Director of Public Prosecutions v Hitchiner

[2016] VCC 1844

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-01022

DIRECTOR OF PUBLIC PROSECUTIONS

v

STUART HITCHINER

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JUDGE:	HIS HONOUR JUDGE GRANT
WHERE HELD:	Melbourne
DATE OF HEARING:	25 November 2016
DATE OF SENTENCE:	1 December 2016
CASE MAY BE CITED AS:	DPP v Hitchiner
MEDIUM NEUTRAL CITATION:	[2016] VCC 1844

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director	Ms D. Karamikov	OPP
For the Accused	Mr J. McLoughlin	VLA

HIS HONOUR:

1       Stuart Hitchiner, you have pleaded guilty to seven charges of theft. The maximum penalty for the offence of theft is 10 years imprisonment.

2       I have heard a summary of the offending.  It is not my intention to repeat the whole summary.  It has been tendered as Exhibit A in the plea proceedings.

3       Briefly, you were employed by Red Hill Motors for approximately 31 years until November 2015. At the time of the offending you were undertaking a front of house role at the business. You were in a trusted position having regular access to the business’s eftpos facility. Between 2009 and 2015 you breached this trust by processing 1985 false refund transactions. Each false refund was paid into your personal bank account. You destroyed the paper receipts that were generated.

4       

In the first four years each false refund was in the range of $299 or thereabouts. After 2012, the amount of each false refund was $399 or thereabouts. The transactions occurred on a weekly basis, sometimes on a daily basis.  A total of $619,338.40 was taken from the business. You were arrested on

16 November 2015 after the offending was detected by management and reported to police.

5       Mr Hitchiner, this is serious offending. You offended over a period of six years and three months. The amount of money stolen is considerable. The offending is aggravated by the fact that you were a trusted employee and you abused that trust.  Mr Pittock, who is the victim of your dishonesty, has provided an impact statement that details the profound impact of your offending upon him. He has suffered financial loss. This has come about in two ways.

6       First he has lost the amount of money you stole. Secondly, the loss of approximately $100,000 a year over a 6 year period meant that the business appeared less profitable than it actually was and this discouraged prospective buyers of the business. In addition, Mr Pittock has also suffered emotionally. He was devastated when he discovered what you had done and he has lost his ability to trust other people.

7       Given the circumstances of this offending general deterrence – that is the need to deter others from behaving in the way that you have behaved – is a paramount sentencing consideration.  Denunciation of your behaviour and just punishment are also highly relevant sentencing principles.  In determining the appropriate sentence, I must of course take account of the matters in mitigation and the matters relevant to rehabilitation.  I will discuss these matters now. 

8       In relation to the offence itself, I accept that transferring the money into your own account showed a lack of sophistication.  It would eventually lead to your detection. 

9       You have not repaid any of the money. However, you do stand to inherit monies from your father’s estate. You have directed the executors of the estate to pay your 25% share of the estate to the victim. This could amount to $170,000.  It is a long way short of the amount lost by the victim, but it does at least provide some compensation and it is indicative of genuine remorse.

10      You made full admissions upon detection and entered an early plea of guilty.  As I have said, I am satisfied that you are remorseful.  Your plea of guilty also has utilitarian benefit.  It has avoided the cost and expense associated with a criminal trial and saved the victims from the trauma associated with giving evidence.  You will be given appropriate credit for all these matters.

11      This matter was originally listed for plea on 21 September 2016 and you had prepared yourself for a sentence of imprisonment. The matter was not reached on that day and adjourned to 25 November 2016. This delay has caused stress and hardship and my sentence should recognise that fact.

12      You are a 49-year-old man without prior criminal convictions. You come from a good family. I note that you have three brothers who have all done well in their lives. Your family has had a long involvement with the local community. You now stand disgraced in that community.

13      You left school during year 12 and commenced working with the victim’s business on a short-term basis.  You ended up spending your whole working life with that business. You lived at home with your parents until 1997. You then commenced a relationship and your son Josh was born in 1998. You and your partner separated in 2002 and you returned to live with your parents. Your son remained in your care.  

14      In 2006 you commenced using methylamphetamines and by 2008 you were a regular user.  It appears that your drug use did not affect your ability to attend work or interfere with your role as a parent. Your offending is explained by your ongoing abuse of methylamphetamine. You stopped using that drug shortly before your detection.   

15      Your counsel submitted that you are a good prospect for rehabilitation and I am sure that you are.  It is unlikely that you will offend again.  Of course, it is also highly unlikely that you will ever again be in a position where you could abuse the trust of others.

16      Mr Hitchiner, in respect of your prior good conduct and your prospects of rehabilitation, you are no different to many of those who engage in this type of offending. Obviously, prior good conduct and good prospects for rehabilitation must be given appropriate weight.  However, they must also be appropriately balanced against the weight to be given to the principles of general deterrence, denunciation and just punishment.

17       Your counsel submitted that it would be appropriate to impose a term of imprisonment, coupled with a community corrections order.  I am unable to accede to that submission. Notwithstanding the matters in mitigation the offending in this case is too serious to permit such a course.  You offended over six years.  The amount of money involved is large and there has been a significant breach of trust.  In this case, the sentencing purposes of deterrence and denunciation loom large.  The offending requires the imposition of an appropriate term of imprisonment.

18      Mr Hitchiner, I intend to impose an aggregate sentence of imprisonment rather than impose separate sentences on each of the offences and make some of those sentences cumulative.  An aggregate order is an appropriate way of dealing with this case because the offences form part of a series of offences of the same character.

19      Will you please stand?  You are convicted and sentenced to an aggregate sentence of imprisonment of three years and six months.  I fix a minimum term of 21 months before you will be eligible for release on parole.

20      Had you pleaded not guilty and been found guilty after trial, I would have sentenced you to an aggregate imprisonment term of five years with a minimum of three and half years.

21 I make an order under s464ZF(2) of the Crimes Act 1958 that you undergo a forensic procedure for the taking of a sample from your mouth. I do so because of the seriousness of the offending, the order is not opposed and the order is in the public interest. If you do not consent to the taking of the mouth scraping then the sample to be taken will be a blood sample and police may use reasonable force to obtain that sample.

22      I order you to pay compensation of $619,338.40 compensation to Alan Wallace Pittock.  You can be seated there, thank you.  Are there any other matters?

23      MS KARAMIKOV:  No, Your Honour.

24      HIS HONOUR:  Thank you both.  The prisoner can be removed, thank you.

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