Director of Public Prosecutions v Howlett
[2019] VCC 233
•1 March 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-01634
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSHUA HOWLETT |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 February 2019 | |
DATE OF SENTENCE: | 1 March 2019 | |
CASE MAY BE CITED AS: | DPP v Howlett | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 233 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – SENTENCING
Catchwords: Obtain financial advantage by deception – no prior criminal history – excellent rehabilitation prospects – CCO imposed
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Roper (For Plea) Mr D. Levesque (For Sentence) | John Cain Solicitor for the Director of Public Prosecutions |
| For the Accused | Ms A. Brennan | Victoria Legal Aid |
HER HONOUR:
1 Joshua Howlett, you have pleaded guilty to one charge of obtaining financial advantage by deception, an offence that carries a maximum penalty of 10 years’ imprisonment.
2 The charge relates to you dishonestly obtaining for yourself a financial advantage, namely the receipt of $150,000 from Dr Brett Marshall, by deception, by falsely representing to him, firstly, that the balance of your Westpac Bank account, as at 21 June 2016, was $266,334.13, as evidence of your ability to meet the personal guarantee you gave on or about 27 June 2016 and, secondly, Screen Australia, a statutory authority of the Commonwealth Government, had offered to you and guaranteed a grant with a minimum value of $300,000 for you to produce three feature films.
3 The offending took place between 16 May 2016 and 13 July 2016. I will now sentence you on the basis of the summary of the prosecution opening that was read at the plea hearing and is an exhibit.
4 Briefly, you were 26 at the time and you are now 29. The background was that in 2016 you were working as a film and television producer. You were a CEO and the founder of a company, Hand Made Media. Dr Marshall, a medical practitioner, has a daughter who is an actor and the past he has given financial support to emerging and creative artists. He was keen to support his daughter in her acting career and saw the opportunity that was provided to him to be involved in the production of the feature film, “Better Half”, as one way of promoting her career.
5
Through one of your acquaintances, Stuart Stanton, a film director, you made contact with Dr Marshall and thereafter there were discussions about investment opportunities regarding the production of the feature film that you were involved with, “Better Half”, and your working on that film with
Mr Stanton.
6 Mr Stanton provided to the doctor the production investment package relating to the film and met to discuss the proposal.
7 Thereafter things moved through a series of emails being exchanged concerning production timelines, and investment opportunity specifically, as well as your experience in the film industry.
8 Dr Marshall eventually agreed to invest moneys in the production of the film “Better Half”.
9 Documents were exchanged between both you and he confirming that arrangement and full details were particularised in the prosecution opening.
10 The offending concerns you providing false documentation that supported that you had a grant from Screen Australia in the sum of $300,000 for the project and two other films and personal banking details that evidenced that you were able to repay all the moneys invested by Dr Marshall.
11 On the basis of you providing that material, the moneys were provided into your bank account that totalled $150,000 and that was paid in instalments over the period of 28 June 2016 to 10 July 2016.
12
On 7 November 2016, the production company, Final Focus, owned by your mutual friend, Stanton, began to film “Better Half” at Phillip Island. On
16 November 2016, production ceased as services including the rent on the house being used in the film had not been paid for and payments for the crew were not being honoured.
13 On 17 November 2016, you contacted Dr Marshall via email and informed him that the filming of “Better Half” had halted due to lack of funds. You stated that you were aware of the guarantee being a personal guarantee and undertook to honour the guarantee to him.
14 Dr Marshall then contacted Screen Australia and he was ultimately advised that you were not a member of the organisation and that no funding had been provided to you and that the purported producer grant that had been previously provided by you was not a genuine document.
15 Dr Marshall then reported the matter to the police and provided a statement to them.
16 An examination of your personal Westpac Banking account showed that as of 21 June 2016, the account was overdrawn by $18.30 and not in credit to the sum of $266,334.13 as you had previously falsely informed Dr Marshall.
