Director of Public Prosecutions v Harrington

[2017] VCC 1464

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-01034

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL HARRINGTON

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	10 October 2017
CASE MAY BE CITED AS:	DPP v Harrington
MEDIUM NEUTRAL CITATION:	[2017] VCC 1464

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M Sharpley
For the Accused	Mr S. Moglia

HER HONOUR: 

1Michael Harrington, you have pleaded guilty before me to one charge of being an agent who received secret commissions, contrary to s.176(1) of the Crimes Act 1958, and seven charges of giving a false or misleading receipt or account, contrary to s.178A of the Crimes Act.

2The fact underlying your offending in short compass, (and I hereby annex as an exhibit the prosecution opening to these sentencing remarks), are as follows.

3Throughout the period of this offending, which took place between 2006 and 2012, you were a registered tester with the Anglesea Complex, which was a contracted VicRoads provider and registered training organisation in respect of heavy vehicle training and assessment services.  You were employed by the Linfox organisations as a national operations training manager from December 2005 to your dismissal on 10 July 2012.  You carried out your role via the Anglesea Complex Pty Ltd, which was a Linfox registered company.

4A business operated by Linfox through the Anglesea Complex was that you, as an authorised tester through VicRoads to issue competency certificates in respect of heavy vehicle endorsements, were used to assess applicants who paid for training and testing to successfully pass their heavy vehicle endorsement course.  There were also a number of other authorised testers and trainers working for the Anglesea Complex and you were in charge of these employees.  The courses involved eye, theory and driving training and testing.  Once the Certificate of Competency was obtained, it would be presented with an appropriate fee to VicRoads for that person's driver's licence to be upgraded.  The testing and training was at first conducted at the Avalon Airport until August 2009 and then, after that, at the Linfox workshop facility in Laverton.  That facility did not operate on a Sunday.  Linfox provided a training facility for its employees for the various grades of heavy vehicle licence endorsements and as a business it offered courses to external persons who could then apply and undergo training and assessment for fees set by Linfox, the training and assessment part of which you essentially ran. 

5It is alleged, and indeed you have pleaded guilty to, between 2006 and 2012, issuing 25 Certificates of Competency for cash payments without fully accounting to your employer for the fees, and where those applicants were not required to undergo any form of training or testing.  In other words, you therefore received a secret commission which is of varying amounts per certificate issued.

6Charge 1 is, therefore, a rolled up charge in respect of those 25 certificates which totalled fees of $28,560 which you received. 

7It is further alleged that between 2006 and 2012, while acting as an agent for VicRoads in the capacity I have described, you deceived VicRoads by issuing 309 Certificates of Competency to people, knowing the information in the document, stating that they had successfully completed an approved training course and had licence test assessment with various trainers was false information and likely to mislead VicRoads.

8Charges 2 to 8 are, therefore, what are called rolled up charges in respect of 309 certificates relating to fees not received of $283,500.  Each of those remaining charges relates to you issuing certificates stating that particular participants had been trained by different testers, all of them employed by Linfox but who had not in fact carried out the testing and assessment but their certification described that they had.  Therefore, Charge 2 relates to certificates issued by you in which the trainer, Jeff Smith, was described as the assessor; Charge 3 refers to the trainer, Trevor Scott; Charge 4 refers to the trainer, Ian Butterick; Charge 5 refers to the trainer, Andrew Cini; Charge 6 refers to the trainer Rowan Munyard; Charge 7 refers to the trainer, Terry Nunn; and Charge 8 refers to the trainer, Eric Williams.  None of those trainers, in fact, carried out the testing and assessment attested to by the documentation approved by you.

9As I have stated, I annex the prosecution opening to my sentencing remarks.  It contains a far more complex and comprehensive description of this offending which continued on over a period of about six years.

10It is not alleged that you received the fees foregone yourself.  The only monetary amounts that you were alleged to have received amounted to the sum I have already referred to in relation to Charge 1, that being, as I have already said, the amount of $28,560.

