Director of Public Prosecutions v Hosking

[2018] VCC 1192

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-02161

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHELLE HOSKING

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	31 July 2018
DATE OF SENTENCE:	2 August 2018
CASE MAY BE CITED AS:	DPP v Hosking
MEDIUM NEUTRAL CITATION:	[2018] VCC 1192

REASONS FOR SENTENCE
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Subject:              Theft x 2
Sentence:           Community Corrections Order - 2 ¹/₂ years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Albert
For the Accused	Mr J. Willee

HIS HONOUR:

1Michelle Hosking, you had pleaded guilty to two charges of theft.  The maximum penalty for each charge is ten years' imprisonment. 

2The circumstances of your offending are contained in a prosecution summary, which was admitted into evidence as Exhibit A, and it was read to the court by the prosecutor, Mr Albert.  Your counsel, Mr Willee, accepted that the prosecution opening represents a proper statement of the facts upon which I can proceed to pass sentence upon you for your offending.

3It is therefore not necessary that I here repeat what is there set out, except in a very abbreviated way.

4Your offending occurred over a five-month period in Charge 1 between August of 2011 and February of 2012, and over a five-month period in Charge 2 between May and November of 2012. 

5Each of the charges is a rolled-up charge, embracing a number of occasions in which you knowingly stole money from your clients, which you disguised by altering invoices or producing invoices that charged for work that had not been done, or for items that had not been supplied, or at the prices revealed in the documentation.

6In each instance, your clients for whom you purported to work as a project manager to manage building works on their homes, were friends or acquaintances from your local community who trusted you to do the work.  They placed their trust in you and you breached their trust.  Your offending in my view represents a gross breach of trust placed in you.

7Much, but not all, of the money stolen by you has been wasted on gambling.  I admitted into evidence the victim impact statements from the victims, and they were read to the court, or in the case of Exhibit C, was read to the court by Mrs Morton.

8Each of those victim impact statements shows the harm which dishonesty and a breach of trust on the scale that you have perpetrated can cause.  Each of the victims is entitled to feel entirely abused by you in a financial sense.

9In arriving at an appropriate sentence, I have taken each of the victim impact statements into account.  The victims in Charge 1 have obtained judgment against you in the Victorian Civil and Administrative Tribunal for the amount that you stole from them.  I have been asked to make a compensation order in favour of the victims in Charge 2, and I will do so.

10You have pleaded guilty to each of the charges, and that is to your credit.  Your pleas of guilty have changed the time and cost of possibly two trials, and they have facilitated the course of justice.

11Each of the pleas of guilty I think evidences some remorse on your part.  This matter resolved into a plea of guilty after a committal.  I treat you as having indicated that you would plead guilty at an early time.  In passing sentence, I must take the fact that you have pleaded guilty and the time at which you pleaded guilty into account, and for that you are entitled to a reduction in sentence, and this will be indicated later in the sentencing remarks. 

12There has been delay in bringing these matters before the court, and that delay cannot be attributed to you.  You have had these matters hanging over your head for, in my view, an inordinate amount of time.  The delay has also caused these matters to be before the court for a much longer period so far as the victims of your crimes are concerned. 

13The law says in passing sentence that I must take the fact of delay into account, because you have been unable to get on with your life whilst these matters have remained extant.

14You are aged 51.  You are the mother of two children aged 24 and 15, whom you continued to support.  I was told and accept that you lived in an unhappy and abusive marriage which has now come to an end.  You, I think, are unemployable in the building industry, where you have worked for some time, and you now work as a cleaner. 

15You have always been gainfully employed, and importantly you have no prior convictions.  Up until this stage of your life, you have led an otherwise unblemished life. 

16I received into evidence two psychological reports, one from Bernard Healy, a well-known psychologist and a person who has been well-known around the courts for in excess of 40 years. 

17In Mr Healey's report, he took a long history from you about these matters, but there is no evidence in my view in the report where you acknowledged your wrongful conduct.  Importantly, there is nowhere in there where you acknowledge that you behaved in a totally dishonest way.

18You tended to blame what occurred on you being disorganised, and of your lack of experience in project managing in the domestic field. 

19The same can be said for the report of a treating psychologist, Dr Lochenini, whom you have seen on a number of occasions.  One has to press your counsel for evidence of your true remorse.  You seem to be having difficulty in acknowledging the fact that you are a dishonest thief, and you will have a prior conviction now for theft. 