17 Bank records obtained from the Commonwealth Bank of Australia relating to your bank with that organisation showed that the majority of the $150,000 that had been transferred to you by Dr Marshall had been spent on personal items, including payments of fines, rent, travel, clothing, food and drinks.
18 You were ultimately arrested on 3 August 2017 and made a “no comment” record of interview.
19 You were charged and at committal mention on 12 April 2018, you indicated that you would plead guilty to the charge. The matter then proceeded by way of straight hand-up brief.
20 The Prosecution accept that the plea was entered at an early stage of the proceedings.
21 Mr Howlett, the offending has had many consequences. Dr Brett Marshall's Victim Impact Statement that was read to the Court at the plea hearing, graphically sets out the impact and consequences of your actions. He has chronic anger, anxiety and sadness as a consequence of your gross breach of trust.
22 He has suffered increased blood pressure due to stress requiring medication and the fact that these events unfolded in the manner in which they did has had a damaging impact upon his relationship with his daughter whose role in the film industry has also been impacted upon. He has suffered significant hurt as a consequence of your deceptions and significant financial loss. His trust in people has been badly damaged. One consequence of that is that previously he did enjoy sponsoring younger creatives in their hopes and goals but he is now reluctant to do so. The moneys that were stolen were a significant sum and he has had to defer his retirement plans and needs to work longer because of the loss of funds. It has hurt him greatly.
23 You did provide a written personal apology to Dr Marshall at the plea hearing and, in addition, you made a formal apology to him directly. You acknowledge through that apology that you accept that this was a significant breach of trust personally and you acknowledged and expressed your sorrow for the hurt that you had caused both to Dr Marshall and his extended family and also to you own family. You acknowledged the broader implications of your offending and the impact upon other potential projects through your breach of trust.
24 Dr Marshall is now understandably wary of new ventures. Dr Marshall emphasised to you the real necessity for you to feel remorse for what you have done and also to be responsible for your actions and to demonstrate through conduct that you mean that you are sorry by repaying the debt and changing your conduct in the future.
25 Ms Brennan on your behalf has highlighted your personal history and background and also all the relevant mitigating features. You have been supported in Court by both your mother and father. You currently live with your parents and two sisters. The charge has a great impact upon your relationship with your family members and you are tentatively rebuilding those relationships.
26 I noted your background insofar as you were age two when your mother met her husband and they married when you were age four. You were adopted formally by your father when you were aged twelve. You never had a relationship with your biological father whom you did not meet until you were about fourteen. It is said that you do not have a close relationship with him.
27 I have had regard to all the information set out in Ms Carla Ferrari's, consultant psychologist, report and she goes into great detail about your background and the issues that you had resulting from the failure to have - disclose to you at an early age the identity of your natural father. Around the time of the offending, you had experienced a breakdown of a long term, intimate relationship. There were financial stressors and also you were suffering depression and anxiety and the anxiety is of a longstanding. Ms Ferrari sets out a number of traumatic incidents that occurred in your early adolescent years. You were experiencing suicidal ideation and at one point this became so overwhelming that you informed your colleagues of the situation and advised they would have to cease production and left with the intention of committing suicide. This attempt was fortunately thwarted by your father rationalising with you but it did demonstrate the severity of your mood and lack of rational thinking around the time of the offending. Severe depression and anxiety would have contributed to some degree to your impaired judgment at that time.
28 Ms Brennan did not seek to rely upon the Verdins principles being enlivened but urged me to take into account all that detail as relevant context and I have done so. It does explain to a large extent your irresponsible behaviour and whilst giving an explanation for the offending, it does not in any way excuse your behaviour.
29 You are a person who has completed secondary schooling. You have commenced a tertiary degree, namely, journalism at Deakin University but you have not completed that course. You have been involved in work in the film industry in the United States between 2011 and 2016 and your company, Hand Made Media, has been established since 2011. You have stopped working in film production since you have been charged. Recently you have been successful in obtaining work as a media and marketing manager for Baseball Victoria as well as Melbourne Aces and Geelong Courier professional baseball teams. You have a long-term interest in baseball and you also undertake some coaching. You work as a freelance photographer and I understand that you are now attempting to complete your journalism degree.
