Director of Public Prosecutions v Harlow
[2020] VCC 1336
•25 August 2020
m
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 19-01747
Indictment No. K11443232
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Kimberley HARLOW |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 August 2020 | |
DATE OF SENTENCE: | 25 August 2020 | |
CASE MAY BE CITED AS: | DPP v Harlow | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1336 | |
REASONS FOR SENTENCE
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Catchwords: Theft from employer. $291,000 over approximately 13 months, with 132 individual transactions rolled up into a single charge. Continued to offend even when invoices queried. 30 years of age as at sentence. No relevant prior criminal history. Early plea. Remorse, strong efforts at rehabilitation including drug residential rehabilitation, clean urine screens, ongoing counselling and new job. Breach of trust.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms K Hamill | Office of Public Prosecutions |
| For the Accused | Mr I Crisp |
HIS HONOUR:
1 Kimberley Harlow, you have pleaded guilty to one charge of theft. You have no relevant criminal history before the courts. A single traffic appearance, a drive whilst suspended dealt with back in 2010 is of no relevance at all to my task and so I put that matter aside altogether.
2 You were born on 1 May 1990 and are 30 years old now. The offending occurred between November 2017 to December 2018 when you were 27 and 28 years of age.
3 The maximum penalty is 10 years' imprisonment.
Facts
4 On Thursday of last week, the prosecutor, Ms Hamill, opened this matter to me in accordance with an amended written prosecution opening dated 24 January 2020. Your counsel Mr Crisp told me it was an agreed statement of facts and for that reason I see no need to fully detail the circumstances of your offending. I will sentence in accordance with the agreed summary.
5 I set out only a brief summary of the facts.
6
The agreed summary discloses that you had been promoted to the most senior digital position, Head of Digital and Creative, at a small company called Essential Media Communications Pty Ltd. I will refer to it as “EMC” for short. It was a strategic communications agency with offices in Sydney and Melbourne.
You had been employed at the company since 2012 and were trusted. At the time of these events your counsel told me that you were paid around $123,000. You were then based in Melbourne.
7 You registered your own company on 10 August 2017. That company was called Condiment Creative Pty Ltd. You were one director, your then partner Ms Allegra Wilson, the other. You say in your various accounts that you had a legitimate purpose in setting up that company. Given the gap between registration and your first dishonest act, that does not actually seem unlikely.
8 I am certainly not able to find that the company was set up with fraud in mind.
9
However by 23 November 2017 you started tendering false invoices from Condiment Creative for payment by your employers. There were lots of different clients of EMC and the false invoices ranged from $300 to $11,090. So differing amounts, differing services. The company paid those invoices by electronic funds transfer into your company’s bank account. EMC had no idea that you had any association with that other company or that the invoices were false. That bank account had been opened on 20 November and it is plain and conceded by your counsel that this act of opening the bank account was with a view to receiving the payments, which of course you knew were fraudulent.
Your company had done no work at all. The invoices were totally false.
10 A staff member at EMC in May 2018 drew the invoices to the attention of the Chief Operating Officer, Ms Dubois but Ms Dubois noted that the purchase orders had been raised by you. She asked you about the services and you gave what appeared to be a legitimate response. You were trusted and so your dishonesty continued.
11 Your work performance had been deteriorating for a decent period and as a result, you were issued a first and final warning on 8 November 2018. Still the dishonesty persisted.
12 You were questioned by Ms Dubois about the cost of some of the services invoiced by Condiment Creative and the fact that they always seemed to cost more than expected but again your explanations were judged to be adequate. The chief operating officer had no digital experience. You were the head of that department.
13 You continued to steal even as you knew your conduct was under scrutiny. Even as you promised to lift your performance after the first and final warning issued on 8 November, you continued to steal. In the period after that warning you stole around $47,000. That was a period of only six or seven weeks.
14 Indeed, in the period after the issue had first been raised in May 2018, so from June 2018 until December 2018 you stole around $150,000.
15 The matter came to a head on 18 January 2019 when investigations disclosed that your wage went into a bank with same BSB as the company which had been invoicing EMC and then it was discovered after an ASIC search that you were a Director of that company which had been invoicing EMC. The writing was on the wall from that moment.
16
Further investigations revealed the extent of the fraudulent conduct. You came in on 21 January, were confronted, and to your credit, told the truth.
You co-operated and made a written statement and were dismissed, all within a few days.
17
The matter was reported to the police the day after your dismissal. The matter was passed on to the CIU in late February and investigations disclosed you had gone to Queensland. By that stage, you would have been a resident in drug rehabilitation at the Hader Clinic. You attended in this State for interview on
4 June 2019. You were charged and bailed.
18 You co-operated with the police.
19 Well of course, being bailed permitted you to continue on with your efforts at rehabilitation. Much of the material placed before me would not have existed had you not been at large in the community.
20 You had suffered a dramatic fall from grace with exposure as a thief in January 2019 and much of the plea focussed on your efforts to establish yourself thereafter.
21 Being bailed could have been problematic had you resumed drug use or committed fresh offences but that is not what has happened. You have done very well. But being bailed and doing as well as you have never provided any guarantee at all as to this case ending happily for you. You were always going to have to face this day of reckoning.
22 You pleaded guilty at the earliest opportunity.
23 All up you stole over $291,000, with 132 separate false invoices spread out over 13 months. The average amount taken was over $22,000 per month.
