Director of Public Prosecutions v Hingert
[2016] VCC 1888
•5 December 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-16-00864
CR-16-01629
CR-16-01855
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAUL HINGERT |
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| JUDGE: | HIS HONOUR JUDGE MASON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 4 & 5 August, 7, 8 & 16 November 2016 |
| DATE OF SENTENCE: | 5 December 2016 |
| CASE MAY BE CITED AS: | DPP v Hingert |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 1888 |
REASONS FOR SENTENCE
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Subject:Plea – sentencing
Catchwords: Theft - obtain financial advantage by deception - possess unregistered Category A long arm - pervert the course of justice - commit indictable offence whilst on bail.
Legislation Cited: Sentencing Act 1991
Cases Cited: Verdins v The Queen (2007) VSCA 102
Sentence: 28 months' imprisonment, 18 months non-parole period
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APPEARANCES: | Counsel | Solicitors |
| For the DPP at hearing For the DPP at sentence | Mr J. Saunders Mr S. Kenna | Office of Public Prosecutions |
| For the Accused | Ms T. Riddell | McDonald Murholme |
HIS HONOUR:
1Paul Hingert, on 5 August this year you pleaded guilty to one charge of theft, one charge of obtaining a financial advantage by deception and one transferred summary charge of possessing an unregistered Category A long arm.
2You were to be sentenced for these offences on 11 August. On the morning of the sentence the court was advised that the sentence would not be able to proceed because it had been discovered that the references provided by you in mitigation at your plea were false: they were in fact documents contrived by you.
3A new indictment was created for this offending, and a third indictment was created when it was discovered that you were also facing a charge of theft from a supermarket committed on 18 June 2016 whilst you were on bail awaiting your plea hearing on the original theft and deception charges.
4On 7 November this year you pleaded guilty to one charge of doing an act tending and intending to pervert the course of justice, another charge of theft and another transferred summary charge, this time one of committing an indictable offence whilst on bail.
- Theft carries a maximum penalty of 10 years’ imprisonment.
- Obtaining a financial advantage by deception carries a maximum penalty of 5 years’ imprisonment.
- Possessing an unregistered long arm carries a maximum penalty of 2 years’ imprisonment or 120 penalty units.
- Doing an act tending and intending to pervert the course of justice carries a maximum penalty of 25 year’s imprisonment.
- Committing an indictable offence whilst on bail carries a maximum penalty of 3 months' imprisonment or 30 penalty units.
5You were born on 13 August 1969 and are now 47 years old. You were 46 at the time of the offending in late November last year and the offending last August.
6You do have a criminal record, about which I will go into more detail later.
7The circumstances of your offending are as follows.
8As to the matters to which you pleaded guilty on 5 August 2016, you were employed as the branch manager of the Preston branch of the electrical wholesale company called Go Electrical Pty Ltd ("the company") as at 20 December 2010. The business was later relocated to Heidelberg West in August 2012.
9On 23 August 2012 your partner Kylie Major was appointed as the assistant manager for the Heidelberg West branch.
10The business of the company was in the retail of small to medium electrical items. If a customer returned a purchased item the initial sale price could be refunded in cash or to the credit card used to purchase the initial goods.
11In cases of a refund, a credit note would be prepared to record the purported return of returned goods. These credit notes detailed the goods returned by the customer, the customer details, account details, date and time of return, credit note number, payment method (cash or credit card) and the value of the goods refunded.
12The returns procedure was subject to a written company policy.
13By September 2012 the company noted discrepancies relating to stock that was missing and commenced an investigation. The initial investigation was conducted by a Mr Rod Nevin.
14Mr Nevin completed an internal branch audit with a Mr Darren Gilbee. By 17 September 2014 Mr Nevin had identified a large number of cash and/or credit transactions that were believed to be fraudulent.
15It was identified that initial legitimate sales were purported to be returned. In relation to these returns, sometimes refunds were made in cash but the money was retained by you. That relates to Charge 1 on Indictment F13063645.
