Director of Public Prosecutions v Isbel

[2015] VCC 1642

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

AT HORSHAM
CRIMINAL JURISDICTION

CR 14-02038

DIRECTOR OF PUBLIC PROSECUTIONS

v

SUSANNE ISBEL

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Horsham
DATE OF HEARING:	17 November 2015
DATE OF SENTENCE:	17 November 2015
CASE MAY BE CITED AS:	DPP v Isbel
MEDIUM NEUTRAL CITATION:	[2015] VCC 1642

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms A. Moran	OPP
For the Accused	Mr R. Wilcox	Power & Bennett

HIS HONOUR: 

1Susanne Jean Isbel, you have pleaded guilty to seven counts of theft.  The maximum penalty is ten years' imprisonment.  The complainant in this matter was your employer, Horsham Tyres and Batteries.  The total amount that you stole over a period from September 2006 to November 2012 was $204,017.91.

2The circumstances of the offences were set out in the Crown opening, which was read in open court this morning and which I incorporate by reference.  You commenced employment with the business which was conducted by the late Russell Ellis and his son, Brendan Ellis, in 2004.  You were working six hours a day, five days a week.  Your role was as of an officer clerk and duties included to pay the accounts and suppliers and staff wages as well as mailing invoices.

3In your role, you had control of the company bank account and operated it using electronic transactions on the company account at the Commonwealth Bank.  You yourself had two accounts at the local Bendigo Bank.  From September 2006, you commenced transferring small amounts of money from their account to your own accounts.  Initially, they were smaller amounts of $50 to $100 coinciding with the transfer of your weekly pay.  But as time went on, the frequency and the amount of the transactions increased.  They were labelled in the books of the company with descriptions such as uniforms, trade-in, work expenses or workshop expenses.  You also paid yourself what was described as a second wage and described it as a wage to conceal the payment.  The payments were also described as holiday pay even though you continued to work.

4In 2007, the company owner, Mr Russell Ellis, was diagnosed with depression and his health deteriorated and he ultimately passed away in early 2013.  Your offending increased during the period of his health decline.  On 5 November 2012 at 1 pm, you were barred from access to the account and dismissed.  Brendan Ellis ascertained that shortly prior to that, you had transferred the sum of $900 to your own account.  You had a short conversation with him which was put to you in the record of interview.  You told him that the transfers had only been occurring for a couple of years and offered to sell your unit to pay the money.  You wanted to stay working and not have the matter brought to police attention.  He declined to let you remain working for him and you then said you would wait until you heard from the police.

5Ascertaining the exact amount of money involved was difficult as it required considering all the transfers to your accounts.  It was agreed that there were 861 transactions that had been rolled up into seven counts, one for each financial year.  The amounts have been calculated as the difference between the total amounts transferred to your bank accounts less the amount on your group certificate for the relevant year.

6You were arrested and undertook a record of interview on 29 August 2013 where you effectively made no comment.  You were charged in June 2014 and the matter was listed for a committal mention on 19 November 2014 at which time you pleaded guilty to the 861 charges.  The matter was then committed for trial and listed in the circuit in April this year, but was not reached.

7The prosecution agrees that there was an early plea of guilty.  Further, after the offending came to light, you proceeded to sell a unit that you were living in, in Horsham and repaid the sum of $30,000 which was your equity in the unit.  Your former employer is seeking a compensation order in the sum of $174,017.91 which is the balance outstanding and I will make that order.

8On the plea, your counsel did not dispute that this was serious offending.  He acknowledged that it was a serious breach of trust.  He accepted there were a large number of transactions and a significant quantum.  A factor going to the seriousness of the offending here is the impact of your offending.  The now principal of the business, Mr Brendan Ellis, has filed a victim impact statement.  In it, he indicates that his father, Mr Russell Ellis, found out about your offending in November 2012 and shortly thereafter, he says, that as a result of the stress, suffered a stroke and subsequently passed away in early February 2013.  He put the financial loss of your conduct in excess of $300,000.  I note the compensation amount is less than this.