24 You have repaid the amount the company asked you to repay being the amount not covered by insurance which was around $21,632. That followed a letter from you in May 2020 seeking a repayment plan. However compensation is sought in the amount of $242,905.90 which represents the full amount of the theft less that $21,632 and less $26,912.10 which related to leave entitlements. It follows that there has been repayment of $48,544.10 with $242,905.90 outstanding.
Impact
25
There is a single victim impact statement which was read aloud on the day of the plea. You already had a very decent idea of the impact of your conduct and had recognised that in your letter of apology, even before the impact statement was filed. You described the huge damage from a business perspective.
You referred also to the sense of betrayal and the breach of trust and friendship. You were a trusted employee and working at a relatively high level. You were perceptive, for the impact is very much as you predicted. There was financial damage plainly, including a skyrocketing insurance premium. But it was the impact upon the company, upon the staff, upon the business. The reputational damage and number of hours spent by the executive uncovering the fraud.
All those things are impossible to actually quantify. You were given a great opportunity in a small company and the company was forced to disband the whole team and rebuild from scratch. Your crime has caused trauma, stress and a sense of betrayal. Staff had to cancel holidays and deal with the fallout. Sometimes a fraud of this dimension may bring a business to its very knees. That has not happened here but it is obvious that this was a sizeable loss prior to the insurers stepping in and making good the loss. Ms Dubois speaks in her police statement of the endeavour to find out why the digital department was not as profitable as it should have been. She used the quiet time in January 2019 to investigate and here we all are now as a result.
26 Anyway, I take into account the impact here. It has been large. You know that.
Mitigation
27
Your counsel, Mr Crisp conducted the plea on your behalf. He spelt out your family and personal background and emphasized your lack of any relevant criminal history at all. He filed a number of written exhibits including psychological reports from Ms Le Patourel and from Ms Glab. There were a range of other letters and references including from a Salvation Army financial counsellor Ms Eapen, from your father and stepmother, your current employer and from a host of people you have met in the course of your journey through drug rehabilitation. Also a couple of references from personal friends.
There was an apology to the Court as well as one written to your past employers. Also a letter from you dated 4 May 2020.
28 Mr Crisp made submissions about the reasons for your offending as well as the relative seriousness of this offence. He made submissions as to the relevant sentencing purposes. He conceded the significant breach of trust here. He told me what you had been doing since, with much of the written material evidencing your efforts at rehabilitation. Though not relying on delay, he was of course relying on your strong efforts in the last 18 months. He submitted that you had excellent rehabilitative prospects and a low risk of reoffending.
29 In mitigation, he relied upon:
· Your early guilty plea;
· The presence of remorse;
· Your co-operation with the police;
· Your co-operation with your employers;
· Once prompted by the Court, he relied upon an increased custodial burden owing to the response to the COVID-19 Virus;
· He relied upon the 5th limb of Verdins[1] being an increase in your custodial burden arising from your anxiety;
He placed before me the case of Caulfield[2]. He argued for a stand-alone Community Corrections Order though most of his submissions implied that a portion of imprisonment was highly likely. He argued that if a stand-alone Community Corrections Order was not open, that a prison term with release onto a Community Corrections Order was, and failing that, a gaol term with a non-parole period. He recognised it was a big ask to altogether avoid a jail term for an offence as serious as this one.
[1] [2007] VSCA 102
[2] [2019] VSCA 131
Prosecution
30
The prosecutor, Ms Hammill, did not really need to say much by way of submissions. She had prepared some succinct written submissions which
Mr Crisp made plain were not in any way controversial and which went through the many matters in aggravation and mitigation. The prosecutor pointed out the serious features of your crime including the scale, duration, level of sophistication as well as the high breach of trust. The prosecution recognised the mitigatory value of your efforts to rehabilitate. Ms Hammill placed before me a range of cases, none said to be directly comparable. Many of those cases referred to matters of principle. The Director called for a prison term with a
non-parole period.
Background
31 I will turn shortly to the various submissions but before doing so, will say something about your family and personal background. You background is set out in quite some detail in Mr Crisp’s outline of written submissions. It is also referred to in the report of Ms Le Patourel. There is also reference to aspects of it in your father’s letter as well as in your own letters. I accept that family background that has been placed before me, so see no need to repeat it all now. I said on the plea that there is no such thing as a perfect background. Well there isn’t. As you may appreciate, the dock is often enough occupied by people who have had disastrous or disturbing backgrounds characterised by a total lack of nurture, love and support. Of people with a complete lack of education and starved of opportunity. People who have, often enough, never had much of a chance in life at all.
32 That is not the position you fall into. Not by a long shot.
33 Your background was worse than some, far better than others. I take it into account as far as I am able to but it does not explain this offending at all.
34 You were born on 1 May 1990. You are now 30 years old.
35 You have no prior criminal history of any relevance at all and you call in aid now your past good character. That is part of your background. In that sense, the offending is said to be out of character but of course it spanned 13 months.
36 Your parents separated when you were a toddler. That created some significant issues for you as you grew up. No question about that. You grew up mostly with your mother but moved between the deep instability which existed in that household to a very much more stable life with your father, his partner and your step siblings, when you visited, as you did on alternate weekends and some weekdays in accordance with the custody arrangements. So there was a stark difference between those two households. Your mother had some serious mental health issues and plainly did not meet your needs. There was some dysfunction, some emotional and even physical abuse in her house and serious abuse at the hands of one of her partners for a couple of years, which you are only in recent times able to process and discuss.