16On other occasions you would falsely represent that credit refunds had been made to customers, when in fact the refunds were directed to bank accounts controlled by you or to accounts of associates or family members of associates. That is represented by Charge 2 on Indictment F13063645.
17In relation to most of the credit refunds, the refunds were raised onto cards that did not match the card used during the original sale.
18During the investigation the company contacted a number of customers relating to suspect transactions. All of the people spoken to were customers who purchased goods in the first instance. These customers advised that they had not returned their goods for a refund. Police later obtained a large number of statements confirming that no returns had been made.
19On 7 October 2014 a meeting was held with you at West Heidelberg. This meeting was convened by Go Electrical’s Chief Executive Officer,
Chris Brookers. Also in attendance were two other company executive officers, Thomas List and Neil Coleman. You were advised about the investigation and made admissions during the meeting. At the end of the meeting your employment was terminated.20During the course of the meeting you signed a letter detailing a commitment to pay a sum of $91,723.04 to the company.
21The matter was referred to police in September 2014. The police investigation demonstrated that the majority of funds were taken in cash or directed to accounts controlled by you. However a number of amounts were directed to associates.
22The offending covers the period 3 January to 11 September 2014, and the total amount alleged on the indictment is $74,670.99.
23A warrant was executed on your residence on 26 August 2015. During the search a .177-calibre air rifle was located. You are not registered or authorised to possess such a firearm.
24You answered questions in a record of interview. You disagreed with the allegations and made no admissions to the offending. You admitted signing the Go Electrical repayment of $91,723.04, but you claimed it was under duress.
25As the matters to which you pleaded guilty on 7 November 2016: on 5 August 2016 you attended the County Court in Melbourne for a plea hearing for the deception-related offending whilst you were the manager at the Go Electrical Wholesale store in Heidelberg West. You were represented on that occasion by Ms Claire Nicholson of counsel.
26During the course of the plea hearing a number of references were tendered on your behalf as follows:
·John Devine of Middendorp Electrical
·Mark Rowe of the Lower Plenty Cricket Club
·Tim Cotton of the Eltham Wildcats Basketball Club
·Marcello Notarfrancesco of City Link Scaffolding
·Russell Brown of the Macleod Junior Football Club
·Kylie Major, your de facto partner.
27The references all spoke in glowing terms of your good character, your service with and contribution to community groups and your high standing in the community.
28Specific reference was made during the hearing to the reference from John Devine. This document was highlighted to show that you were instrumental in helping Mr Devine during a difficult time when his son died of leukaemia. The reference further detailed how you organised a fundraiser to help Mr Devine with doctors' bills and funeral expenses.
29The references were tendered on your behalf for the purpose of securing a more lenient sentence in relation to the charges to which you had pleaded guilty.
30At the conclusion of the plea hearing you were bailed to attend the County Court on 11 August 2016 for sentence.
31At approximately 9.20 am on 11 August 2016 Detective Senior Constable Chris Elzink arrived at the County Court, where he was approached by a Go Electrical employee, Mr Darren Gilbee.
32Mr Gilbee stated that he had spoken to John Devine from Middendorp Electrical. Mr Gilbee advised that Mr Devine had told him that he had not provided a reference for you. Detective Elzink then contacted and spoke to John Devine, who confirmed that he did not write a reference for you. Investigators then immediately made contact with the alleged authors of the other references that had been supplied to the County Court as follows:
·Mark Rowe of the Lower Plenty Cricket Club - the call revealed that he did not provide a reference and does not know you.
·Russell Brown of the MacLeod Junior Football Club - that call revealed that he did not provide a reference for you.
·Tim Cotton of the Eltham Wildcats - that call revealed that he did not provide a reference and is not the CEO of the Eltham Wildcats.
33The court was informed of the fraudulent references that had been supplied. As a result your bail was revoked and you were remanded in custody.