11In April 2012, investigators from the Linfox Security Group commenced an investigation into the issuing of the heavy vehicle endorsement certificates issued through the Anglesea Complex by you and identified an extreme variance in competency certificates issued by you to payments recorded as received for such certificates between 2006 and 2012.  Investigations revealed that you began providing heavy vehicle licence endorsements to people introduced to you by a man called Blajko Nastevski, who is a co-accused in this matter.

12The prosecution opening details the audits for each year between 2006 and up to and including 2011 and 2012.  Ultimately the trainers who were named by you on the various certificates relating to Charges 2 to 8 were interviewed by investigators, those employees stating they had either not worked on the weekends when the certificates were issued, were on leave or were not authorised to complete the testing.  You also issued a further 16 Certificates of Competence and completed the appropriate paperwork indicating that an applicant had completed the required course whilst you in fact were on leave from this role. 

13You were stood down from your position by Linfox investigators on 26 June 2012 after the commencement of the internal investigation into licence endorsements which were issued between 2009 and 2012.  You were spoken to by investigators on three occasions, once in June and twice in July, by Linfox Internal Investigations.   You made partial admissions, I suppose is the best that it could be put.  You eventually met with Linfox investigators on 5 July, when you admitted to the incorrect issuing of Certificates of Competency between 2009 and 2012, stating that you were doing them for people who were organised through others and believed you had taken about $16,000 during that period.  You have since repaid an amount of $16,000. 

14You were interviewed by police on 21 February 2013 and, in that record of interview, confirmed your role and admitted that you were acting as an agent of VicRoads in your role as a licensed tester.  You declined to comment when questioned about the allegations, stating that it was impossible that so many certificates had been issued that could not be accounted for.

15As a result of the allegations, VicRoads were required to notify 784 people who they identified had been tested by you since 2005 and required that they be retested in the category of licence that they were originally issued by the accused.  This resulted in the following outcomes.

16One hundred and thirty-three passed the retest requirements; 144 surrendered the endorsement category; 267 failed to make an appointment and the endorsement was cancelled; 117 failed when retested and their endorsement was cancelled; 21 failed to attend a booked retest, their endorsement was cancelled; nine held an interstate licence; seven of those had a licence status which was not current; 64 were tested in a higher endorsement category by another tester; seven surrendered their endorsement prior to the investigation; and 15 Certificates of Competence were never presented to VicRoads for the issue of endorsement.  VicRoads paid for this retesting, which was in turn reimbursed by Linfox Anglesea Complex to the value of $90,000.  The maximum penalty for each of these charges is ten years imprisonment.

17A document was handed to me during the plea by the prosecution which the describes the vehicles which a person who obtained the heavy vehicle accreditation would be driving.  This began, the lowest was a light rigid vehicle which was a rigid truck, between 4.5 and eight tonnes; a medium rigid vehicle, not being a prime mover, above eight tonnes; a heavy rigid vehicle, not being a prime mover, with a minimum of three axles and a minimum 15 tonnes; a heavy combination vehicle, which consisted of a prime mover and a semi-trailer, with a rating of at least 24 tonnes; and a multi-combination vehicle, which has more than one trailer and has a weight of up to 62.5 tonnes.  So the accreditation being received by these drivers allowed them to drive a variety of heavy vehicles up to and including prime movers and the heaviest prime movers.

18I now turn to your personal circumstances. 

19You are 65 years of age and have no prior convictions.  You have a very good employment history and, since your dismissal from Linfox, have worked as a driver and are currently working as a truck driver for Wettenhalls. 

20I received a reference from Mr Groves, the Geelong Operations Manager, who said he first met you in 2012 when you were applying for a position with Wettenhalls, noting that on the day you were interviewed you began the interview by informing him of your history as a driver trainer and that there were currently charges of using misleading information on licensed documents pending.  He described you as an open and honest person on the day and said you presented so well that he employed you.  He said that you worked with that business for about two years, during which time he said, "His attitude towards compliance and safety, both on and off the road, throughout this time was commendable."

21You left Wettenhalls to take up another job, but then in January 2016 Wettenhalls won a new contract and Mr Groves made contact with you and offered you a driving position with the business, stating, "I required professional drivers of high standard, both in their technical skills and their driving behaviours that is courteous, safe and cognisant of their chain of responsibility obligations."  In other words, that was the basis on which he invited you to return to work for that company.  He described you as "a person who was involved in driving activities that are of a higher risk profile."  Mr Groves said, "He is committed to ensuring that the company is well-represented when out on the road and he has an exemplary conduct record during his employment with us." 
I acknowledge that that is an impeccable reference.