37
It was by no means an easy childhood. When life takes a bad turn, I am sure it is not uncommon to look back on earlier events to see if there is some link or explanation. Probably every person who becomes addicted to drugs has a reason for first using and then continuing to use. I’m sure many look back in an endeavour to understand what events led to that unhappy state of affairs.
You probably look back and wonder whether resorting to drugs arose from some of those issues which have been described from your childhood, but it is probably impossible to ever know the answer with any certainty. Your father recognises the difficulties thrown up by the life you led at your mother's house. So too Ms Le Patourel in her report.
38 Despite these various setbacks, outwardly at least, you came out of it all pretty well and succeeded in schooling and in a sporting sphere. You worked at MacDonald’s for seven years from the age of 14 and were active in a range of extracurricular areas such as touch football, music and live theatre. You did well at school and went on from school to the University of Wollongong and obtained a good degree in communications and media studies.
39 Your first job post university was with EMC. You started as a digital campaign assistant in 2012 and progressed through the ranks to be the Head of Digital and Creative, the company’s most senior digital position. You were young, still only 24 or so, and heading up a team of five. Things were tracking very well.
40 On the personal front, you had ‘come out’ sexually whilst at university and had three same sex relationships including the last with Allegra Wilson who is mentioned in the materials, who also joins this WebEx hearing today.
41 There was some drug use as teenager, really just experimentation, with MDMA, ice and cannabis. You abused alcohol.
42 You tried cocaine as a 25 year old and that was the beginning of the end. It is said that you became indebted to drug dealers and received threats as to payment from dangerous people. That is a bit hard to swallow as you had a virtual inexhaustible line of credit by virtue of your ability to just create another false invoice. Why you would ever be threatened is a mystery and I do not accept on the balance of probabilities that it occurred. Mr Crisp submits that the offending can be explained as a result of your anxiety and depression, your cocaine addiction and the threats produced by that activity. I do not accept that is the explanation at all. I do accept that you were living beyond your means. This money was being used as your own and provided also to your partner who was not employed. Who amongst us would not want an extra couple of hundred thousand dollars a year tax free? Not many.
43 You say from the day you were exposed by your employer that you never once used cocaine again. That is at the same time both impressive and unimpressive. Impressive in that you have had such success, I do not down play that. But where was that effort and resolve in the lead in to drug purchases and the creation of false invoices. It was a very big step to exhaust your own funds from a salary of over $100,000 and then criminally dip into your employer’s funds. You were not powerless. You knew how serious a step it represented. Why could you not grapple with the serious addiction then? Anyway, I will come back to the motivation in one moment, as I do not accept your full account on the balance of probabilities. I suspect the account you gave to your employers in your statement at page 355 of the depositions is closer to the truth, with a large percentage of the moneys spent by you and Allegra on cocaine, alcohol, gambling and general living expenses. Your more recent letter even describes allowing others who were visiting your house to use cocaine for free.
44 So to put the explanation in its full context, getting cocaine that you could not afford, which you say you were being threatened in relation to by dangerous people, which you paid for with the proceeds of the theft from your employer, cocaine which you were making available to friends to use for free. It is not much of an explanation.
45 A large body of material is placed before me as to your efforts since you were exposed. I am not going to work my way chapter and verse through those materials. I have read them all and as I said on the plea, there is some very impressive material. I deal with that now broadly as the material demonstrates that you have taken very meaningful steps since being exposed in January 2019. You entered the Hader Clinic up in Queensland in February 2019 for the 90 day program.
46 Well that was residential rehabilitation and though no material was placed before me as to the limits upon your liberty at that facility, and no submission made as to how I might treat that period of residential rehabilitation, I am prepared to treat it in the way contemplated by the case of Akoka[3].
[3]Akoka v The Queen [2017] VSCA 214
47 You have continued on from your successful discharge upon completion of that 90 day program, with ongoing Narcotics Anonymous (“NA”), Alcoholics Anonymous (“AA”) and 12-Step meetings and with what is obviously a strong commitment to a changed life. The urine screens are all clean. There is material as to your having financial counselling, trying to get back some control of your life. Evidence of psychological counselling. The many sessions with Ms Le Patourel. She provides a favourable report. Evidence of counselling whilst at the Hader Clinic with an impressive report from Ms Glab. As I say, continued drug rehabilitation post completion of the Hader Clinic program, even taking positions in the organisational structure of NA, for instance in relation to a Sunshine Coast NA convention.
48 In fact, this long process of rehabilitation commenced when you spoke to a family friend Gerald McCormack in the wake of your world falling apart as it did when you were exposed as a thief in January 2019. He has written two letters and he describes speaking to you at your lowest ebb and being involved in your move to Queensland and your admission into the Hader Clinic. Of all that has happened since. You continue to work with him even on a voluntary basis in the disability support field.
49 You have done everything asked of you to turn your life around.
50 You have strong family support as evidenced by you father and stepmother’s excellent letter. You have re-engaged with your family. You have apologised and have paid back some of the money. You were back in the workforce and there is a strong reference from your current employer who knows of this case. You were doing well again. There is even a letter from your personal trainer.
