Director of Public Prosecutions v Hoffman

[2014] VCC 441

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 12-00382

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHANTAL HOFFMAN

---

JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	21 March 2014
CASE MAY BE CITED AS:	DPP v Hoffman
MEDIUM NEUTRAL CITATION:	[2014] VCC 441

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S Naimo
For the Accused	Mr J P Wheelahan

HER HONOUR:

1Chantal Hoffman, you have pleaded guilty to one charge of obtaining property by deception, six charges of obtaining financial advantage by deception and one charge of perjury.  The maximum penalty for obtaining property by deception and obtaining a financial advantage by deception is ten years imprisonment.  The maximum penalty for perjury is 15 years imprisonment.

2The circumstances of your offending are set out in an amended Prosecution Opening for a Plea of Guilty, tendered as Exhibit A2.  In 2006 you worked for the Melbourne Taxi Club in the accounts section.  MTC was an organisation which assisted taxi owners in various ways.  There were about 300 taxi owner members who paid an annual membership fee.

3You falsely told a co-worker and others that you had uterine cancer.  Your co-worker said that he was going to raise money to assist you with your treatment.  You allowed this to occur.  Between 29 September 2006 and 18 October 2006, a total of $5,265.30 was collected from 64 members.  The money was put in a tin and you took it and used it for yourself.  That is the subject matter of Charge 1.

4You and your then husband in 2005 and 2006, invested about $185,000 in a property investment with the person who ran the MTC.  You lent him an additional $25,000.  You encouraged a co-worker to join in with this investment.  This was the same co-worker that you had told that you had uterine cancer.  He took out a loan and borrowed $40,000 from his brother when more money was needed.  You were under pressure to repay your co-worker's brother.  Between 6 November 2006 and 2 February 2007, you wrote a cheque on the MTC cheque for $40,000 to give to him knowing that there were insufficient funds for the cheque to be honoured. 

5You had also borrowed money for your alleged cancer treatment.  On 2 February 2009, you gave the person who had arranged that loan an MTC cheque for $10,000 signing it with the name of the authorised signatory.  You wrote "Cancelled" on the cheque butt to conceal what you had done.  You knew there were insufficient funds to cover the cheque, and that the funds were not yours to use.  By those means, you obtained for yourself a financial advantage by evading debts of $50,000.  That is the subject matter of Charge 2.

6In order to get further money for the property investment, you and your co-worker obtained a loan of $50,000 with the Commonwealth Bank of Australia.  You told your co-worker the MTC would pay the interest and the loan would be repaid quickly.  Your co-worker was putting pressure on you to get the loan re-paid.  On 29 January 2007, you got the authorised signatory for MTC to sign a blank cheque.  You said it would be for $20,000 for your cancer treatment.  You endorsed the cheque for $49,875.06 on the CA Panel Shop account.  CA Panel Shop was a business associated with the authorised signatory to the MTC account.  That person was a person who effectively ran the MTC.  You knew there were insufficient funds to cover the cheque.  On 30 January 2007, you deposited the cheque into the joint loan account.  By that means, you evaded the debt owed to the Commonwealth Bank of Australia, obtaining that financial advantage.  That is the subject matter of Charge 3. 

7You had asked the person who was obtaining the $20,000 loan for the cancer treatment to pay the money into the CA Panel's account.  That was done on 31 January 2007.  You obtained a financial advantage for CA Panels and that is the subject matter of Charge 4.

8On 13 February 2007, you obtained a counter cheque for $48,581.61 on your joint account with your then husband.  You took the counter cheque to the Commonwealth Bank of Australia and requested the funds be divided to pay out loans which you had with your co-worker.  You knew there were insufficient funds to cover the cheque, but depositing the cheques meant that your co-worker would believe that the loans had been paid.  The cheques were dishonoured.  You thereby evaded your debt to the Commonwealth Bank Australia, and that is the subject matter of Charge 5.

9On 4 May 2007 you swore an affidavit in divorce proceedings with your then husband.  The affidavit said you were suffering from uterine cancer, had had chemotherapy and had been told you would need a hysterectomy.  You knew that you had not been diagnosed with uterine cancer, had not had chemotherapy and that any suggestion of a hysterectomy had nothing to do with uterine cancer.  The affidavit was filed with the Federal Magistrates Court on 8 May 2007.  That is the subject matter of Charge 6.

10You were interviewed by police on 4 August 2007 and denied any wrongdoing. 

