Director of Public Prosecutions v Jackson
[2021] VCC 2042
•7 December 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 20-01077
CR-21-02057
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| COBY JACKSON |
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JUDGE: | HER HONOUR JUDGE WILMOTH |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 March, 10 May, 18 August, 30 November 2021 |
DATE OF SENTENCE: | 7 December 2021 |
CASE MAY BE CITED AS: | DPP v Jackson |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2042 |
REASONS FOR SENTENCE
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Subject: Criminal Law- sentence
Catchwords: Pleaded guilty to 2 indictments – theft (rolled up charges) trafficking commercial quantity drug of dependence – methylamphetamine – summary charge
- 78 instances of theft from employer small business – 11 separate drug transactions from Covert operatives - significant violence from abusive partner – post traumatic stress disorder – good prospects for rehabilitation -
Sentence: Total effective sentence 21 months non-parole period of 9 months.
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| Counsel | Solicitors | |||||||
| Dr J Harkess (23/3, 10/5 18/8/21) Mr J Saunders (30/11, 7/12/21) Ms A Burnnnard Mr J McGarvie(for sentence) | OPP Stary Law |
HER HONOUR:
1Coby Jackson, you have pleaded guilty to one charge of theft which occurred in the context of your employment. It is a rolled-up charge relating to 78 instances of making unauthorised and fraudulent transactions.
2The plea in regard to these matters commenced on 23 March 2021 and continued part heard on 9 May. It was further adjourned until 30 November.
3The maximum penalty for theft is 10 years' imprisonment.
4On 30 November, you pleaded guilty on the second indictment to trafficking in a commercial quantity of a drug of dependence, namely, methylamphetamine. The maximum sentence for that offence is 25 years' imprisonment. The co-accused in this matter was Rhys Phillips, whose plea hearing is part-heard before me.
5You have also pleaded guilty to a summary charge of committing an indictable offence while on bail, for which the maximum is three months.
Fraud Charges
6In February 2017, you began working as an accounts manager at A1 Signs, Designs & Graphics, a small business in Hoppers Crossing, owned by Christopher Grixti. You were authorised to issue invoices and receive payments from customers, to pay suppliers electronically, to pay wages and to record transaction details in the MYOB accounting platform.
7On each of the 78 instances you transferred money into your personal bank account. You used false accounting entries indicating that you had paid the supplier when in fact the money had been paid to you. On some occasions you would then pay the supplier using the business' credit card resulting in two payments for the same invoice, one to you and one to the supplier.
8On other occasions you would make a payment on a fictitious invoice created electronically which was, in effect, another form of a false accounting entry.
9This meant that any preliminary enquiry conducted by staff at A1 Signs would lead to the belief that the unauthorised transaction was indeed a legitimate payment to a supplier. Further checking of the source documents was necessary to discover the theft.
10The first unauthorised transfer was made on 11 December 2017 when you transferred $589.38 from the account of A1 Signs to your personal bank account, concealing your identity by using the name Skyreach Vic. Pty Ltd. The last unauthorised transfer was on 20 March 2020, when you transferred $6,050 into your personal account concealing your identity by using the name Helios Printing.
11Over more than two years you stole a total of $141,569.52 in this manner from your employer. Your offending was discovered when you were away from work on 24 March 2020 and a supplier rang A1 Signs because of an unpaid invoice. According to the A1 Signs MYOB accounting platform, the invoice had been paid so enquiries began which uncovered your dishonesty.
12Mr Grixti's partner, Rebecca Spiteri, a qualified accountant, conducted a full audit of the accounts and discovered the 78 fraudulent transactions. On 29 March, she and Mr Grixti spoke to you by telephone during this process. You admitted that you had taken a lot of money out of the account but claimed that you had put a lot back. You estimated that you had taken about $80,000 by using false accounting entries but had then paid the supplier yourself using about $70,000 of your own money. It has since been confirmed that you repaid $11,000 to A1 Signs.
13You also admitted to having on a few occasions used the A1 Signs credit card to pay the supplier after you had paid the money to yourself in relation to the same invoice.
14You said that you were sorry and that it should never have happened, but you denied stealing the money saying you had always intended to give it back. You said you took the money because you felt you were “in a trap” or “in a loop”.
15You were arrested on 4 June 2020 and interviewed, during which you made some admissions, giving your reason for offending as trying to keep yourself and your son safe. You told police that you sometimes used the money for rent but mostly it was to fund your partner's gambling. You said sometimes he withdrew the money as he had access to your bank cards.