22You are a man who has been married for decades.  You have four children of that marriage.  They are all responsible, pro-social, contributing and hardworking members of the community.  You, yourself suffered some difficulties as a child in your young years.  You described to Dr Aaron Cunningham, a psychologist, whose report was tendered on the plea, a happy childhood.  You described a particular love of your father.  You described having to be pulled out of school due to financial difficulties and working on the dairy farm, and it is clear that you were then a very hardworking young man who worked very hard for his family on the farm, eventually moving into the driving industry, and worked for Linfox for many years, working your way up to the very responsible position that you held at the time of this offending.

23I have no difficulty in concluding that you are unlikely to ever appear before a court again, and it is quite clear that the offending that you engaged in over those six years was completely out-of-character from the man you had always been.  I have no doubt, and I accept, that you are truly remorseful for your offending.  I do not regard specific deterrence, that is, punishment designed to make you change your ways, as being in any way part of the sentencing exercise before this court.  I regard your prospects of rehabilitation as excellent. 

24Dr Cunningham noted a number of what he would call positive factors in this case.  The support of your family.  I notice that your wife and two of your daughters attended court to support you today.  You retain the regard of your current employer.  There was another reference which spoke highly of you. 
I accept that in all other aspects of your life you are a pro-social, contributing, law-abiding man.  My difficulty lies in sentencing you with the potential consequences of the offending that you engaged in.

25Your counsel, Mr Moglia, pointed out that in order to obtain accreditation and a licence for a multi-combination or heavy combination vehicle, the applicant must first have a licence for a light rigid, medium rigid and heavy rigid vehicle.  Nevertheless, at the end of the day your offending was, in terms of its potential effect, extremely dangerous.  Because of you and other persons involved in this offending, hundreds of persons were able to drive heavy vehicles on the roads, some of the largest and potentially most lethal vehicles we see on our roads, in some cases, clearly, for many hours at a time on long haul drives, who were not properly tested and accredited. 

26It was submitted to me by Mr Moglia that this was not a case (as is often the case), where the taking of secret commissions involved a corruption that saw the end of a vast organisation, such as a bank or a financial institution, where hundreds of persons lost their savings and there was a ripple effect of misery.  I accept that.  I do not regard you as a person of high status and importance who had an obligation to many persons below them in a complicated hierarchical structure, but in the work that you did, Mr Harrington, you had a responsibility to other road users.  Licences are there for a reason.  The particular requirements relating to heavy vehicle licences are there for a reason.  I commented during the plea, and I repeat that comment, this court has seen too many tragic examples of appalling injury and death caused as a result of poor driving by the very vehicles that were the subject of this heavy licensing system that was in place and which you were entrusted to administer.

27Your counsel told me that the appointment to the national position that you took was a very big jump for you promotion-wise, that there were a number of key performance indicators which you found stressful, that this began by way of you trying to keep up with the demands of that job.  Unfortunately, it then progressed into you taking payments for looking the other way or assisting in the verification of documentation that was false and that allowed people to go on the roads in these heavy vehicles without proper accreditation, training and testing.

28As I have said, the nub of the damage in this case is the potential danger you put other road users in over a period of years, and I cannot get around that,
I am afraid, Mr Harrington.  I just cannot get around that.  I do not think you are a greedy man.  I do not think you are a man who lived the high life as a result of what you did.  The Crown conceded there is no evidence of enrichment. 
I think you are a devoted family man.  I note that one of your particular concerns is that your wife has suffered from mental health difficulties for many, many years, continues to suffer from them and is particularly reliant upon you.  I accept that you are devoted to your family.  I accept that you are a good man, and a contributing man, and a man who ordinarily this court would never expect to see before it, particularly in relation to offending as serious as this. 