11In 2007 you developed a friendship with a man who was setting up an earthmoving business.  You became a director of the company.  Your friend wanted to borrow money to buy machinery.  You wrote a cheque for $15,000 and put it in the lender's account to make it seem that your friend had access to funds.  You had insufficient funds, and the cheque was dishonoured.  On 5 December 2007 you wrote another cheque for $20,000 and gave it to your friend to assist with a finance application.  There were insufficient funds and the cheque was dishonoured.  You did the same thing on 24 December 2007 with two cheques totalling $20,000.  On 5 January 2008 your friend was asking for money from you.  You wrote a cheque for $300 and gave it to him knowing there were insufficient funds.  On 8 January 2008 you gave your friend a cheque for $20,000.  You again knew there were insufficient funds.  By these means you obtained a financial advantage for your friend by enabling him to evade the debt he owed to the lender.  That is the subject matter of Charge 7.

12On 4 January 2008 and 7 January 2008 you wrote two cheques to a motel where you were staying.  The amounts totalled $774.00.  You knew there were insufficient funds.  By that means, you evaded your debt to the motel and obtained a financial advantage.  That is the subject matter of Charge 8. 

13You were arrested for a second time on 22 July 2008, a third time on 5 November 2009, and a fourth time on 23 September 2010.  You were interviewed on each occasion.  You provided some information but denied wrongdoing.

14A victim impact statement was tendered as Exhibit B.  The victim impact statement was made by your co-worker.  Your co-worker describes the loss of trust he suffered as a result of what you did in relation to saying you had cancer.  Your co-worker describes the stress this experience has caused to him and his wife.  He says that he lost his trust in you.  It appears that he lost money due to investment that he made in the property investment that you had also invested in.

15In sentencing you I have taken into account your personal circumstances.  You are now 34 years old.  You lived with your mother, step-father who had adopted you when you were very young and seven siblings during your childhood.  There were some problems in your childhood but you had a generally happy childhood.  You suffered a whiplash injury in Year 12 and left school for a period.  You returned to school and completed Year 12.  You have worked in a number of jobs involving office and administration work.  You worked in a legal practise for five years but your employment was terminated when you entered your plea of guilty. 

16You met your first husband in 2001 and separated in 2007.  You met your present husband in mid-2008.  You have two children who are two and four years old.  You had a difficulty pregnancy with your younger child involving a three month hospital stay.  Your husband also has a daughter from a previous relationship. 

17Your general practitioner gave evidence about your past and current medical problems which include endometriosis, ongoing back pain, lower abdominal pain, anxiety and depression.  I have not received a psychological report in relation to you and cannot draw any conclusions as to your psychological state at the time of offending or now.  Your general practitioner described your husband's problems arising from a workplace injury in 2010.  He has been off work since then.  A psychological report tendered confirms that he has significant psychological problems including depression.

18Your counsel provided written submissions on sentence and tendered a folder of material as Exhibit 1.  The folder contains medical material concerning yourself and your husband, financial information and references.  Your counsel relied on a number of matters in mitigation, including:

a.  Your plea.

b.  The delay between detection and sentence.

c.  Your good prospects of rehabilitation.

d.  The extra curial punishment of you losing your employment.

e.  The circumstances of the offending.

19Your counsel conceded that a sentence of imprisonment would be imposed and submitted that any sentence of imprisonment should be wholly suspended. 

20The prosecutor explained the reasons for the delay.  In part, this was that there were different lines of enquiry by the police.  Interviews were conducted as various matters came to light.  The prosecutor accepted that by March 2012, it was clear that defence wished to discuss resolution of the matter.  There were further delays for reasons beyond your control.

21The prosecutor submitted that there had been a breach of trust in relation to the MTC and taxi drivers.  He also submitted that general deterrence ought be a significant sentencing factor in respect of the charges involving false claims of cancer and perjury.  The prosecutor submitted that imprisonment, with a period to be served immediately, would be the only appropriate sentence.

22Chantal Hoffman you engaged in a varied course of conduct over a period of about 15 months which involved repeated lies and deceptions.  You took money from kind and charitable people who were members of the organisation for which you worked.  You knew you had not been diagnosed with uterine cancer.  You repeated that lie to your solicitors and swore an affidavit in court proceedings containing the lie.  It is a very serious matter to perjure yourself.  The proper administration of justice relies on people telling the truth in affidavits.  You used money loaned to you for cancer treatment for another purpose.  This was a further serious deception. 

23You engaged in a series of financial transactions which had the effect of evading debts, at least for a time.  It appears that you did this in order to relieve pressure on you to repay debts, or organise repayment of debts for yourself or others.  You did this by dishonestly providing cheques when you knew there were insufficient funds to cover the amounts on the cheques.  On some occasions, you breached the trust of your employer by using their cheques, and signing them, or on one occasion, getting the cheque signed by a deception.  Finally you used valueless cheques for pay for motel accommodation.

24Some of your offending occurred despite having been spoken to by police about earlier matters.  Your conduct demonstrated persistent and serious dishonesty.  It appears that all you actually directly obtained from your offending was the donated money and motel accommodation.  A desire for monetary gain in itself does not appear to have been the motivation behind your offending.  Your motivation is not clear, but it seems from the facts that you have accepted, that you wished to appear to be in a better financial position and with better financial competence than was actually the case.  You appeared to have wanted to appear to your co-worker, and later your friend, to have funds or access to funds that you did not.  You fooled other people and institutions into relying on you to their detriment. 