34Further investigations relating to the fraudulent references revealed that all of the references supplied to the court, except Kylie Major's, were fraudulent and were not created by the alleged authors. The references are complete fabrications. The information contained in the references is false, the signatures on the documents are false and the letterheads utilised are copied and pasted from the websites of the respective companies or organisations. In two instances the alleged authors, Mark Rowe and Tim Cotton, did not even know you.
35The reference purporting to be from John Devine is a complete fabrication.
Mr Devine did not have any input into the compilation of the reference, nor did he authorise anyone to write it on his behalf. Mr Devine advised that the information about the help you gave him after his son's passing is false, and there was never any fundraiser to cover the cost of medical and funeral expenses. Mr Devine expressed disgust that you would lie about his deceased son.36As to the offence of theft committed on 18 June this year: on 18 June 2016 you were observed in the Coles Supermarket at the Greensborough Shopping Plaza in the company of your partner, Kylie Major. Loss Prevention Officers in Coles observed you place various items selected from shelves by your partner into Aldi bags in the shopping trolley. At various times Ms Major was seen keeping a lookout whilst you put items into the Aldi bags.
37When you and Ms Major went through the cashier you only paid for the items which were clearly observable on the trolley. You did not pay for the items secreted in the Aldi bags. You were intercepted outside the store and asked to return inside, which you did.
38The items in the Aldi bags were examined and they totalled $167.
39At the time of the offence you were on bail and awaiting your plea hearing for the fraud offences.
40I now turn to your personal circumstances.
41As I noted earlier, you are now 47 years old and you were 46 at the time of offending in late November last year.
42You have a criminal record which commences with an appearance at the Prahran Magistrates' Court in March 1991 when, for offences of obtaining property by deception, you received a 12-month gaol term with nine months suspended for a period of 12 months. On appeal to the County Court this sentence was reduced to a two-year community-based order.
43In September 1991 you were again in that Magistrates' Court for similar offending - on this occasion you received a 12-month community-based order. This offending represented further charges relating to the period of offending which had resulted in the original March 1991 conviction.
44Three years later you appeared in the Moonee Ponds Magistrates' Court for driving while disqualified, for which you received a two-month suspended sentence - which you breached by repeating the same offence. For the breached offence the period of suspension was increased and for the offending itself you received a three-month prison term, to be served by way of an intensive correction order.
45In 2007, you were convicted and fined for two violence offences.
46You are aged 47 and are the second of six children. You have a good relationship with your parents and your siblings. You have always maintained full employment and enjoy a stable relationship with your partner of 22 years. You have two children aged 18 and 14, both still at school.
47You have worked in electrical wholesaling for the past 20 years, working up from storeman to purchasing officer, sales representative, and for four years as manager, purchasing officer and sales representative for the company which is the victim of your current offending.
48You worked long hours, with your partner attending to book-keeping and only one other employee, a storeman, to assist with deliveries. You have been employed for the past two years as a scaffolder.
49You have described the working environment at the company as harsh, involving pressure and long hours - up to 70-80 hours per week with little support and no overtime. In this context you were introduced to the drug ‘ice’ and began taking it regularly. Your stress was exacerbated by your concern for your mother when she was diagnosed with throat cancer.
50Evidence from three mental health practitioners was heard on your plea. Each has provided a written report and each gave evidence and was cross-examined.
51Ms Carla Lechner, clinical psychologist, assessed you on 26 April 2016 when you were on bail. Dr Remy Glowinski, consultant psychiatrist, assessed you on 13 September 2016 whilst you were in custody and Mr Jeffery Cummins, clinical and forensic psychologist, assessed you three days later on 16 September 2016, also whilst you were in custody.
52Your counsel relies on the combination of this evidence as having established that both at the time of all of the offending and at the time of sentencing you have been suffering from an impaired mental functioning such that I should be satisfied that your moral culpability for each of the offences was diminished and that any time served in custody would be more burdensome and that this condition operated so as to mitigate your offending within the principles expressed by the Court of Appeal in the case of Verdins[1] and other authorities on that subject. The prosecution submits that the evidence is insufficient to permit such conclusions, especially as to any reduction of your moral culpability.