30 Ms Ferrari diagnosed you with generalised anxiety disorder and Post-Traumatic Stress Disorder.
31 You have agreed to repay the moneys outstanding to Dr Marshall in full and you consent to a compensation order being made in the sum of $149,000. I note that you have paid $1,000 to date towards reparation.
32 In formulating the appropriate sentence, I have had regard to all the mitigating features that have been highlighted. You have entered a plea of guilty at the earliest opportunity. The plea is an acceptance of responsibility for your actions and you properly acknowledge that the offending conduct was wrong. The plea has real utility. You spared the unnecessary expense and inconvenience of a trial. You have facilitated justice and so your sentence will be discounted accordingly.
33 Importantly, the plea has spared the necessity for Dr Marshall being further inconvenienced and upset by having to give evidence and be cross-examined.
34 I accept the plea is indicative of some remorse on your behalf and there is also other independent evidence of your expressed remorse through your friend, Emily Johnson's character reference and also Ms Ferrari's report. It is recorded that you do appear to be genuinely remorseful for the harm that you have caused.
35 You are a person who is otherwise of good character. There is no prior criminal history and no matters pending. I have had regard to the reference material provided by Cameron Nicholas in addition to Ms Johnson's reference. It is obvious that they consider you to be a person who is trustworthy and who is respected. In view of Ms Johnson, she believes that this is a one-off incident that you sincerely regret.
36 Overall I consider that you do have reasonable prospects of rehabilitation, particularly having regard to your strong family support and the support of your friends.
37 It was conceded on your behalf that the charge is a serious offence and that general deterrence is a significant sentencing factor. And it is also accepted that the offending involved a significant breach of trust.
38 It is an offence that took place over a discrete period of time. There was a degree of planning, albeit the offence was not sophisticated. No false identities were used and it was inevitable that you would have been detected. You acknowledge the significant impact upon Dr Marshall and his family.
39 I consider it to be a serious example of this offence and there is a need to formally denounce your behaviour on behalf of the community.
40 A Community Correction Order was suggested as the most appropriate disposition that could provide for just punishment as well as enabling you to remain in the community to be supported.
41 Mr Roper on behalf of the prosecution considered such a sentencing disposition was open in all the circumstances. He also submitted a combination sentence was open.
42 Overall I have considered that all the sentencing principles can be met through the imposition of a Community Correction Order with a punitive aspect being the imposition of hours of unpaid community work, which you must undertake as part of the order.
43 You have been assessed as being suitable and you are a low risk of reoffending.
44 I will now make the formal sentence. I ask that you do stand, Joshua.
45 On Charge 1, obtaining financial advantage by deception, you will be convicted and placed on a Community Corrections Order for 3 years with the condition that you perform 300 hours unpaid community work.
46 I make the following declaration. Pursuant to s6AAA, but for your plea of guilty, I would have imposed a term of imprisonment of 2 years to serve 14 months.
47 I make the compensation order sought in the sum of $149,000 in favour of Dr Marshall.
48 You have had explained to you the nature of a Community Correction Order and also what are the consequences for breach of any such order and you have acknowledged that you understand the nature of the order and consent to entering into the order in the terms proposed. That concludes my sentencing remarks. I just ask, Ms Brennan, if you could accompany my associate and have your client sign the document. Mr Howlett can be released from the dock.
49 I will ask that my associate provide a copy to you, Ms Brennan before you leave the building.
50 I just ask Mr Howlett that you do make good your expressed word that you do want to be a good person - - -
51 OFFENDER: Yes, Your Honour. Thank you.
52 HER HONOUR: - - - going forward and hopefully you will be able to comply with the order without any difficulties and make amends for the hurt you have given to Dr Marshall. Thank you. We can adjourn.
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