Expert reports
51 I have already mentioned the reports of Ms Le Patourel and Ms Glab. I take into account each report. When read in conjunction with the other materials, they demonstrate the efforts you have taken to turn your life around. To gather some insight into your reasons for drug use and to forge a life ahead without drug use. They are very useful reports and each author is plainly impressed by your efforts. You are motivated. You are judged to have a low risk of relapse. I have mentioned Mr McCormack’s letters as well as the letters written by many of those connected up to you via either NA or the Hader Clinic. I am not going to quote slabs from the reports or letters. I see no point. They are very useful. They give me an insight into your continued efforts and as to how much you have changed already. An insight into how you feel about the offending, your shame and remorse for the crime you perpetrated, your hope never to descend into drug use again. Your positive mindset.
52 Your counsel concedes that there is nothing in any of the reports or in this case generally which reduces your moral culpability.
53 It was not clear to me whether your counsel was relying upon any of the principles from the case of Verdins as his written submissions did not mention the case, so I had to ask. Mr Crisp was explicit in saying that only the fifth limb from that case was relied upon. That is to say an increased custodial burden. He took me to the expert report of Ms Le Patourel and spoke of your generalised anxiety condition and the final sentence in the last large paragraph on the final page which said the following: “Incarceration will interrupt Miss Harlow’s therapeutic process and is likely to impede her recovery and exacerbate her symptoms”. The prosecutor queried whether it was sufficient to enliven Verdins.
54
It was a pretty sparse reference actually and in no way is it explained how your prison burden will actually be increased by any condition.
Further Ms Le Patourel has seen you on a number of occasions since first seeing you in June 2019 and one would expect that your earliest presentations would have been more problematic. You have since gone on to find employment and settle down significantly in your life. Still, you have some anxiety condition and so I will give that fifth limb some very modest weight.
55 Your various explanations disclose that you have had some issues with gambling as well as with alcohol and drugs. None of that is mitigatory. At best it is the context. You knew exactly what you were doing and you knew how serious it was. Of that there can be no doubt. But at least you have developed real insight and made big gains in terms of drug and alcohol rehabilitation. These are positive things. You have taken responsibility for your offending. Again that is conveyed in the reports and letters and that is also a positive.
Guilty plea
56
I will turn now to some of the other matters raised in mitigation by Mr Crisp.
The first of those is your guilty plea. You have pleaded guilty and you have done that at the earliest opportunity. I take that early guilty plea into account in mitigation of sentence. You have taken that early responsibility for your offending. The community has been saved the time, cost and effort associated with the conduct of a committal hearing in the Magistrates' Court or a jury trial up in this court. The various witnesses have been spared the experience of giving evidence in your case. You have facilitated the course of justice. That is also recognised by your consent to the compensation order and the steps you had entered into to repay.
57 I must pass a lesser sentence upon you than I would have imposed had you been found guilty by a jury.
58 As to the police, you came down to Victoria voluntarily to be interviewed.
59 You have co-operated with the police as the supplementary plea submission, your apology letter dated 1 August and Exhibit 10 makes clear and I take that into account in the mitigatory way I said I would in the course of discussions on the plea. Both parties had addressed me on that score. I see no need to say anything further on that topic.
60 I also take into account in mitigation your co-operation with your employers.
61 That cooperation was of significant value. You had provided details of your dishonesty to them and had signed the statement. That could be handed on to the police.
62
So I take that co-operation into account. Though the case was overwhelming, the strength of a case does not stop some people from running silly trials.
Silly trials which take enormous effort to prepare and conduct and that has all been saved here. So your plea is of high utilitarian value. You pleaded guilty last year and were committed to a plea date in February this year. The case did into settle amidst the pandemic at all. We are in the midst of it now but your case can be distinguished from the case often cited (Bourke[4]) where a contested trial lay ahead with many exclusionary arguments and the case settled in the midst of the pandemic. You had pleaded guilty last year and the pandemic had no role to play in that so it does not greatly add to the weight to be given to your plea. Unfortunately for you, the pandemic is upon us. I will take that into account in a different way. Your plea is important but not because of the global pandemic.
[4]DPP v Bourke [2020] VSC 130
Remorse
63
What then of remorse? You made a full confession to your employers.
You have backed that up by pleading guilty at the earliest stage. A guilty plea is often indicative of remorse. Here there is reference by many others to your evident remorse. Of the way you feel about your crime. I also have your letter of apology to the Court as well as your letter to your employers and repayment of some of the money. Also your co-operation with the police. I am satisfied that you are actually remorseful for your offending.
64 I take that into account in your favour.
Rehabilitation
65 I turn then to your prospects of rehabilitation. You have pleaded guilty at the earliest stage. You are remorseful.
66 You have co-operated with the authorities signalling that you have turned your back on that past life. I have the various references placed before me. I have the reports. I have all of your many efforts over a sustained period. Inpatient, outpatient, NA, AA. Counselling. I don’t think these things are window dressing for the plea. You sought to make large changes to your life, not to impress a Court, but because you knew how low you had sunk. You have come a long way since, have gained insights and have made a new life for yourself up on the Sunshine Coast. There are the handful of clean urine screens. Also the letter of your father and stepmother and your new employer. Also the other letters and references.
67
You will, I am sure, to a large extent be deterred by the fact of being sacked, arrested, charged and brought before the court. You have fallen a long way and ever since have been trying to pick yourself up and with real success.
The sentence I will soon impose will also serve to deter you.
68 You have no criminal history at all. The matter alleged is of no relevance at all to my task and as I said earlier, I put it aside altogether.