[1] Verdins v The Queen (2007) VSCA 102
53Ms Lechner reported that you have reacted very emotionally to your current circumstances and when assessed by her you exhibited symptoms of high anxiety and major depression in the extreme range. Ms Lechner's diagnosis was that your symptoms were of sufficient severity to warrant a diagnosis of “major depression (DSM-5) [and] clinical levels of anxiety”. Ms Lechner conceded that your symptoms were partly reactive to your current situation, however, based on your account of the difficulties you had experienced at work, together with your personality as a "people pleaser" and your descent into regular ‘ice’ use, concluded that your condition was pre-existing at the time, prior to the original offending.
54Dr Glowinski reported that, whilst conceding that there are difficulties inherent in making a retrospective diagnosis, your descriptions of depressive anxiety symptoms as a result of work stress are consistent with the development of an "adjustment disorder with depressive and anxiety symptoms” at the time of offending, together with an “ice use disorder". In his assessment Dr Glowinski opined that whilst you describe some understandable anxiety symptoms, you did not exhibit significant signs of a current depressive episode, were not currently depressed and that you did not require anti-depressant medication or psychiatric treatment. Dr Glowinski suspected that when assessed by Ms Lechner you were likely experiencing an acute psychological crisis in the context of your court appearance consistent with your pattern of avoidance behaviour.
55Mr Cummins reported that you presented at interview as "moderately depressed and moderately anxious". You did not exhibit any personality disorder and presented as normal and average intelligence. You impressed as having no difficulty in distinguishing right from wrong. In Mr Cummins' opinion your reported symptoms of anxiety and depression were consistent with a diagnosis of “Adjustment Disorder with Mixed Anxiety and Depressed Mood (DSM-5)”. Furthermore, this adjustment disorder had its genesis at the time of the offending when you were reportedly working very long hours, had become anxious and depressed, were feeling completely burnt out and had started using methylamphetamine.
56Each practitioner was cross-examined thoroughly on the basis of their diagnoses, especially with respect to the retrospective diagnosis of mental impairment at the time of original offending. In this regard, each was challenged on the strength of that diagnosis in circumstances of self-reporting by you in the context of evidence of your attempted deception of the court by your creation and tendering of fraudulent character references, the apparent inconsistencies in your statements to each of the practitioners of the dollar amounts you received from your thefts and the incongruous statement to Mr Cummins that, had you asked the people whose character references you forged, they would have written good references.
57Dr Glowinski said that without any evidence to the contrary, he accepted your account of the circumstances but, despite room for further scepticism, that did not alter his opinion. Ms Lechner conceded that the further matters would give her some concern about the veracity of what she had been told, however you appeared consistent, the details of the working environment were reiterated by your partner and whilst Ms Lechner had doubts about your honesty overall, she had no doubt about her diagnosis. Mr Cummins considered that the differing dollar amounts may have had an innnocent explanation based on the manner in which the funds were obtained and that he would need more information before drawing the conclusion suggested by the cross-examination. Mr Cummins also agreed that whilst the evidence of the attempted deception of the court would cause him to pause and consider the truth of what you had said in founding his diagnosis, he found that the primary motivation for writing the fraudulent character references was panic when you saw the likelihood of being incarcerated and that he remained of the opinion that your adjustment disorder has been a continuing condition.
58I accept on the balance of probabilities that you are psychologically vulnerable and subject to periodic depression and acute anxiety at times of great stress. I had no hesitation in adjourning the first date of the plea to the following day, pending medical attention, when I was able to observe first hand your demeanour in court on that first day. It did not appear to me to be feigned.
59There is evidence that you sought treatment under a mental health plan around the time of your assessment by Ms Lechner. You had earlier expressed one instance of suicide ideation. Each practitioner is consistent in diagnosing a psychological disorder at the time leading to, and at the time of, sentence, despite some variation in its particular description. Both Dr Glowinski and Mr Cummins refer to an adjustment disorder and Ms Lechner explained that her diagnosis does not differ significantly: either description can be reactive to a situational stress. More particularly, there is objective evidence that around the time of, or leading to, the original offending you were complaining to higher management about the long hours you were working and the impact that this was having on your life outside work and upon your family.
