Director of Public Prosecutions v Jenkins
[2012] VCC 35
•1 February 2012
| IN THE COUNTY COURT OF VICTORIA | Revised |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-10-01785
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN BRIAN JENKINS |
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JUDGE: | HER HONOUR JUDGE HANNAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 1 February 2012 | |
CASE MAY BE CITED AS: | DPP v Jenkins | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 35 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M Hannan | |
| For the Accused | Mr A Brand |
HER HONOUR:
1 John Brian Jenkins, you have pleaded guilty to six charges and obtaining financial advantage by deception. The maximum penalty for each offence is ten years imprisonment.
2 Further you have pleaded guilty to one charge of conspiracy to cheat and defraud in relation to which the maximum penalty is 15 years imprisonment.
3 I note that you have no criminal record nor anything subsequent or outstanding.
4 The Crown's summary which has been tendered upon your plea sets out the factual circumstances which found your offending. In essence; You together with three co-offenders including your brother conspired to defraud, and then defrauded, your employer Safemate Anti Slip Pty Ltd by diverting payments for goods supplied by your employer's company to an account which was not operated by that company and from where you and your co-offenders were able to illegally obtain the funds.
5 The total amount defrauded pursuant to the conspiracy charge was $497,303.84 of which the Crown allege that each co-conspirator received approximately 25 per cent.
6 In addition you have pleaded guilty to defrauding your employer of a further $262,804.23 as follows.
7 Charge 1 is a rolled up charge and relates to the company monies totally $36,835.57 misappropriated by you between 2 June 2002 and 15 December 2003. $24,450.57 was paid into two accounts operated by you.
8 Charge 2 is a rolled up charge and relates to company monies totalling $44,489.13 misappropriated by you between 4 January 2004 and 15 December that year. Of that amount, $18,657.13 was paid into accounts operated by you.
9 Charge 3 is a common law conspiracy charge to cheat and defraud which relates solely to the 'MSF Industry scam' as it had been described, operated by all four co-conspirators between the period February 2005 and October 2007. It is common ground that Mr Fontana was the original architect of this deception but you were an active and willing participant.
10 Charge 4 is a rolled up charge and relates to company monies totally $57,728.22 misappropriated by you between 4 January 2004 and 15 December that year. The total amount of these funds was paid into accounts operated by you.
11 Charge 5 is also a rolled up charge and relates to a total of $32,990.58 misappropriated by you between 30 January 2006 and 29 November that year. All monies were again paid into accounts operated by you.
12 Charge 6 is a further rolled up charge relating to $62,088.20 misappropriated by you between 3 January 2007 and 27 November that year. You paid $61.088.20 into accounts operated you.
13 Charge 7 is the final rolled up charge and relates to a total of $28,672.53 misappropriated between 2 January 2008 and 14 May that year. Of this money, you paid $17,974.53 into accounts operated by you.
14 It is to be noted of course that this offending spans nearly six years.
15 Your three co-offenders all pleaded guilty before this court and Mr Stooke pleaded guilty on 11 August 2010 to conspiracy to cheat and defraud and two charges of theft and was sentenced to a total effective sentence of two years and nine months which was wholly suspended for three years. Mr Stooke had cooperated with police and gave evidence at the committal proceeding in relation to you and your brother. He further gave an undertaking to give evidence upon your trial. Matthew Fontana pleaded guilty in this court on 29 November 2010 to conspiracy to cheat and defraud and obtaining financial advantage by deception. He was sentenced on 13 December to a total effective sentence of three years which was wholly suspended for three years. Mr Fontana had also cooperated with police and gave an undertaking to give evidence for the prosecution on the trial of you and your brother. Your brother Steven Jenkins pleaded guilty before me on 17 May last year. Following a plea which was heard on 30 August, he was sentenced that day to a total effective sentence of 20 months which was wholly suspended with an operational period of two years. Your brother made a statement to police and like his co-offenders gave an undertaking on oath to give evidence at your trial.
16 You indicated an intention to plead guilty in early October 2011 although it seems that there had certainly been some discussion about you pleading to the charge of conspiracy prior to that date. You were arraigned on 14 October last year.