69 So you are of previous good character and call in aid your past good character. You point to all that you have done since this offending came to light. You have made significant changes to your life which is to your credit. Further, you have demonstrated in the past that you are obviously intelligent, prepared to work hard and motivated. They are valuable qualities which should set you in good stead.
70 This was, however, serious offending over a significant period. It was not some isolated act on one occasion netting that amount, but many separate and calculated dishonest acts targeting your employer. There is a high level of dishonesty and breach of trust here with over 130 individual acts of dishonesty rolled up into this single charge of theft. With a level of planning which is obvious here. False invoices, the bank account and siphoning away from that account to your own account or to your partner’s account. So, though a first offender, you have jumped in pretty deep here. Yes, dishonesty was out of character when we consider your past life but here we have a sustained period of dishonesty with over 130 serious acts. It was definitely part of your character in that lengthy enough period.
71
You were paid a decent enough salary, $123,000 per annum. Your conduct was not in any way driven by need. I do not accept the claim that you were being threatened by dangerous people. I put Mr Crisp on notice as to my strong reservations on that score and he chose not to call you. I am not satisfied on the balance of probabilities of any threats or any harassment by dealers.
The claim makes no sense at all and why would you keep bobbing up for more of the same? Anyway, I don’t accept your account of these shadowy dangerous figures or of any real need at all actually.
72 I am pretty confident your life was in disarray. I note the reference from the chief operating officer, Ms Dubois, as to the significant deterioration in your work performance which led in to the first and final warning issued in November 2018. So things were plainly unravelling in your life. I am sure your drug use will have had a role in that. I am prepared then to accept that drug use had a role to play in your decision to offend but it cannot be the complete answer. It is, by the way, not mitigatory and at best it provides only part of the explanation and the context.
73 It is always hard as a Judge to make a forecast as to the rehabilitative prospects of a person who has been addicted to a drug of dependence. Drug use is notorious for its ability to cloud a person’s prospects into the future. So much will always depend on the efforts taken by the person. Even when steps have been taken, making a judgment as to the likelihood of that person continuing to address that issue in the future is not easy. You have done very well to this point. You will surely know from your dealings with others in the rehabilitation process that relapses are not at all uncommon. You have at least sought meaningful treatment and we are now a fair way removed timewise from this offending with no fresh offending or any sign of relapse. That is a big positive and the signs are very good. In that way the delay has served you very well.
74 Mr Crisp argues that you have excellent prospects of rehabilitation. I am inclined to view your prospects very favourably but one has to have at least some cautious reservation here. You were not some silly teenager off on a youthful frolic. You were a mature woman, 27 or 28 years of age, seriously offending over a sizeable period. One would never have expected you would offend in the calculated way that you did and wind up in the dock of this Court and yet of course you did.
75 You have been in employment and with an understanding employer but of course that will be interrupted by the sentence I must impose.
76 One might seriously doubt whether you should ever be left in a position of significant trust again.
77 You are still young enough and will wish to obtain the best job that you can which is actually both perfectly reasonable and understandable.
78 You are not a bookkeeper or accountant where a criminal record or probity check would invariably be carried out. You would be best to disclose this unhappy chapter of your life as you did with your recent employer and have the potential employer take you as they find you and at least make their own informed decision.
79 The only reason I am a little bit guarded here as to your future prospects is because of the dimensions, the calculated nature of, and the duration of your theft and the role drugs are said to have played. Also the fact that you continued on with the offending even when the conduct came under question.
80
I believe however, that your prospects of rehabilitation are at least very good.
If you can abstain in the future from drugs, and that seems realistic and achievable from where I sit now, then those prospects would be excellent. Likewise, if you can abstain from drugs you would have a very low risk of reoffending. Those prospects will dip quite sharply should you resume drug use.
81 Viewed presently, relapse seems unlikely but I have presided over enough cases to know that can always change. You are being plunged into a life changing experience, being sent to prison as you have been.
82 Though delay was not a matter actually raised in mitigation, you do get the benefit of the delay in the sense that you have remained out of trouble and have seriously addressed your drug issues. I am sure that my assessment of your prospects of rehabilitation and risk of re-offence are far more favourable than would have been the position without those good efforts over that lengthy period. I am sure it cannot have been easy living your life in such a setting with the very uncertain outcome posed by this Court date. I give that aspect of additional punishment only very limited weight here. The fact is the case should have been finalised in February of this year at the latest.
Increased burden
83
Your counsel had completed his plea and had made no submission about the impact upon you of COVID-19. Fearing that your counsel may have overlooked it, as can easily enough happen, I raised the matter after he had sat down.
He then adopted what I had said. I accept that the COVID-19 virus and the response to it by those running the prisons does increase the burden felt by prisoners. It causes stress. It will increase your burden to some extent. It is impossible to know now precisely how it will impact upon you. There are some lockdowns in place in some prisons, but they do not exist across the board. Visits have been suspended and so too some courses and programs.
New prisoners have a period of 14 days isolation which is a very tough initiation ahead of you as a first time prisoner.
84 With a state of disaster declared a few weeks back in this State, it is hard to see any prospect of prisons returning to a pre-COVID-19 setting any time soon. Prisoners will be likely to spend less time out of cells, will not have access to in person visits or the full range of courses and programs and of course there is the worry of catching the virus in such a confined setting with no real autonomy or ability to socially distance. You have come down from Queensland where those risks were minimal at worst. You are now in Victoria, not just Victoria but Melbourne where those risks are the highest in the Country and in a setting where some cases have recently surfaced in a few of the male prisons.
