Director of Public Prosecutions v Hatzichristos
[2012] VCC 211
•9 February 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-10-01829
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| XENI HATZICHRISTOS |
---
JUDGE: | HER HONOUR JUDGE COTTERELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 Jan 2011, 22 March 2011, 27 June 2011, 6 September 2011, 29 November 2011, 1 February 2011 | |
DATE OF SENTENCE: | 9 February 2012 | |
CASE MAY BE CITED AS: | DPP v Hatzichristos | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 211 | |
REASONS FOR SENTENCE
---
Catchwords:
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D. Plummer | Office of Public Prosecutions |
| For the Accused | Mr I. Crisp | Merhi & Associates |
HER HONOUR:
1 Xeni Hatzichristos, you have pleaded guilty before me to two charges of obtaining financial advantage by deception. The maximum penalty for that offence is ten years’ imprisonment.
2 The facts of the matter were opened by the prosecution and a summary of the opening was tendered as Exhibit A on the plea.
3 At the time of the offending which occurred between September 2008 and July 2009, you were an executive assistant to the general manager of Fresh Produce at Coles, having been employed by the Coles supermarket group for some nine years.
4 You were aware of the general manager's electronic security password and were thus able to authorise employees' cheques, financial transactions and expenses, as if you were the general manager.
5
In September 2008 you were provided with a corporate Diner's Club credit card in your own name, with usage restricted to business related expenses. You used that card to make 200 unauthorised transactions for personal goods and services, amounting to some $63,000 and approved those transactions using the general manager's security password. That is the basis for
Charge 1.
6 Between 12 January and 20 July 2009, you submitted 57 claims for work related petty cash payments, which were, in fact, your own personal expenses. Once again you approved the payment using the general manager's security password. As a result you obtained $39,877.49.
7 Your offending was initially detected in July 2009 and at a meeting with the investigating officers from your employer, you made full admissions.
8 Your employment was terminated and an audit revealed all your fraudulent transactions. The matter was referred to the police in January 2010.
9 You were interviewed by the police on 26 February 2010 and again made complete admissions, saying your motivation was the payment of your debts. You then pleaded guilty before me at this court on 24 January 2011. The matter remained part heard before me and was adjourned several times in order for you to fulfil a promise to repay your employer, which you eventually managed to do. Evidence to that effect was tendered to me in the form of a letter and settlement statement from your solicitors, Peter Arnheim & Associates. That was tendered as Exhibit 4, as I recall on the plea.
10 This is not the first time you have appeared before the courts in this state in relation to theft involving your employer. In 1996 you were convicted and fined $400 for one charge of theft from a shop and one charge of obtaining property by deception. That was offending of a relatively minor nature, certainly compared with what brings you before the court today, but indicative of a trait of dishonesty in your character. However, I note there has been no offending since that time until the matters which bring you before the court today.
11 Your own background reveals a disrupted and unhappy childhood, in that your parents separated when you were three years old. You lived for three years with your mother and step-father and suffered abuse at the hands of both. You were deprived of food and affection, and were at times locked in the cupboard.
12 At the age of six your mother rejected you and you were sent to live with an aunt. You remained with that aunt for some two years until you were eight years old and your father, who had remarried, took you to live with him and his new wife, and you had a good relationship, as I understand it, with your father, your step-mother and other children in the family.
13 However, it appears that you never had a close emotional relationship with your parents and around the age of 15 you became bulimic due to your feelings of emptiness and stress.
14 You married at 21 to a man who was violent and unfaithful and eventually abandoned you. You then remarried at 37 to a man who was supportive throughout the court proceedings, and in fact, gave evidence at one hearing. But I understand that in the last year as you endeavoured to sell your property the relationship has ended.
15 You have, throughout your adult life, been extremely hardworking, and you achieved promotions and positions of great responsibility in your employment with Coles.
16 A Dr Dasianaka, who prepared the psychological report, tendered as Exhibit 1 on the plea, indicates that on interview there was no evidence of formal thought disorder, although you were anxious and depressed. You expressed remorse in relation to your offending and expressed to him your determination to repay all the debts incurred during this period of offending and afterwards.
17 Dr Dasianaka diagnosed you as suffering from an adjustment disorder with anxiety and depression. He writes that you were made vulnerable to the offending behaviour by your traumatic childhood experiences, and further you have suffered from bulimia nervosa for a very long period of time. I take that into account in sentencing you.
18 You were placed on antidepressants and were referred to a psychologist, with whom you have had weekly contact. He concludes in his report by saying that your prognosis appears to be favourable, due to your high motivation to seek appropriate help.
19
Also tendered on the plea is Exhibit 3, where a number of reports from
Dr Carmel Fey, your psychologist, and in her final report dated 23 June 2011 she writes that you had been regularly attending. She further states in that report that during 2011 the pressure of the pending sale of your matrimonial home and your court appearances placed unmanageable pressure on your marriage, and you then severed your relationship with both your sister, your psychiatrist, and the writer herself at the time of the deterioration of the marriage.