17 As regards to your role, you were in a significant position to trust being the accountant to your employer. It seems that Mr Fontana, as I have said, was the original architect of the scheme as it related to MSF Industries. Mr Stooke was the sales manager and your brother was a factory hand. It is fair to say that each man played his role as regards to the offending but the breach of trust perpetrated by you must of course be seen as serious given your position within the company. Such breach was ongoing over a significant period of time and involved in excess of 120 transactions. The amount of money defrauded was itself significant. This cannot be seen other than as calculated, planned, and sustained offending. I note that the company has now been paid full restitution by you and others. Your contribution was approximately $197,000 which you borrowed from your parents and you are in the process of repaying that sum.
18 Exhibit B is a victim impact statement made by Norma Sier on behalf of the victim company. What is clear is that this was a small company and you were indeed very much a trusted employee with full access to banking and financial records and the ability to conduct transactions on behalf of the company. There has been a clear financial impact upon the company and an emotional sequale for those who trusted you.
19 You are now aged 41 having been born on 30 September 1970. You are the second child of a sib-ship of four. You grew up in a loving and supportive family. You attended a number of primary schools but your father was keen for you to acquire practical skills and you were sent to a technical school for your secondary education. You completed Year 11 and subsequently undertook your VCE at TAFE. You then studied accountancy at Deakin which you did not complete, leaving to pursue work opportunities in administration and bookkeeping. You worked in that field until you were employed by Safemate, the victim company, in 1998 and you remained working for that company for some ten years until you were dismissed upon it being discovered that you were operating a tax return business on company time. It was not until some time after your dismissal that your offending was discovered.
20 Subsequent to this offending you have operated a motel in Torquay with your wife to whom you have been married for a number of years. There was a period of separation when your offending was discovered but in recent times you have all been trying to make the relationship work. The business has substantial debts it seems, on your wife's evidence, in excess of its current value but you are all working to maintain a home and income. Whilst you report a generally positive marriage, there were apparently issues which arose in the context of difficulties in successfully conceiving children which included you being on the IVF program for some four years. There were both emotional and financial implications which in combination with your escalating and excessive drinking proved difficult as regards your relationships.
21 You are the father to six year old twin boys who will start Grade 1 this week. You told Mr Newton in his report I should turn to in a moment that you became estranged from your wife and resorted to heavy drinking and gambling.
22 You report a history of moderate to heavy social drinking dating back to your teenage years and you have remained a heavy drinker since that time. You told Mr Newton that your drinking escalated in the context of marriage difficulties to which I have already referred and at that time you would typically consume ten standard drinks most days. You report drinking heavily with your co-offenders throughout the period of this offending. You still have a substantial drinking problem which indeed appears to have escalated subsequent to you being charged in relation to these matters. You estimate you would typically drink 20 standard drinks and upwards most days. You withdrawal will need to be carefully managed by custodial authorities.
23 In addition you report gambling and your bank records show ongoing withdrawals at various gambling venues which perhaps explains why your wife was unaware as regards this offending.
24 Your wife gave evidence upon your plea and she impressed as an honest hardworking woman trying to come to terms with the devastation you have reaped upon the lives of your family. She is understandably uncertain as to what the future holds.
25 Exhibit 3 of the testimonial from Ross Sutherland who has known you 11 years. He describes a man at significant odds with the offences to which you have pleaded and expresses confidence as regards to your future.
26 Exhibit 4 is a letter from your parents who I note, together with your in-laws and wife, were present at court upon your plea. They say you are remorseful and you clearly enjoy their ongoing support.
27 You saw Mr Newton for the purposes of assessment and report in November last year and again 25 January this year. Mr Newton says you impressed as a rather concrete and psychological unsophisticated individual with a poor level of self awareness. Upon assessment Mr Newton noted no symptoms of depression and said your mood was normal. He said there is no indication of any type of psychosis nor any form of thought disorder nor any symptomology consistent with a psychological disorder. He estimated your intelligence to fall within the average range. Mr Newton unsurprisingly says that there is an unequivocal need for you to receive integrated treatment in relation to a drinking problem which is sufficiently severe to warrant a diagnosis of alcohol dependence. He says in the context of your reported level of drinking, it is plausible that alcohol intoxication impaired your judgment at the time of this offending. It should of course be noted that self-induced intoxication does not provide any defence nor really reduce your moral culpability as regards to the offending to which you have pleaded.