25On the material before me, I cannot draw any conclusions as to your psychological state at the time of the offending or now as I have said.  Your actions during the offending were those of a person with a deceitful and dishonest character.  You have no prior criminal history but given the length of time and nature of your offending, I do not conclude that these offences were out of character for you.  That said, it seems that your actions have changed since your offending ceased and, judging by your actions, your character has changed for the better.

26There has been a delay of six years between the end of your offending and sentence.  You have had this matter hanging over your head for a long time.  I accept this has caused significant anxiety and distress.  In that time, you have not offended.  You have found and maintained employment, remarried and had two children.  Many positive references were tendered as part of the material in Exhibit 1.  References from friends and family members describe you as a very hardworking, capable and caring wife and mother.  That description is supported by the report and evidence given by your general practitioner.  I consider that there are good prospects that your rehabilitation will continue. 

27I have taken into account in mitigation of sentence that you have now lost your employment which you had maintained, despite your legal and health difficulties and your husband's health issues.  You have managed to repay a loan which was used to pay some of the debt associated with Charge 7.  You have also repaid the motel. 

28I consider that your current health problems would make any period of incarceration more difficult for you. 

29It is clear from the references and from your general practitioner's evidence that your husband would have considerable difficulty caring for your two young children alone.  In addition to your husband's significant health issues, your elder child has behavioural problems.  I accept that your concern for their wellbeing will make incarceration considerably more burdensome for you. 

30You are entitled to a significant discount for your plea of guilty.  That plea was made late, but I accept that there were early discussions to try to resolve the matter.  Your plea of guilty has saved the expense and trauma of trials which would have taken many weeks.  By your plea of guilty, you have accepted responsibility for your actions.  You have not in my view expressed or demonstrated genuine remorse for your offending. 

31General deterrence must be given significant weight in your sentence.  Others must be deterred from taking advantage of the charity of others.  Others must also understand that perjury is likely to result in a sentence of imprisonment.  It is to be hoped that the prospect of gaol will deter others from telling lies in affidavits.  It is also important to deter others from breaching trust placed in them, and from deceiving financial institutions in individuals.  Specific deterrence remains a sentencing consideration, but will have reduced impact given your good prospects of rehabilitation. 

32A sentence of imprisonment is warranted for the purposes of just punishment, denunciation, general deterrence and specific deterrence.  In setting the individual sentences and degree of cumulation, I have taken into account the different types of offending and the inter-relationship between many of the charges.  I have also applied the principles of totality and proportionality. 

33In the circumstances of this case, I consider that it is desirable that the sentence of imprisonment be wholly suspended.  The offences are serious but are not anywhere near the serious end of these types of offending.  There has been a very lengthy delay.  In that time, you have effectively rehabilitated yourself.  There are good prospects for that rehabilitation continuing.  I consider it unlikely that you will re-offend. 

34Could you please stand Ms Hoffman.

35On Charge 1 of obtaining property by deception, you are convicted and sentenced to nine months imprisonment.  On Charge 2 of obtaining a financial advantage by deception, you are convicted and sentenced to 12 months imprisonment.  On Charge 3 of obtaining a financial advantage by deception, you are convicted and sentenced to nine months imprisonment.  On Charge 4 of obtaining a financial advantage by deception, you are convicted and sentenced to ten months imprisonment.

36On Charge 5 of obtaining a financial advantage by deception, you are convicted and sentenced to nine months imprisonment.  On Charge 6 of perjury, you are convicted and sentenced to three months imprisonment.  On Charge 7 of obtaining a financial advantage by deception, you are convicted and sentenced to 15 months imprisonment.  On Charge 8 of obtaining a financial advantage by deception, you are convicted and sentenced to one month's imprisonment.

37The sentence on Charge 7 is the base sentence.  Three months of the sentence on Charge 1, two months of each of the sentences on Charges 2, 3 and 5 and one month of each of the sentences on Charges 4 and 6 are to be served cumulatively on each other and on the sentence on Charge 7.  The total effective sentence is 26 months imprisonment.  That period is to be wholly suspended for a period of 30 months.  But for your plea of guilty, I would have sentenced you to a term of imprisonment of 36 months, with a non-parole period of 18 months.

38Ms Hoffman I need to explain the consequences if you breach the suspended sentence.  If you re-offend during the next 30 months, in respect of any offence for which imprisonment is a potential penalty, then you will breach the suspended sentence.  You will be brought back before me in respect of that breach and, unless there are exceptional circumstances, you will be required to serve the 26 months imprisonment.  It is therefore extremely important that anytime but particularly for the next 30 months you do not commit any offence of any type for which imprisonment is a potential penalty.  Do you understand that?

- - -