20 She writes that at around that time you made an attempt on your own life, but indicates that you will now be continuing with those sessions on a weekly basis.
21 I take all those matters into account in that they demonstrate your willingness to receive treatment and to address the issues which led to your offending behaviour.
22 Also tendered was a report from Dr John F. Gill, a consultant in general and forensic psychiatry, dated 10 September 2010. In his conclusions, Dr Gill indicates that you have a longstanding pattern of severe personality difficulties, stemming from your early life experiences and deprivations, which led to your problems of bulimia, and indicates that your condition is associated with impaired self esteem, insecurity and compulsive behaviour.
23 Dr Gill formed the view that your offending behaviour was motivated by an inappropriate attempt to escape from the stress brought on by your severe financial difficulties, and your overwhelming fear and distress overcame you and prevented you from managing your problems. His opinion is that you are deeply remorseful for your offending and highly motivated to confront your psychiatric problems, as I indicated, as well.
24 He indicates your prospects for rehabilitation are very good, and there would be little risk of re-offending, if you were to continue your treatment, and I of course take those comments into account, together with the link he made between your psychological difficulties and your offending.
25 I further take into account in mitigation your early plea of guilty and those determined, and eventually successful efforts to obtain the funds to repay your former employer.
26 I am also required to take into account the principles of general deterrence, that is that other people in the community must be deterred from using positions of trust in their employment to enable them to enrich themselves by illegal means. This is, indeed, not unusual behaviour in our community, and any sentence I impose must deter the general public. However, I do accept that this requirement for general deterrence is slightly moderated according to the principles in Verdins case, due to those matters I refer to mentioned by your psychiatrist, Dr Gill.
27 I am also required to take into account specific deterrence, and that is that you, yourself, must be deterred from ever committing such an offence again, because I note that you are once again in a position of trust and handling other people's money and financial affairs. Because you have a prior conviction for stealing from your employer I considered very carefully this principle. However, I have concluded, given the material, psychiatric and psychological, that has been tendered in the court, together with the determined and concerted efforts you have made over this past year to repay your debts, and to rehabilitate yourself, that you are unlikely, indeed, to offend again. The devastating consequences of your offending, in my view, would certainly deter you from committing any such acts in the future.
28 I am also required to denounce your behaviour on behalf of the community, and I do so. You were clearly a highly trusted employee, and given
a privileged position with access to the means to defraud and/or steal from your employer. Our economy and the various businesses which are part of it cannot function properly if employers cannot trust the people they must necessarily employ and must entrust with such duties. The breach of trust and dishonesty by employees attacks the fibre of our community and will not be tolerated.
29 Finally, I am required to impose just punishment in all the circumstances, and in so doing I balance the matters put in mitigation on your behalf, together with those matters I have just referred to.
30 I also take into account the submissions of counsel, and those made by your counsel, Mr Crisp, I have already referred to.
31 Counsel for the Director of Public Prosecutions handed me some relevant case material, however I find that it was of limited value, and that each case has its own particular circumstances, and I must make my sentencing decision based on the particular ones which apply to you, your situation, and your offending, and I do so.
32 In weighing up all those matters, I have reached the conclusion that the only appropriate sentence is one of a term of imprisonment, however, in the particular circumstances of this case I find it is appropriate to suspend any period of imprisonment that you must serve, and to also impose a Community Corrections order in relation to Charge 2. In relation to that I have had you assessed and you have been found suitable. Would you please stand for me.
33 On Charge 1, I convict you and sentence you to two years’ imprisonment, wholly suspended for two years. On Charge 2, you are convicted and released on a Community Corrections order for a period of two years.
34 The conditions of that order will be that you perform 150 hours of unpaid community work, and I have kept that low in view of your considerable obligations in relation to your employment. Further, that you will undergo supervision and you will undergo treatment and rehabilitation in relation to your mental health issues.
35 You are to report to the Heidelberg Community Corrections services by 4 pm by 13 February. I will just explain to you the suspended sentence.
The purpose of imposing a suspended sentence is to indicate the seriousness of the offending and the purpose of suspending it is to give you that opportunity to continue your rehabilitation and become once again a useful member of the community. If you were to breach that by committing a further offence, for which you could be sentenced to a term of imprisonment, you will be brought back before me, and you would be sentenced to serve that period of two years imprisonment.
36 In relation to your Community Corrections order, of course if you are to breach that by committing a further offence or by failing to comply with the conditions that will be set up for you by your Corrections case manager, you would be brought back to court in relation to any breach, and you could be re-sentenced in relation to that.
37 I think that covers all those matters. In relation to s.6AAA, were it not for your plea of guilty, I would have convicted you and sentenced you to two years’ imprisonment, and I would have ordered you to serve nine months of that sentence before being eligible for parole, and I would have sentenced you in relation to Charge 2, to a term of imprisonment of 12 months and I would have ordered that to be served concurrently. Thank you.
- - -
0
0
0