20In my view, the sooner you acknowledge the fact that you are a dishonest thief, the better will be the chances of your rehabilitation, and it will only be then that you will be able to move on.

21I received into evidence a number of references in relation to you.  Those references also avoid dealing with the fact of your conduct in committing these crimes.  The references speak highly of you as a person and a mother, and a member of the community, but they also touch upon the fact that you have tended to blame others rather than yourself, which is most disappointing.

22You wrote a letter to each of the victims, copies of which went into evidence.  In that letter, you said:

"My belief that I was in control and capable of taking on the project on the renovation at the Harrington home was misguided, and resulted in a chaotic and disorganised mess."

23That is put forward as your reason for offending.  That is totally misleading.  You offended because you were dishonest, and you offended because you took money that you knew that you were not entitled to.  That is what is at the heart of your offending. 

24I have given a great deal of thought to what I should do with you, because I am not convinced that you are truly remorseful.  The purposes of sentencing in crimes such as this are to achieve general deterrence.  That is to, by the sentence, deter others who might offend in the way that you have.

25The sentence must also denounce your offending, and must have regard to your prospects for rehabilitation.  I have been asked to make a community corrections order, and the prosecutor Mr Albert conceded on instructions that such a disposition was within the appropriate sentencing range in all of the circumstances here.

26Had it not been for the delay in bringing this matter before the court, and your pleas of guilty, and the fact you have no prior convictions, I would have sent you to gaol for these crimes, which as I say were very dishonest acts against friends and a gross breach of trust.

27Mr Albert's concession is appropriate, having regard to rulings of the Court of Appeal in this state dealing with similar cases.  I have regard to all of those cases, of which there are many. 

28In the circumstances, I have been persuaded that the purposes of sentencing in this matter can be achieved by the making of a community corrections order.  I assess your prospects for rehabilitation as reasonably good, and they will increase the sooner you recognise the fact that you did act dishonestly, and you need to take steps to ensure that you do not act that way again.

29Your counsel Mr Willee submitted that I should make a community corrections order without a conviction.  I regard such a submission as most unrealistic, and out of the question.  Your criminality is far too serious for a conviction not to be recorded.

30On each of the charges, I make a community corrections order for a period of two and a half years, with convictions.  The order is to commence this day.  There will be conditions for 250 hours of unpaid community work, that you undergo programs for treatment and rehabilitation for alcohol and mental health, and programs to reduce reoffending, and that you undergo supervision by Corrections, and I am also going to make a provision for judicial monitoring. 

31That is to say, you will have to come back before me every six months, at which time I will receive a report in relation to your progress on the community corrections order, do you understand that?

32If you step out of line in any way, I will send you to gaol.  You must comply with each of the conditions of the community corrections order.  Importantly, you must not reoffend for the period of the next two and a half years in any way.  That can be a driving offence or anything like that.

33If you do reoffend, you can be sent to prison.  If you do not comply with any of the conditions, I can resentence you.  So you must complete the 250 hours of unpaid community work, and you must engage in the programs that you are directed to undertake.  If you do not, you will be brought back before me.  Do you understand?  Are you sure you wish to enter into such an order?

34OFFENDER:  Yes Your Honour.

35HIS HONOUR:  I can only make the order if you consent, but it is important that you understand that if you do not comply with the order, I will send you to gaol, do you understand that?

36OFFENDER:  Yes Your Honour.

37HIS HONOUR: Very well. For the purposes of s.6AAA of the Sentencing Act 1991, I state that had it not been for your pleas of guilty to the charges, I would have sentenced you to a term of imprisonment of three years, and I would have fixed a minimum term of two years before which you would be eligible for parole.

38Come out of the dock please Ms Hosking, and take a seat behind Mr Willee.  Mrs Hosking, the first thing you must do is within two working days report to Rosebud Community Correctional Services, do you understand?  If you do not do that, you will get off on a breach right at the start.  So you have got to do that.

39OFFENDER:  I've got the phone number to make an appointment tomorrow.

40HIS HONOUR:  Very good, all right.  Now, you will have to come back on 1 February at 9.30, at which time I will receive the first report in relation to your progress, do you understand?

41OFFENDER:  I do.

42HIS HONOUR:  You need to understand that that is not done in all cases, but I want to keep an eye on you to make sure you progress properly, you understand?

43OFFENDER:  Yes Your Honour.

44HIS HONOUR:  Very well.  On the rising of the court, you are free to leave.  I have signed the compensation order in relation to Mr Morton to be paid by Mrs Hosking. 

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