9The victim impact statement states that Mr Ellis Junior is still traumatised from the stress since finding out about the stealing and losing his own father.  He has had to cope with the loss of his father and taking over the running of the business.  Further, he has to overcome the monetary losses and try to build the business back up following your conduct.  Further, he is no longer trusting people anymore and expects to be ripped off.

10It is clear from the victim impact statement that your offending has had a significant impact on Mr Ellis and that goes to increase its seriousness.

11You admitted a single prior conviction being an appearance on 15 March 1977 at the Stawell Magistrates' Court when you were aged about 19 where on two counts of obtaining a financial advantage by deception, the matter was adjourned for a period of six months on a $40 good behaviour bond.  Given the period since that appearance, I do not give the prior matter any weight.

12In a comprehensive submission, your counsel put a number of matters in mitigation which I have taken into account.  First, you have pleaded guilty.  You did so at the earliest opportunity and there was no committal.  Your plea of guilty as a significant utilitarian value.  You have facilitated the course of justice and you are entitled to the benefit of that.  Further, I do regard your plea of guilty as evidence of remorse.  You have also sought to repay $30,000 to the complainant and that is also evidence of remorse.

13Turning to your personal circumstances, you are currently aged 57 and were aged between 48 and 54 when the offending occurred.  You were born in Stawell and were the eldest of four children.  You have three younger brothers.  Your father left the family home when you were aged eight.  Your mother was only, in fact, 17 when you were born.  When you father left, your mother was in desperate circumstances and forced to join the workforce and you had some responsibility for your younger siblings at that stage.

14Notwithstanding this, you managed to successfully finished Form 5 or Year 11.  When you were around 17, your mother remarried and had a son who is now aged 39 and living in the Horsham area with a young family.  Two of your other brothers, who are both on disability pensions, live in Horsham and a third brother lives in Queensland.  Your parents are still alive, living in Stawell in their 70s.  They both have a number of health issues and you have been visiting Stawell regularly to drive them to medical appointments.

15In addition to that, you assist another of your brothers, Lawrie, to go to medical appointments.  As I said, you achieved Year 11 at school and had to leave school to financially support the family.  You worked in the supermarket, however as your mother had a heart attack, you had to then leave that and assist your younger siblings.  You then commenced work as a receptionist until the birth of your daughter in 1982.  You did not return to the workforce until 1988, at which time, you worked as a switchboard operator at the Wimmera Hospital.  You then worked in that position until 1991 and went back to home duties until 1994 and then did ten years at the Directory Assistance Centre in Horsham.  You commenced work at the complainant's operation in 2004. 

16You married in 1979 when you were aged 21.  Your husband was a teacher and you have two children, Emily born in 1982, and your son, Glenn, who is now aged 30.  The marriage broke down and your husband, who had been a trade teacher, left and now effectively has nothing to do with the children.  After your husband left you, you had difficulty with your son and he got into serious problems with the law, including drugs and demanding money from you.  He is currently in prison for breaching an intervention order against his partner.

17Your daughter has two children, your son also has two children - your grandchildren.  You have been assisting your son's former partner with the two grandchildren.  Your son has been in an acrimonious dispute with his ex-partner that has led him to being in prison.  He usually stays with you or his sister when he is not in prison.

18Your explanation for your offending is contained in a report from Mr Garnett, psychologist.  He indicates that you have, in your life, devoted yourself to your family without seeking help from others.  Thus, in the face of threats being made by your son to his own wellbeing and to you and the demands for money, you began to steal money to provide for him.  You did not have the internal resources to resist him or to take alternative action.  Your counsel put it that you were torn between loyalty to your son and the threats being made to you and by him to self-harm.  He put it as an explanation for your offending but did not seek to assert that it provided any form of defence, such as duress.

19It was not in dispute that there was no evidence of an extravagant lifestyle or indeed betterment as a result of your offending.  Your counsel put a number of other matters on the plea that I have taken into account.  First, you have your own significant health problems with a blood condition and in addition to that, you have musculo-skeletal problems and dental problems.  He also put that both your parents rely on you to assist them to medical appointments as well as one of your brothers.  In addition to that, you are undertaking childcare duties for your grandchildren.