60The health practitioners refer also to the commencement of taking the drug ‘ice’ at that time to be unusual and reflective of your stated disturbance. I accept that this evidence supports your account to the mental health practitioners of stress and anxiety at that time and, on the balance of probabilities, the diagnosis of psychological vulnerability existed at the time of the original fraud as well as at the time you created the fraudulent references.
61Whilst guarded, each of the mental health practitioners maintained their diagnosis that you were likely suffering from the psychological disorder at the time of the commission of the fraud offences. I accept that this condition was likely to have caused your ability to exercise appropriate judgment and to make calm and rational choices to be impaired, and you yourself to become more disinhibited.
62Dr Glowinski described an adjustment disorder as a “psychological reaction … beyond what you would normally expect from an individual causing psychiatric symptoms - usually depressive or anxiety symptoms”.
63Whilst I accept that you had likely been under high stress for an extended period encompassing the original offending period, and were again at that crisis point at the time of creating the references, I am not satisfied on the evidence that your psychological vulnerability reduces your moral culpability other than to a very moderate degree. You had otherwise maintained employment at a responsible level for a considerable period, had built a family life to a reasonably comfortable economic standard, were well regarded by others who knew and socialised with you and were assessed as being of normal, average intelligence and your offending at the time of the fraud was not some spontaneous erratic behaviour, but considered, protracted, calculated and, according to your report to Dr Glowinski, was encouraged by one of your ‘ice’-using friends who was "into credit card scams".
64In cross-examination, your disorder was described by Dr Glowinski as being "at the minor end of the spectrum" and both Mr Cummins and Ms Lechner conceded that part at least of their diagnosis of your disorder could be described as reactive to your circumstances of facing incarceration.
65I note that apart from the recent mental health plan there is no evidence of any other medical referral or treatment for your mental health, before or at the time of this offending, that is, the original offending, nor had there been in the two-year period since the discovery of your offending. I accept, however, that your personality characteristics are likely to have influenced your decision not to seek appropriate medical help and your inability to recognise the need for such help.
66I accept also the evidence that your emotional condition in prison is likely to fluctuate, and that whilst it appears that now you have become more settled in recognising and accepting your position, you are vulnerable to some deterioration in your mental health following a sentence involving immediate custody. All practitioners were concerned in this regard at the existence of a previous suicide ideation in the context of your potential emotional state whilst in custody.
67Whilst I have no doubt that you will continue to have strong feelings of embarrassment, shame and regret as well as some anxiety and depression, the evidence suggests that with appropriate treatment and the resolution of this matter your reactive issues will ameliorate. The hardship here remains a matter, however, to take into account in your sentence to some degree, but does not displace other important sentencing considerations such as general and specific deterrence.
68Whilst your offending against the company was relatively unsophisticated, it remains serious. It required the expenditure of significant amounts of time and resources to discover and to investigate, it was planned, aggravated by a breach of trust, was of a continuing nature, of a not-insignificant quantum and involved a repetition of similar serious fraudulent offending against an earlier employer, albeit 25 years ago. Whilst the quantum of the company's loss is in the lower category end of commercial crime, it is not insignificant, you have a prior history of like offending and you have other previous convictions and a breach of a court sanction.
69The creation of the false documentation with an intention to deflect the proper sentencing process is also serious offending. The courts are frequently asked to, and do, accept written testimonials of an offender's previous character, and false accounts act to subvert the proper administration of justice.
70I accept that you panicked and I give consideration for the fact that you were psychologically vulnerable at that intense time; however the offending was deliberate, considered and quite creative in order to give it added strength.