85 Visits for you, even when allowed, will not be straightforward given the interstate location of many of those who might wish to visit you. Even when visits are freed up in this State, it may not be at all straightforward crossing State borders to visit this State.
86 I believe there is an increased custodial burden in this case and I take that into account in your favour. There is no such thing as a good time to be going to prison but this is a particularly bad time and you are going there for the first time. It is not easy.
The Offence
87
I have to consider the nature and gravity of your offending and see no great need returning to the details set out in the agreed summary. There are a number of aggravating features which are conceded. This was a flagrant breach of trust. The offence did not just happen. It took some planning.
Whilst I cannot find that your company was set up with fraud in mind, once it was set up, within a relatively short space of time, you determined to use it to facilitate this offending. You set up the bank account. You took quite calculated steps to avoid detection. You created false invoices. It was your department and you waved away concerns which had been raised. They bowed to your superior knowledge of your department and your knowledge of those who would be legitimately invoicing the company. It is startling that you continued offending in the face of concerns being expressed in May 2018 or in the face of the warning issued to you in November 2018. Even as you promised to pull up your socks in November 2018, you rattled off 10 more transactions netting over $47,000 in the lead in to Christmas. The first issue was raised in May 2018 and in monetary terms, over half of the total amount was stolen from that date onwards, with approximately 44 separate transactions. It was not massively complex offending but was sophisticated enough. The individual thefts were hidden by your false invoices and the lack of any identification of you with the company which was invoicing your employer. I suppose it was as sophisticated as it needed to be and it succeeded as you were in such a position of trust.
You batted away any queries.
88 You knew the systems in place and knew how to defeat them and did that for 13 months. Your offending was not isolated. There were 132 dishonest transactions over 13 months with a total just over $291,000. Money just frittered away. Not on some venture that might at least make such dishonesty understandable on one level, for instance to support a fatally ill or failing father or mother or to engage a surgeon for critical surgery or to stave off foreclosure on a parent’s mortgage or to fund placement into aged care. Something of critical importance. Though none of those things would excuse such conduct and it would still be dreadfully dishonest and a serious crime, that sort of motivation might at least be understandable in human terms and may even lend some reduction to moral culpability. There is nothing like that here. It was just frittered away to prop up your life. Drugs, alcohol, gambling, living expenses, just a never ending line of credit unknowingly extended by your trusting and unsuspecting employer. I am not satisfied on the balance of probabilities that this offending was driven by any actual need at all. Nor though can any I see any signs of a lavish lifestyle or signs of ridiculous or extravagant purchases. That is not what I see in the bank records that I viewed.
89 This was serious offending with no lessening of your moral culpability and with a range of aggravating features, as is conceded by Mr Crisp.
90 A person can steal a large sum of money with a single stroke of a pen or in a single EFT transaction. An alteration to a single cheque or a single fraudulent transfer can lead to a large loss. So something that might be a once off, an isolated out of character act. Here your dishonesty was ongoing for 13 months. All of that time you had a duty owed to your employer, a duty which you totally abandoned in favour of dishonest conduct to serve your own ends. Though we see larger sums, sometimes much larger sums, this sum itself was substantial. It was over $290,000.
Purposes
91
I turn now to make some comments about the purposes of sentencing and the various matters which I must have regard to. Sentencing would be so easy if all a Judge had to take into account was the rehabilitation of the offender.
Not many people would be locked up in such a setting. No court takes any joy in locking up a first offender who has favourable prospects, but we have to do it often enough. That is owing to the other purposes of sentencing which come into play and the weight which must be given to those other purposes when dealing with a crime as serious as this one.
92 My task is a much more complex one than just looking at what is best for you, as I hope you, your family and supporters will appreciate. I must give weight to other purposes of sentencing. To specific and general deterrence, to protection of the community, to denunciation and to punishment. Your future prospects are very good and I do not ignore that fact. Your rehabilitation, though still of importance, must surrender some ground to other purposes and general deterrence is an important purpose of sentencing in this sort of case, as is correctly conceded.
93 Of course, punishment is an important sentencing purpose here. I must impose a just and proportionate sentence in relation to your offending.
94 I must denounce your conduct. Denunciation is also important. This was serious criminal conduct targeting your employer in direct breach of your duties owed to that employer. You really should be ashamed of yourself. You are and that is of course a positive.
95
I must deter you from offending in the future. That purpose known by us lawyers as specific deterrence must be given some weight in my sentencing task.
You have favourable prospects into the future. You are only 30 years of age and will seek employment upon your release. I cannot know what industry you will be employed in. It is not inconceivable that you will wind up in some position of trust again. You already had, in the lead in to the plea, and were doing well.
96 You must be deterred from ever bowing to temptation again. Given the nature of this crime, its duration, its value, its high level of breach of trust and the role drug use played, I must still give at least some weight to specific deterrence. No doubt I would give it far greater weight in a case with an offender with relevant past criminal history or a history of breach of court orders. More weight in a case where there were less favourable future prospects and I thought there was a higher risk of re-offence. Of course, the favourable findings I make in your case serve to moderate the weight I give to this purpose. That just stands to reason. Still, some weight must be given to this purpose. I can’t just ignore it.