20Your counsel submitted that a term of imprisonment would have a significant impact on these family members, but conceded that it did not rise to exceptional circumstances.  I will however take it into account.  The report of Mr Garnett also indicates that you are suffering from extreme levels of anxiety, depression and stress.  He indicates that you would be assisted by psychological counselling. 

21Notwithstanding the problems that you have been facing, you have undertaken a number of courses in order to work in the aged care and disability sector but have been unable to graduate due to the need for a police check.

22The Crown submitted that this offending called for a term of imprisonment given the amount of money involved and the duration of the offending.  Your counsel submitted that a community corrections order was appropriate.  In the alternative, he sought a longer parole period, given your health problems and the need for you to undertake counselling.

23In sentencing you, I have taken into account your psychological problems.  I have also taken into account own medical problems and the assistance that you have been providing to your family and brother.  All those matters mean that you will find imprisonment more burdensome than a person who has not had those family obligations and health problems.

24In sentencing you, I have also taken into account in your favour the delay of now over three years since the offending was detected.  A period since that time has no doubt been very difficult for you, also the matter was not reached through no fault of yours in the April circuit this year.

25The basic purposes for which a court may impose a sentence are punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community.  In sentencing, I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victim, if any.  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 rehabilitation and reintegrated into society.

26In cases of this nature, general deterrence is a matter of paramount importance.  This case involves a breach of trust.  A serious breach of trust perpetrated over a considerable period and involving hundreds of individual actions that has had a significant impact on the complainant.  This type of offending is difficult to detect as small businesses are often not in a position to have in place appropriate systems to protect themselves.  The sentence of the Court must send a signal that this conduct, a breach of trust by an employee against their employer, will not be tolerated.

27Specific deterrence is also a consideration given the sustained period over which this offending occurred.  Denunciation and punishment are also significant and call for a sentence of imprisonment.  Your prospects of rehabilitation must be considered.  I regard your prospects as reasonably good.  You know now that you need psychological assistance to address self-esteem problems.  You have already been able to study to attempt to swap occupations.  You are a mature woman and I very much doubt that you will revert to this offending after your sentence.

28I have taken into account the submissions of your counsel where he sought a community corrections order.  Given the seriousness of the offending, I do not regard that as an appropriate sentence.  I have also taken into account his submissions as to your health condition and his call for there to be a longer than usual period wherein you will be eligible for parole, given the delay and your health problems and indeed the duties that you have previously undertaken and no doubt will continue to undertake to your parents in particular.

29Weighing all the matters, I sentence you as follows.  On Count 1, you are sentenced to six months' imprisonment.  On Count 2, you are sentenced to 12 months' imprisonment.  On Count 3, you are sentenced to 15 months' imprisonment.  On Count 4, you are sentenced to 12 months' imprisonment.  On Count 5, you are sentenced to 15 months' imprisonment.  On Count 6, you are sentenced to 18 months' imprisonment, this is the base sentence.  On Count 7, you are sentenced to 15 months' imprisonment.

30I direct that one month of the sentence on Count 1, two months of the sentence on Count 2, three months of the sentence on Count 3, two months of the sentence on Count 4, four months of the sentence on Count 5 and three months of the sentence on Count 7 be served cumulatively on the sentence imposed on Count 6 and on each other, making a total effective sentence of two years and nine months.

31I direct that you serve a period of 18 months' imprisonment before being eligible for parole.  I make the compensation order sought by the Crown.  I declare that had you not pleaded guilty, I would have imposed a total effective sentence of four and a half years' imprisonment with a non-parole period of three years.  I will direct that the authorities be provided with the relevant medical material that has been tendered on your behalf to ensure that you are provided with proper assistance in prison and proper medication.

32Are there any other matters, Mr Wilcox?

33MR WILCOX:  No, Your Honour.

34HIS HONOUR:  Madam Prosecutor?

35MS MORAN:  No, Your Honour.

36HIS HONOUR:  I thank you for assistance, Mr Wilcox on this plea.

37MR WILCOX:  Yes, sir.

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