16You admitted that you had continued to steal money when he was in gaol from July 2018 to March 2019 because he had control over you, and you had to pay his gambling and drug debts as you were being pursued for them.
Gravity of the theft charge
17This offending was a serious breach of trust, with many instances of the offences, and occurring over a long period of time, approximately two years and three months.
18Mr Grixti had placed complete and sole trust in you to manage the accounts for a small business he had worked hard to build over 18 years. It was easily detected once an anomaly arose, although only because you were at home and not at work, and to that extent it was not a sophisticated scheme of deception.
19The effect on your employer was, however, very significant. Mr Grixti, the owner of the business had to divert his time and energy, as did his partner, into uncovering the full extent of your deception, which took several weeks. The business is out of pocket by $7,500 representing the insurance excess fee.
20The offence itself is serious with a maximum penalty of 10 years' imprisonment and this is a relatively serious example of it.
21In his victim impact statement, Mr Grixti described feeling hurt by your betrayal. He has found it very hard to forget what you did and was embarrassed at not having noticed. He no longer trusts anyone except his partner with the job, which has placed strain on their relationship as they have two young children to look after.
The trafficking charge
22I now turn to the trafficking charge. In November 2020, police were conducting a drug operation in the Wangaratta area. Covert operatives formed a relationship with you and began buying methylamphetamine from you. The charge relates to a trafficking of the drug between 15 January and 6 May 2021.
23During 11 separate transactions, you supplied quantities of methylamphetamine to the covert operatives in exchange for payment from them.
24The first eight of the transactions consisted of the supply of the drug in quantities of 14 grams or less, the smallest being 3.5 grams, cash sums varying between $1,200 and $3,000 were paid.
25The fifth and sixth transactions on 11 February, at different times, were carried out by you and Rhys Philips together, each transaction involving the selling of 14 grams of the drug for $2,500 and $3,000 respectively.
26You carried out the ninth transaction jointly with Mr Philips, supplying 84 grams of methylamphetamine to the covert operatives in exchange for $11,550. You then offered the covert operative a further 3 grams for the sum of $450 and that transaction, the tenth, took place.
27The eleventh and last transaction was one that did not go ahead. It began on 29 April 2021, the same day as the tenth transaction. It consisted of an enquiry by you to one of the covert operatives as to whether they were interested in buying 500 grams of methylamphetamine. Negotiations took place between then and 6 May with an agreed price of between $50,000 and $58,000 but nothing eventuated.
28In an uncharged act, whilst you were in Wangaratta, you arranged for Mr Philips to sell 7 grams of methylamphetamine for $1,700 to a covert operator. This formed part of the charge against Mr Philips.
29In total you sold 159.5 grams of methylamphetamine. When your home was searched, police found a further 8.2 grams in small bags.
30You were arrested on 6 May and interviewed during which you made admissions and you have remained in custody since then.
Personal circumstances and background
31Mr McGarvie, submitted on your behalf, that your drug trafficking was in the context of your particular circumstances as a victim of domestic violence, having suffered trauma in the past as well. While conceding that the agreement to sell 667.7 grams involved a large amount, only a small fraction changed hands between you and the covert operatives, and no other people were involved. There were no signs of a larger operation and none of the aggravating features often seen in drug trafficking.
32I will now turn to consider those circumstances in which this occurred and your background generally. Your motivation to offend generally appears to have originated from the threats your partner made to you and in view of the background of significant violence you experienced at his hands.
33The instigation and continuation of the thefts can be explained in that way. Simple greed as the motivation submitted by the learned prosecution seldom stands alone and usually stems from other factors such as personality defects or external pressures, although it is sometimes distinguished from the need to maintain drug use or a gambling habit.
34Returning to the time of your initial arrest. You were released on bail, and you pleaded guilty at a committal mention on 3 September 2020. On 20 October 2020, you were arrested and remanded in custody, charged with trafficking methamphetamine, dealing in the proceeds of crime and contravening bail conditions.
35You had been stopped by police in Wangaratta and admitted to having supplied drugs to others at the direction of another person. You were in possession of a small amount of methylamphetamine, just over 20 grams, and you confessed to be taking it to Melbourne for a sale. You said later that you did this to make money to try and repay the funds you had stolen in order to avoid imprisonment at the forthcoming plea hearing.
36You pleaded guilty to those Wangaratta charges on 11 November 2020. The learned magistrate deferred sentence and adjourned the matter until 18 January 2021, releasing you on bail with conditions that you engage with CISP. You were bailed to the address of your sister, Cara Jackson. The case was further adjourned until 8 April 2021. On that date you were fined for that charge of trafficking.