97 The same things apply to community protection. I cannot ignore this sentencing purpose either. It is still of some weight here, given the nature and duration of the crime but again, it would be given far greater weight if you had less favourable prospects of rehabilitation or if you had relevant prior criminal history or a higher risk of re-offending. There is a risk, there always is, but I judge it to be relatively low. The community has not needed protection from you in the past and you have taken some sizeable steps already along the path to rehabilitation.
98 So there can be moderation of specific deterrence and community protection. That is actually not that unusual in the setting of white collar crime where often enough there is no prior criminal history and favourable rehabilitative prospects. Often enough, decent steps have been taken along the path to rehabilitation in the lead up to Court.
99 General deterrence is in a quite different position. That relates to the need to deter others. It is an important purpose of sentencing in this sort of case, one involving white collar fraud. See Bulfin[5]. General deterrence will usually carry a particular significance and that is the case here. You were in a position of trust. You used that position of trust to offend against your employer. This sort of dishonesty offence is difficult enough to detect. That is often as a result of the trust placed in the offender, as occurred here. This court must send a loud message to other individuals in the community in positions of trust who may be tempted to offend in the way in which you did. The likelihood of a sizeable prison term may serve to focus the attention of someone first contemplating corporate criminality. See Dyason v The Queen [2015] VSCA 120.
[5][5] DPP v Bulfin [1998] 4 VR 114
100 The Courts must convey the message that this style of serious calculated dishonest conduct will be met with substantial punishment.
101
I must pay regard to the maximum penalty and the impact of your crime.
The impact has been sizeable.
102 I must also take into account current sentencing practices. That is not a controlling factor.
103
There is little point looking at the sentencing snapshot and statistics. For a start, statistical material always has limitations. The Sentencing Advisory Council Snapshot number 227 of 2019 for theft is of no value to me. Theft covers a wide range of different factual settings. Theft can involve a breach of trust but often enough there is no breach of trust at all. There can be differing amounts or durations or numbers of acts. Some indictments may roll up charges such as here into a single offence comprising many particularised acts. Some are in no way rolled up. There could be a single isolated act, taking this same amount of money. Statistics are silent on that sort of detail. Such statistical material is always silent about the individual features of the offence or of the offender.
All the details which might explain the sentence are omitted. They are just numbers.
104 I have looked at the Judicial College of Victoria new sentencing manual overview of cases dealing with theft at 6.1.1.1.
105
I have also looked at the cases to which I was referred by the prosecutor.
None is on all fours. There are differences in offence detail as well as in matters of aggravation and mitigation. There is no purpose conducting a line by line comparison of those cases with yours. That is not my task.
106 I have looked at the case of Caulfield[6] to which I was referred by Mr Crisp. Mr Crisp points to differences as between your case and that other case. Caulfield had a longer duration, higher value and serious impact. It also by the way had a lesser number of acts and a range of personal features which do not apply here. It is just one case. There are many others I have looked at including those in the JCV manual (6.1.1.1).
[6]Ibid
107 Mr Crisp points to the sentence in that other ‘more serious’ case of Caulfield and impliedly was arguing that you should do better than that other offender. That is not the way sentencing works.
108 Other cases do not provide the answer to my task. They are not precedents or authorities. There are always differences in the offending and in the personal circumstances and that is borne out by reading the various cases I was referred to.
109 I am not passing sentence in those other cases. What I have to do is pass an appropriate sentence in your case for your crime, a crime committed over a lengthy period and in a setting of a significant breach of trust and netting over $290,000. A setting where your conduct had been queried and you continued to offend. What occurred in Caulfield by way of sentence says nothing at all about what is required in your case. It does not present me with some ceiling below which I have to work to fix your sentence. There is no such thing as one correct sentence and another Judge in that other case might have permissibly imposed a different sentence in that other case. The same may be said of the various cases to which I was referred by the prosecutor.
110 The principles spelt out in these cases are far more important than the actual sentencing outcome and the high importance of general deterrence in white collar fraud or theft cases is a common thread running through all these cases.
111 Most often, a white collar criminal will have no prior criminal history. They will be in a position of trust. They will have, for whatever reason, bowed to temptation Maybe because of drugs, gambling, bad investments or the cost of supporting two households or sometimes ridiculous, extravagant spending and expenditure. There can be many reasons but almost invariably, once exposed, white collar criminals call in aid their past good character and the enhanced rehabilitative prospects that they will usually have. Well general deterrence plays a key role in this sort of matter.
112 Prison is a disposition of last resort. Mr Crisp urged me not to send you to prison at all. He referred me to the case of Boulton[7] and argued that a suitably conditioned community corrections order on its own might achieve all the purpose of sentencing. The Director challenged the availability of that outcome and called for a prison term with a non-parole period.
[7]Boulton v The Queen [2014] VSCA 342
113 I am not bound by the sentencing submissions made by either party. I have regard to them as I do to every submission made to me but at the end of the day, I have to exercise my own discretion.
114 That case of Boulton does not stand for the proposition that every offender for every crime should be admitted to a community corrections order either on its own or in combination with a prison term. A community corrections order is not a get out of jail free card.
115 As a matter of law, if a suitably conditioned community corrections order would achieve all the needs of sentencing in this case, then I would proceed in such a way. Section 5(4C) of the Sentencing Act 1991 would require that.