71In mitigation I have considered the matters urged by your counsel and take into account in particular:
· your plea of guilty and the early stage at which it was entered;
· the references to your good character from the genuine testimonials tendered and the evidence on the plea;
· the support you have from your family and friends;
· the significant time that has elapsed between your serious offending of like nature;
· your remorse, which I accept you eventually came to genuinely feel after some consideration and reflection;
· your vulnerability to reactive anxiety and depression which will have some added impact on your period of imprisonment in its early stage;
· your employment history of consistent hard work, your insight and your capacity for rehabilitation which I assess as fair;
· the circumstances of high stress and anxiety of your employment that attended both before and at the time of your offending period and the context of your psychological vulnerability and personal weakness to wish to please other people at the expense of your better interests. In my view, the psychological vulnerability that has been diagnosed by the mental health practitioners does reduce your moral culpability to some extent and reduces to a moderate degree what I would otherwise attach to general and specific deterrence. Clearly, both those aspects of sentencing remain.
72I take into account the fact that you have indicated an intention to repay the amount, although there are complications about that process. I accept that as an expression of remorse and I note that there is a financial ability to actually proceed with that intention.
73I also take into account the fact that your time in custody has been harder than what might normally be experienced, and that you have experienced periods of lockdown due to prison circumstances and arrangements.
74The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific to you and general to deter other like-minded offenders), rehabilitation, denunciation and protection of the community. In sentencing, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, its context, your personal circumstances and those of any victims. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.
75You have been assessed as being suitable for a community correction order. In all the circumstances, taking into account your personal details and the matters in mitigation and the seriousness of the offending, I have concluded that the objective gravity of your offending, together with your previous history of offending, including a previous conviction for similar conduct albeit many years ago, means that the purpose or purposes of sentencing cannot be achieved without a sentence that does not involve your confinement in custody, and for a period beyond that capable in law of imposing a combined prison term and a community correction order.
76As to the charges in case number CR-16-00864, that is Indictment F13063645, on Charge 1 of theft you are convicted and sentenced to 20 months’ imprisonment. On Charge 2 of obtaining financial advantage by deception you are convicted and sentenced to 6 months’ imprisonment.
77On the transferred summary Charge 13 of possessing an unregistered Category A longarm you are convicted and fined $200.
78As to the charge in case number CR-16-01629, that is Indictment G12522839, on Charge 1 of doing an act tending and intending to pervert the course of justice you are convicted and sentenced to 18 months’ imprisonment.
79As to the charges in case number CR-16-01855, that is Indictment G11708756, on Charge 1 of theft (that is, shoplifting) you are convicted and fined $500.
80On transferred summary Charge 2 of committing an indictable offence whilst on bail, you are convicted and fined $300.
81Charge 1 in case number CR-16-00864 is the base sentence.
82I direct that two months of the sentence imposed on Charge 2 in case number CR-16-00864 and six months of the sentence imposed on Charge 1 in case number CR-16-01629 be served cumulatively on the sentence imposed on Charge 1 in case number CR-16-00864 and upon each other. The sentences are otherwise concurrent.
83The total effective sentence is 28 months’ imprisonment.
84I direct that you serve a minimum term of 18 months’ imprisonment before being eligible for parole.
85Pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of 116 days, not including today, be reckoned as time already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.
86Pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty the total effective sentence that would have been imposed over all charges is three and a half years’ imprisonment with a minimum period of 27 months to be served before eligibility for parole.
87At the plea hearing the Crown sought an order for a forensic sample and I make that order today for the reasons noted on the order, namely, that the seriousness of the offending warrants the making of the order, your prior convictions warrant the making of the order, the order is by consent and the making of the order is in the public interest.
88I also need to inform you that if at the time of the request for the sample you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. Do you understand that, Mr Hingert
89OFFENDER: Yes.
90HIS HONOUR: At the plea hearing the Crown also sought a forfeiture order as to the seized firearm to which you consented, and I have also made that order today.
91There was also an application for a compensation order in the sum of $74,670.99 payable to Go Electrical Pty Ltd to which you consented and I have also made that order today. You may be seated Mr Hingert. Are there any other matters counsel?
92MS RIDDELL: No, Your Honour.
93MR KENNA: No, Your Honour.
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