37At the time of your arrest last October, your 10-year-old son became the subject of an interim protection order through DHHS and was placed in the care of your sister and you joined him there on your release. On 9 January you arranged for his care to be transferred to your parents who live in Wangaratta, and you were spending your time between there and Melbourne. I understand the Department has now closed the case and there is nothing to prevent you taking over his care when you are released.
38You are the middle child of your parents' three daughters, and you have a good relationship with all your family. You are aged 36. As a very young child you were the victim of sexual abuse committed by the son of a babysitter, as was your older sister. Your teenage years were very troubled, and you were diagnosed with depression aged 15.
39On 13 November last year you saw Dr Fiona Best, a forensic psychiatrist, to whom you gave a history regarding your mental health status over the years. The assessment was arranged with a view to obtaining a report for court purposes. Dr Best gave evidence at the second hearing of the theft charges on 9 May.
40In his submissions, Mr Saunders for the prosecution suggested that in November 2020 when you saw Dr Best you were already involved in the drug trafficking which led to the second indictment, in that you had come to the notice of the police and the evidence suggests that you were using drugs at the time.
41Mr McGarvie referred to the fact that you have been bailed to CISP in October and did not use drugs until January 2021. Here, I should note, that it was put to Dr Best by the prosecutor that you may have been understating your recent drug use at that time and Dr Best said it is common to do so. She said that drug use is a form of avoidance consistent with suffering Post-traumatic Stress Disorder.
42In any event, it was around this time in October 2020 that Jarrod Bryers, who had been your intermittent partner for some years, was released from prison and came to your house. During your 10-year relationship with Bryers, you lived with him for three years and otherwise the relationship was intermittent. During those years he was imprisoned three times for violence and abusive behaviour towards you.
43Thus there is ample objective evidence of serious abuse and coercion by Bryers, notwithstanding any reduction in your credibility concerning what you told Dr Best.
44You turned Bryers away when he came to your house, but he got in through the roof. He was using drugs at that time, and you did too. His behaviour became more concerning in that he had you under surveillance and was tracking your phone. He was gambling and using money set aside for living expenses, and the money you later made from drug trafficking was intended to replace this.
45An intervention order was made against Bryers in January, but it was never served as he could not be located. I understand that this was later rectified.
46In March 2021 a significant episode of abuse by Bryers occurred. The details are somewhat confused, but while driving you to Melbourne from a country town, Bryers drove down a dirt road and refused to let you out of the car despite your protests and attempts to get out of the moving car. He stopped the car, took your clothing from it, and set fire to it. He started other fires in the surrounding dry grass which got out of control and approached the rear car door. You were still trapped in the car, but he then let you out. The car was then destroyed by fire.
47Bryers took you to a creek bed where the two of you hid while sirens sounded, and a helicopter circled the area. After a couple of hours, he left to try and get a lift, but he did not return so you made your way back to Melbourne by taxi and train and Mr Philips picked you up from the station.
48The car had been one you had hired to replace your own car which Bryers had destroyed. He was later gaoled for the car fire.
49In your record of interview on 6 May, you told police about Bryers' treatment of you. You said he did not allow you to lead a normal life and that when in his company you had no control over anything. He directed you to sell drugs and insisted that you carry them on you.
50It was against this background that you met the covert operatives. This happened when you went to Wangaratta Police Station to collect your mobile phone after it had been taken by the police. You got chatting to the covert operatives, known to you as, Kayla and Chris and you regarded them as normal people in contrast to Bryers. You said you enjoyed their company and responded to their questions as to whether you knew local people who could supply drugs.
51In this way you became involved in the trafficking leading to your arrest on 6 May. You told police that Bryers told you to continue engaging with the covert operatives and he took the money you made during this period.
52I return now to your early background. At the age of 16 you took an overdose of medication, and this led to outpatient psychiatric treatment and later to two admissions to the Melbourne clinic. It is unclear whether a formal diagnosis was ever made but it appears that you did have significant mental health problems at that time.
53You used cannabis and alcohol as a teenager but not for the past 10 years. You began using methamphetamine intermittently three years ago by smoking rather than injecting.
54You did well at school, but your education was disrupted by moving school during Year 11 and again during Year 12. You then completed two years of a Bachelor of Business at university but lost interest. Years later you tried to complete the degree but found it too difficult as a single mother of a two-year-old working at the same time.