29I hope you understand what I am saying to you, sir.  I am not trying to be severe.  I am not trying to stand on a mountain and point my finger at you and say this is a lesson to you for breaking the law.  I am saying what I am saying to you because I am obliged as a judge to take into account the potential impact any offending can have on the community.  Now I cannot say that any of those persons who achieved false accreditation went out and caused horrendous accidents on the road, but the potential for it was very much raised because of your own actions.  I even doubt that you even thought that far.  But at the end of the day, that is what I am left with, that at the end of the day, that is why
I cannot accede to your counsel's submission that I should deal with you by way of a community corrections order or a wholly suspended sentence, but in sentencing you, I very much take into account the positive factors about you that I have just outlined.  I must also sentence you in a way which will deter others from similar offending.

30You are, I believe, a good man and I believe you are a man who probably never quite thought about the seriousness of what you were doing. It became routine.  Nevertheless, this cannot be allowed to happen.  Unqualified persons cannot be allowed onto this road, in their hundreds, to drive vehicles of this kind. I am, however, for the reasons I have outlined going to sentence you to a term of imprisonment which will be less than would otherwise be the case and will be partially suspended, sir.  May I say, it gives me no joy to sentence a man like you in the way that I feel that I must today.  Could you stand up, please, sir. 

31On each charge, you are sentenced to seven months' imprisonment. 

32I am sorry, could you have a seat, Mr Harrington.  I do apologise, I have got my maths wrong.  I am sorry.

33Thank you.  Stand up, please, sir.

34The base sentence will be the sentence imposed on Charge 1, seven months.  I order that two months of each of the remaining sentences be served cumulatively to the sentence imposed on Charge 1 and to each other.  That should give a total effective sentence of 21 months. 

35I order that 17 months of that sentence be suspended for a period of two years.  That means you will have to serve four months' imprisonment, Mr Harrington.

36In sentencing, I take into account your early plea of guilty.  I accept that you are remorseful for your offending.  I take into account the fact that you have no prior or subsequent convictions.  I also take into account that there was a five year delay in this matter being finally resolved, (largely that was attributable to the nature of the operation that had to be investigated by police and the vast numbers of persons that needed to be interviewed).  I also note that your
co-accused was dealt with in the Magistrates' Court and received a community corrections order for his offending. 

37In sentencing you, however, I also do take into account this was a breach of trust, not only to Linfox, your employer, but a breach of trust to VicRoads and a breach of trust insofar as the Victorian road users are concerned. 

38Thank you, sir.

39Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of 21 months and ordered that you serve a minimum term of 12 months, all right, sir.  So you will have four months to serve.

40OFFENDER:  Thank you, Your Honour. 

41HER HONOUR:  Thank you very much, Mr Harrington.

42COUNSEL:  As Your Honour pleases.

43HER HONOUR:  Please have a seat, Mr Harrington.  I also note that I have not dealt with the compensation today, because that does need to be finalised.  So, look, you just let me know, we will bring it on as a mention.

44MR SHARPLEY:  There's also the forensic sample application, Your Honour.

45HER HONOUR:  I don't think it's necessary.

46MR SHARPLEY:  As Your Honour pleases.

47HER HONOUR:  I know it's serious offending, but this is not a man who is, in my view, ever going to come before the courts again, nor was this a case where DNA would have been of any assistance.

48MR SHARPLEY:  Yes.

49HER HONOUR:  He has got no priors and at his age I just don't think it's appropriate, so I am not going to grant the application.

50MR SHARPLEY:  As Your Honour please.

51MR MOGLIA:  If Your Honour pleases.

52HER HONOUR:  Thank you, Mr Moglia, yet again for your extremely comprehensive and helpful plea.  Thank you, too, Mr Sharpley, I don't want to leave you out of that.

53MR SHARPLEY:  As Your Honour pleases.

54HER HONOUR:  Thank you, Mr Harrington.  I wish you well, sir.

55OFFENDER:  Thank you, Your Honour.

56HER HONOUR:  Thank you very much.  Yes, thank you. Would you rather
Mr Harrington was removed before I left the court?

57SECURITY OFFICER:  I don't mind, it's up to Your Honour.  If he wants to say goodbye, that's fine.

58HER HONOUR:  That's all right.  Very well then.  Thank you very much for that.

59COUNSEL:  Thank you, Your Honour.

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