28 It is Mr Newton's opinion that there are a number of dysfunctional dynamics within your personality reflected in your offending. Firstly he said the money allowed you to make real your fantasies of financial success. Secondly, you were able to assuage some of your disappointment and resentment of your working conditions and arrangement. And thirdly, he opines that there were some element of you in effect self-sabotaging a profession you found unfulfilling. Mr Newton says however that your symptomology is not sufficient to warrant a diagnosis of personality disorder, he nevertheless says that some counselling would be appropriate.
29 I think your prospects of rehabilitation are probably still guarded in light of your ongoing alcohol problem but they are clearly made more positive by your plea, your payment of restitution, the ongoing support of your family, and your lack of prior or subsequent offending. I think parole will be an important part in your rehabilitation.
30 Your counsel points to a number of matters you are entitled to have taken into account in mitigation. Firstly your plea of guilty. You entered such a plea at a relatively late stage in proceedings and at a time when all three co-offenders had been sentenced and given an undertaking to give evidence at your trial. Nevertheless, you saved the community the time and expense of a trial. You are entitled to the utilitarian benefits of that plea.
31 In addition I do accept that your plea is properly used as evidence of remorse. You have by your plea saved the witnesses the ordeal of giving evidence and saved the community the time and expense of a trial. I have taken those matters into account in your favour.
32 The sentence must manifest the community's denunciation of your conduct and impose just punishment.
33 The Crown submits that the appropriate sentencing range as a head sentence of four to five years with a non-parole period between two and a half and three years. Your counsel submits that while a four year head sentence may be within the range, that a non-parole period of 18 months, or if I am against him in that regard, a period below two years is within the range especially when regard is had to your prospects of rehabilitation.
34 As well as matters personal to you to which I have referred, I must take into account other relevant sentencing considerations. Both general and specific deterrence are of considerable importance in matters of this type. I must seek to deter not only you but others who would engage in like conduct. Your breach of trust is a significant matter and specific deterrence is relevant given the duration of your offending. Your sentence must manifest the community's denunciation of your conduct and impose just punishment. Any sentence must seek to promote your rehabilitation as that is not only in your interests but those of the community.
35 These are without doubt serious offences. In the circumstances I have no option but to impose terms of imprisonment. You are convicted and sentenced to be imprisoned as follows.
36 Charge 1 obtain financial advantage by deception, 12 months. Charge 2 obtain financial advantage by deception, 12 months. Charge 3 conspiracy, two years. Charge 4 obtain financial advantage by deception, 14 months. Charge 5 obtain financial advantage by deception, 12 months. Charge 6 obtain financial advantage by deception, 14 months. Charge 7 obtain financial advantage by deception, 12 months.
37 I direct that four months of the sentence upon Charge 1, four months of the sentence upon Charge 2, five months of the sentence upon Charge 4, three months of the sentence upon Charge 5, five months of the sentence upon Charge 6, and three months of the sentence upon Charge 7 be served cumulatively with the sentence upon Charge 3 and upon each other, making a total effective sentence of four years. I direct that you serve two years and three months before becoming eligible for parole.
38 I direct it be noted in the records of the court that were it not for your plea of guilty I would have sentenced you to a total effective sentence of six years with a non-parole period of three years and ten months.
39 Would you have a seat for a moment, please. I will have copies of the orders handed to counsel so you can check that you have got it right and then check the cumulation, please.
40 MR BRAND: It's correct Your Honour.
41 HER HONOUR: It does?
42 MR BRAND: Cumulation considering.
43 HER HONOUR: Thank you, very well. There is nothing further? Nothing factually that needs to be corrected?
44 MR HANNAN: No, Your Honour.
45 HER HONOUR: Thank you, remove the prisoner please, I have another matter to go on with.
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