55Over the years you worked for Kentucky Fried Chicken as a manager in several different locations in Melbourne and then as a bookkeeper for Press Coffee.
56When pregnant with your son in 2010, you began a relationship with Bryers who was not the father of your son. In 2014, Bryers was gaoled for six months for offending against you. When released he moved to Tasmania, and you continued working and looking after your son. In February 2017 you began working for A1 Signs and at that time, Bryers contacted you and returned to Melbourne and your relationship recommenced.
57The thefts began in December 2017, as I said before, and this was in response to Bryers need for money, as you described it. Just to clarify some of those previous remarks, in May 2018 you made a statement to the police concerning Bryers' abusive behaviour. He was gaoled again in July 2018 and released in March 2019.
58In April 2020, you made a second statement regarding Bryers abusive behaviour, and he was again gaoled from April to November 2020. The statements refer to his abusive, controlling, and violent behaviour towards you, putting you in fear that eventually he was likely to kill you.
59You explained to Dr Best that the thefts began when you were working from home and Bryers worked out that you had access to all the business accounts at A1 Signs. He threatened you that your son would be harmed if you did not give him some money for gambling and you obtained money for him in order to protect your son. You stated that you did not go to the police because when you had done so previously, his abuse had escalated.
60Dr Best diagnosed Post-traumatic Stress Disorder and you told her that you were already on a waiting list for appropriate psychological treatment. You told Dr Best that you had been diagnosed as an adolescent with Borderline personality disorder and Dr Best was unable to comment on this, other than to say you presented with a strong self-image and sense of self which puts you in good stead and you seem to be maturing out of your personality difficulties.
61She noted that abstinence from substance abuse would likely reduce your risk of poor mental health. She stated in her report that your impaired mental functioning means that your judgment, rational thinking, and ability to make calm and reasoned decisions are likely to have been impaired at the time of the offending and that a custodial sentence would weigh more heavily upon you than for a person not so affected.
62In a supplementary report, Dr Best stated that because you suffered from Post-traumatic Stress Disorder, living with a violent partner would have meant you were persistently in an aroused state and hypervigilant for trauma which would have had a significant impact on your ability to exercise judgment. Dr Best added a note that cumulative trauma can occur in abusive relationships leading to Post-traumatic Stress Disorder.
63You have put your time in custody to good use by engaging with a psychologist from Forensicare and have also been having specialised trauma counselling through WestCASA with Samantha Taylor. Ms Taylor reports that in prison you have experienced flash backs and nightmares and high anxiety, but you have engaged very well with counselling and are very strongly motivated to look after your son when released with the support of your extended family.
64Your psychological impairment also adds to the burden of your imprisonment with the risk of causing an adverse effect on your mental health. This was conceded by the prosecution if I was to be satisfied that you do suffer from Post-traumatic Stress Disorder.
65The evidence of your experiences with Bryers over many years, combined with your childhood experience of sexual abuse, provide the foundation for the conclusions drawn by Dr Best and confirmed by those treating you in prison.
66With reference to the principles in Verdins v R [2007] VSCA 62, I can place considerable weight on the burdensome nature of your imprisonment brought about by your mental state and I take that into account in sentencing you.
67Mr Lawrence submitted originally on your behalf, that the Verdins principles apply in relation to the theft charges to reduce your moral culpability. Mr McGarvie adopted this submission, which was resisted by the prosecution. Mr McGarvie relied on the opinion of Dr Best that the symptoms of Post-traumatic Stress Disorder affected your ability to think clearly and exercise appropriate judgment.
68While conceding that those symptoms can wax and wane and so might not have operated consistently over the offending period of two years and three months, your anticipation of further violence from Bryers may have impeded your ability to think clearly. During that time your thinking, according to Dr Best, would also have been affected by a persistent aroused state of hypervigilance, as I said a moment ago, because of previous abuse, which would also have impeded your judgment.
69Dr Best considered that the thefts you perpetrated were indications of dysfunction rather than proof of your ability to function well. I accept Dr Best's evidence and conclude that you do suffer from Post-traumatic Stress Disorder which did adversely affect your judgment and decision making and accordingly your moral culpability for the thefts is reduced to a degree.
70It was not submitted by Mr McGarvie that the Verdins principles also apply so as to reduce your moral culpability in relation to the drug trafficking charges but that the ongoing domestic violence you were suffering has a similar affect.
