 I am also required to balance the interests of the community in denouncing your conduct with the interests of the community in seeking to ensure, as far as possible, that you, as a youthful offender, are rehabilitated and reintegrated into society.
22 I am also required to take into account current sentencing practices in fixing your sentence. I was taken by your counsel to a number of sentences by this Court following pleas of guilt for dishonesty offending involving similar amounts. Only one of these cases[2], DPP v Abdo involved a youthful offender, but the offender’s conduct in that instance occurred over a six month period, involved a substantial direct financial benefit to the offender, and involved other offending. I consider that your case is to be considered in the light of its own particular circumstances, which include the short of offending period involved, the fact that you became caught up in chasing your losses, and the other powerful factors in mitigation including your revealing your own previous offending and your very substantial remorse. I note also that you are currently unemployed and are unable to make restitution, and I give appropriate weight to the fact that you are a youth offender.
[2]DPP v Abdo [2016] VCC 1624.
23 In cases involving offending such as that committed by you, specific and general deterrence are important considerations. Your offending does involve a serious breach of trust, albeit over a small period of time, involving more than 50 separate credit bets and a substantial amount of money.
24 On the other hand, I give appropriate weight to your plea of guilty which was indicated at an early stage, and which has saved the witnesses and the State the expense and inconvenience associated with a committal and trial. As I have also noted above, you have expressed great remorse for your conduct to the owner of the hotel, the TAB Investigator, to police, and to your family and friends. I accept that you are unlikely to reoffend and that you have good prospects of rehabilitation.
25 I note that at the time of offending you were 22 years old. You are now nearly 24 years old. As a youthful offender you are entitled to a disposition which promotes your rehabilitation, as this will assist you and serve the interests of the whole community. I note that the prosecution agrees that the imposition of a Community Corrections Order is within range and I consider that, on the material before me, there is no need for conditions concerning supervision, treatment or engagement in offender-specific programs.
26 In all the circumstances, I propose to sentence you as follows.
27 Would you please stand, Mr Harder? On Charges 1-3, you are convicted and placed on a Community Corrections Order for a period of two years. You will also be required to complete 100 hours of unpaid community work. In the light of the fact that no assessment was required by Corrections Victoria for your suitability to undergo such an order, I understand now that I am not able to direct that up to 50 hours spent in counselling may be credited towards hours of unpaid community work. On the other hand, this does not prevent you from getting some counselling independently through referral from your general practitioner if you need that support and assistance.
28 In addition to the unpaid community work condition that I have imposed, you must also abide by the terms that apply to all Community Corrections Orders. These are: that you must not commit any other offences during the period of the order being enforced - that is, two years from today - for which you could be imprisoned, even if a court would not choose to impose imprisonment. You must report to and receive visits from a Community Corrections officer. You must report to the Community Corrections Centre at Broadmeadows within two clear working days of today, which will be 19 June 2018. You must not leave Victoria without first getting permission from a Community Corrections officer, and you must inform the Community Corrections Office of any change of address, where you live or work within 48 hours of that occurring. Finally, you must obey all lawful instructions from and directions of Community Corrections officers. Do you understand all the conditions I have imposed and the general terms that apply?
29 OFFENDER: Yes, Your Honour.
30 HER HONOUR: I indicate pursuant to s 6AAA of the Sentencing Act1991 that but for your plea of guilty, I would have sentenced you to a period of 12 months’ imprisonment.
31 The prosecution has also sought an order pursuant to s.464ZF of the Crimes Act 1958 in relation to the taking of a forensic sample, and your counsel has resisted this order on a number of grounds. These are: your age; that the gravity of your offending does not justify the order; that the offending does not involve violence or sexual violence; that you have no prior convictions, no matters pending and that you are unlikely to reoffend. The prosecution sought the order on the basis of the gravity of the offending and the amount involved.
32 The making of a forensic sample order involves the exercise of a discretion. In the circumstances of this case, I accept the arguments made by your counsel and consider that your risk of reoffending is low, that you do not pose a danger to society, and that the gravity of the offending (being one of short-lived, opportunistic, dishonesty) does not justify such an order. For these reasons, I decline to make the forensic sample order sought by the prosecution.
33 Are there any other matters that need to be addressed?
34 MR McGRATH: No, Your Honour
35 MS MALOBABIC: No, Your Honour.
36 HER HONOUR: All right, in that case, my associate will just hand up the order to sign. Mr McGrath, did you want to approach your client?
37 MR McGRATH: Yes, Your Honour.
38 HER HONOUR: Thank you.
39 MR McGRATH: Thank you, Your Honour.
40 HER HONOUR: Thank you. We can adjourn.
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