116 Of course, I have some level of anxiety and regret in interrupting your ongoing rehabilitation. Maybe even setting it back. Of removing you from a life which has been reconfigured and has regained its trajectory. As a judge in this court, I have an understanding as to how disruptive and even corruptive prison can be. Sending a person to prison really is a disposition of last resort. Those are not just words, that is the reality. Dealing with first time offenders who have committed serious offences is one of the hardest sentencing tasks befalling a judge.
117 The more serious the crime generally speaking the less weight can be given to rehabilitation. There are some tensions in play as between rehabilitation and general deterrence. But I cannot just focus on rehabilitation. It must surrender some sizeable ground to general deterrence in this case given the matters in aggravation.
118 In the case of Boulton, the Court of Appeal suggested that Judges in my position ask the following question:
'Given that a community corrections order could be imposed for a period of years with conditions attached, which would be both punitive and rehabilitative, is there any feature of the offence or the offender which requires the conclusion that imprisonment with all its disadvantages is the only option?’' [8]
[8] Ibid at [121]
119 Regrettably, I must answer that question in the positive in this case. I do not believe that it falls within my sentencing discretion to place you onto a standalone community corrections order for this serious offending.
120 It is plain to me that a stand-alone community corrections order could not achieve the various purposes of sentencing. General deterrence in particular is a significant sentencing purpose for white collar fraud and such a disposition would not pay anything resembling adequate weight to that purpose. What message would it send to others in a position of trust? Altogether the wrong one, as far as I am concerned.
121 I have no doubt that I must send you to prison. Not because I want to or because there is any enjoyment in doing so or because I believe it will make you a better person but because as the sentencing Judge, I am required to impose an appropriate sentence. The only appropriate sentence in this case involves sending you to prison. That is just the regrettable reality here.
122 The question then for me is for how long?
123 If a suitably conditioned community corrections order in combination with a term of imprisonment of up to 12 months less your pre-sentence detention would achieve all the needs of sentencing in this case, then I would proceed in such a way. My provisional view was that such an option was not open here. I have considered the availability of such an option since the plea was conducted last week. My provisional view remains unchanged.
124 It is still plain to me that it is not open to proceed in such a manner here. I must adequately recognise the nature and the gravity of your crime. I must pay adequate weight to general deterrence. It is an important sentencing purpose in this sort of case. So too punishment and denunciation.
125 You have only five days of pre-sentence detention to call upon. It follows I have, as the maximum period of prison to combine with a community corrections order, the period of a touch under 12 months. I do not believe that it is open to me to structure a sentence such that a community corrections order is even open to me. Such an outcome would not achieve all the purposes of sentencing. It would give inadequate weight to general deterrence, punishment and denunciation.
126 I believe I am left with no choice but to impose a term of imprisonment and to fix a non-parole period.
127
I will provide for your possible early release by fixing a non-parole period.
That is all it is, a possibility. Given the dimensions of the sentence I will soon impose, I am required as a matter of law to fix a non-parole period. Whether you are released on parole will be entirely in the hands of the Adult Parole Board. That has nothing to do with me. It is between you and them. I must fix the non-parole period and they will in due course consider whether you can be released on parole or not. I must act on the basis that you will serve every day of the head sentence that I will shortly pronounce and not even speculate as to the possibility of your earlier release.
128 I have engaged in a last look at the sentence imposed by this court to ensure that it is commensurate with your criminality and to guard against the imposition of a crushing term upon you. Your criminality was high here as is conceded by Mr Crisp.
Compensation order
129 There is a compensation order that is sought which is not opposed. Indeed, it is consented to and we had some discussion about that earlier before I commenced my sentencing reasons. I order that you pay pursuant to s.86 of the Sentencing Act that you pay to Dual Australia Pty Ltd the sum of $242,905.90 which is the outstanding amount. I authorise the attachment of my electronic signature to that order.
Sentence
130 Ms Harlow, I will now pass sentence. I am sorry I have taken so long getting to this point. However it has been important that I explain not just to you, but to your counsel, the prosecution, to the victim and to so many others, why I am dealing with you in the way that I am.
131
On the charge of theft, that is Charge 1 on the indictment, I convict and sentence you to a period of 33 months or two years and nine months' imprisonment.
As there is only a single charge, that is therefore the total effective sentence.
Non-Parole Period
132 I fix a period of 16 months during which you will not be eligible for release on parole.
Pre-Sentence Detention
133 There is a period of five days pre-sentence detention. That period is to be noted in the records of the court pursuant to s.18 of the Sentencing Act.
Section 6AAA
134
Had you pleaded not guilty and been found guilty by a jury in relation to this conduct, I would have sentenced you to a period of four years and five months' imprisonment. I would have fixed a non‑parole period of three years.
That s.6AAA statement is to be noted in the court records.
135 Let me just see if there are any other matters. Ms Hamill, any other matters I need to deal with?
136 MS HAMILL: No, Your Honour.
137 HIS HONOUR: Mr Crisp? No, all right. Well that completes the matter then. Mr Crisp will need to make arrangement I think to have a video style conference with you in due course to discuss the outcome today. Mr Crisp, I made a custody management direction the other day. I would not have thought there is a need for me to repeat that, is there?
138 MR CRISP: No, Your Honour.
139 HIS HONOUR: All right, well thanks very much then. Well that completes the matter then. So what I will have happen, now I will remain in contact with my staff for the moment but what I will do is I will have the court adjourn then to 10.30 tomorrow morning.
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