71I have referred to that more recent experience in some detail. Despite your many attempts, including reports to the police and the three prison terms imposed on Bryers, you continued to be subject to his coercion and abuse and the inevitable conclusion is that your moral culpability was reduced in a similar way.
72Having pleaded guilty, at an early stage, in relation to both matters, the pleas are valuable in assisting the criminal justice system, particularly at this time when the pandemic has caused long delays. Your pleas have avoided trials of some complexity, and importantly you have spared witnesses from having to come to court and give evidence.
73Your time in custody has been during prison lock downs and the restrictions associated with the pandemic. For these reasons, you are entitled to a meaningful discount on your sentence.
74I also accept your plea as an indication of remorse and acceptance of responsibility. Indeed, you were co-operative and candid in your interviews. There are indications of good prospects for rehabilitation, such as your strong work history, limited criminal offending with no prior convictions, support of your family and your engagement with professionals, as well as a promise of employment with your sister. As I said before, you are highly motivated to resume the care of your son.
75Of course, the need for general deterrence is important in a case like this, where in each case, the offending can cause great harm to victims and where community protection is important. The court must denounce both types of offending and impose a sentence reflecting those needs. But general deterrence is of somewhat reduced significance because of your circumstances, as already outlined.
76Whilst specific deterrence has a role to play, a slightly reduced focus on it is also warranted. It is likely that the experience of imprisonment and the prospect of further imprisonment should you offend again, will help deter you from further offending.
77I take into account, in a general sense, the 22 days of detention following your arrest for the trafficking charge dealt with in the Magistrates' Court. That time was not used in sentencing you because prison was avoided. Hence it is not available as time served.
78In having regard to the principle of totality, I have considered your offending overall, in the context of the long-term adverse influences in your life. By reason of your troubled earlier years, you were vulnerable to the cruelty and fear inflicted by your partner under whose influence much of your offending occurred.
79You were also vulnerable to being drawn into drug trafficking with the covert operatives who presented as the normal people you would have liked to have had as your friends. You fell into conversation with them at the police station and you lacked the clarity of thought and decision making which might otherwise have led you to have avoided such a situation leading to serious further offending.
80As a consequence, and taking into account the other matters to which I have referred, I will be exercising considerable leniency justified by your personal circumstances.
81Although I considered the imposition of a Community Correction Order for the theft charge, for which you were found suitable, I have determined that the charges are too serious.
82As for the trafficking charge, it is a category 2 offence for the purposes of sentencing, and it attracts s5(2H) of the Sentencing Act. It provides, in effect, that the court must make an order for imprisonment but excludes a term of imprisonment combined with a CCO.
83The legislation provides for an exception in the case of impaired mental functioning which is not met in this case. The other exception allows for prison to be avoided where there are substantial and compelling circumstances that are exceptional and rare. That does not apply in this case.
84I sentence you as follows, Ms Jackson. For the charge of theft, I sentence you to 18 months' imprisonment. For the charge of trafficking, I sentence you to 12 months' imprisonment. For the summary charge of committing an indictable offence while on bail, I sentence you to one month's imprisonment which is to be served concurrently.
85The sentence for the theft charges will be the base sentence for purposes of cumulation. I order that three months of the sentence for the trafficking charge is to be served in cumulation upon the base sentence. This results in a total effective sentence of 21 months.
86I order that you serve a minimum period of nine months before being eligible for parole.
87You have been in custody for 215 days of pre-sentence detention and I declare that time to be reckoned as already served and I shall note that on the court record.
88The prosecution seeks an order for compensation in the sum of $7,500.
89Now, Mr McGarvie, I'm not sure whether there's consent to that, do you have instructions?
90MR McGARVIE: That's not opposed, Your Honour.
91HER HONOUR: Thank you. Under s6AAA of the Sentencing Act, if you had pleaded not guilty to these charges, I would have sentenced you to three years' imprisonment with a two year non-parole period. Can I just check as to whether the 215 days is accurate.
92MR SAUNDERS: On my count it is, Your Honour.
93HER HONOUR: Thank you. Are there any further matters - there's a disposal order too and I make that order.
94MR McGARVIE: If the court pleases.
95HER HONOUR: Mr Saunders, are there any other matters?
96MR SAUNDERS: No, thank you, Your Honour.
97HER HONOUR: Anything else, Mr McGarvie?
98MR McGARVIE: No, Your Honour. Those are the matters.
99HER HONOUR: Thank you. In that case, this matter is completed and Mr Philips will return on 7 February. Thank you. I'll leave the Bench now and I'll leave the link open in case my staff need to talk to you about anything.
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