Director of Public Prosecutions v Jones
[2019] VCC 339
•20 March 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-01527
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ABBEY JONES |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 March 2019 | |
DATE OF SENTENCE: | 20 March 2019 | |
CASE MAY BE CITED AS: | DPP v Jones | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 339 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords:
Legislation Cited: Crimes Act 1958 (Vic) - Sentencing Act 1991 (Vic)
Cases Cited:R v Verdins & Ors (2007) 169 A Crim R 581 OR (2007) 16 VR 269 - Binse v The Queen [2016] VSCA 145 - R v Zander [2009] VSCA 10 - Boulton & Ors v R [2014] VSCA 342 - DPP v Maxfield [2015] VSCA 95 - Alam v The Queen [2015] VSCA 48 - Hutchinson v The Queen [2015] VSCA 115 - Gul v The Queen [2016] VSCA 82; DPP v Venn[2017] VCC 1043
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. Upton | Solicitor for the Director of Public Prosecutions |
| For the Accused | Ms S. Lacy | Stary Norton Halphen |
HER HONOUR:
1 Abbey Jones, you have pleaded guilty to six charges of theft and one charge of obtaining a financial advantage by deception. These crimes arise out of events which took place between 21 June 2016 and 26 February 2018. The maximum penalty for the offence of theft is ten years' imprisonment and ten years' is also the maximum penalty for obtaining of a financial advantage by deception.
2
Your offending occurred, relevant to Charge 1, between 21 June 2016 and
6 March 2018; Charge 2, between 12 July 2016 and 22 February 2018; Charge 3, between 7 April 2017 and 16 November 2017; Charge 4, between 8 August 2017 and 16 January 2018; Charge 5, between 11 December 2017 and
23 February 2018; Charge 6, between 11 December 2017 and
26 February 2018; and Charge 7, on 30 June 2016.
3 Charges 1 to 6 are "rolled up" charges and, as such, the sentencing principles in R v Jones[1] apply. Charge 1 involved 32 transactions, Charge 2, 33 transactions, Charge 3, 27 transactions, Charge 4, 2 transactions, Charge 5, 4 transactions, and Charge 6, 11 transactions. A total of 109 transactions.
[1][2004] VCSA 68
4 It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of the plea hearing. It is sufficient for present purposes to simply say the facts in this case are most serious.
5 There are a number of aggravating features of your offending. The amount stolen, $158, 786.75, was significant. It was stolen over an extended period of time, approximately 21 months and involved a large number of transactions. In addition, you were in a position of trust, being having responsibility by your employer for all financial transactions for the owners corporations that Strata Base managed and from which you stole. Your counsel, Ms Lacy, correctly identified the aggravating features of your offending in her written outline for the plea submissions (Exhibit 1).
6 I turn to a summary of your offending. You are 37 years of age at time of sentence.
7 Between March 2015 and March 2018, you worked for Strata Base Pty Ltd, owned by Lucas Burton (Burton).
8 Strata Base Pty Ltd is the victim in this matter and is based in South Yarra.
9 It manages owners corporations in Melbourne and is a side business to Burton's Estate Agents. You were employed to manage Strata Base Pty Ltd and to manage bank accounts, organise board meetings, repair and test external labouring companies.
10 Turning to Charges 1 to 6 on the indictment. Some time around March 2016, after legitimately reimbursing yourself for petty cash purchases into your bank account from the company, you realised you could just transfer moneys straight into your bank account when you needed extra money and you started to do that.
11
Around the middle of March 2018, Burton was considering selling the business and wanted to know what the gross revenue of the business was. On
15 March 2018, he asked you to send him a copy of the bank statement for the Strata Base Pty Ltd cheque account.
12 That evening, Caishlan Simpson, sales secretary for Burton's Real Estate, telephoned Burton and told him she had seen you altering Strata Base Pty Ltd bank statements with PDF software on your work computer.
13 Burton then located on your office desk a poorly retyped bank statement.
14 On Friday, 16 March 2018, Burton received from you via email bank statements for five properties in the Strata Base Pty Ltd cheque account. Specifically the following properties: 80 Lynch Street (739984G); Hotham Apartments (724047L); Capital Hill (718473C); Nyko 1 (742291W/1); Nyko 2 (742291W/2); and Strata Base Pty Ltd cheque account.
15 The Strata Base cheque account had approximately $15,000 to $18,000 missing from it.
16
After finding the suspicious transfer from the 80 Lynch Street account, dated
25 May 2017, Burton contacted the Macquarie Bank to find out the details. He established the details of the account the money was transferred to and was able to determine it was into your account.
17 Burton questioned you but you denied knowing about the transfer. He asked you to pay the money back into the correct account.
18 At approximately 8.48 pm that same evening, you sent a text message to Burton stating that you had taken the money.
19 Burton did not speak to you again until Monday 19 March 2018 when he asked to speak to you about the matter. He asked you to cross-reference your bank accounts and report back to him by the end of the day. You said you had taken about $28,000, later saying it was $40,000.
20 On 23 March 2018, you sent Burton a proposed payment plan of $500 to $1,000 a month.
21 You were dismissed on 27 March 2018 and a thorough audit of the accounts was conducted.
22 A number of fraudulent transactions were identified as per the schedule attached to the indictment (Exhibit B). The total value of the thefts $158,786.75.
23 I turn to Charge 7. Around early January 2016, Shane Budak, an employee of Burton's Real Estate lent you $2,000. You told him it was for personal reasons. He knew you had broken up with your partner, felt sorry for you and gave you the money in cash. You agreed to pay him back as soon as possible.
24 You paid back $1,500. He asked you for the remaining $500 a couple of times and eventually received $500 via a bank transfer with a reference Abbey Jones. He assumed the money had come from your bank account. It was subsequently discovered that money was paid to him from the Hotham Apartment account.
25 You were arrested at your home on 1 May 2018, taken to Prahran Police Station and interviewed.
26 In that interview, you made full admissions to theft of the money from six Strata Base Pty Ltd accounts, having transferred the funds from those bank accounts to your personal account.
27 You said when Burton requested to see the bank statements, you panicked and downloaded a PDF editing program to try and alter the statements before sending them to him. You were unsure of the exact amount that had been transferred, however, thought it was approximately $40,000. You had bought a Harley Davidson motorbike and some other household items with the money.
28 Burton has confirmed you have repaid an initial $6,000 and an additional subsequent amount of $423.26.
29 You have pleaded guilty to these charges and you are entitled to have that fact taken into account in your favour and I do so. The community has, by your pleas, been spared the time and cost of a trial and witnesses have not been required to give evidence upon your trial. Further, I take into account in your favour you intimated early your intention to plead guilty to these charges. I note you also made full admissions to your offending in your interview with police, then at a committal mention on 30 July 2018, you indicated your intention to plead guilty.
30 In the circumstances, I am prepared to accept your plea of guilty indicates some remorse for your offending. However, I am concerned about the extent of your remorse, given the repeated nature of your offending involving a number of transactions.
31 The victim of your offending is not seeking compensation for the loss from you apparently, I was told, intending to recover that through the relevant account insurer.
32 I note you do not have any prior court appearances nor, for that matter, any pending or subsequent. You therefore come before the court as a person of otherwise good character.
33
Your counsel, Ms Lacy, prepared a written outline of matters relied and elaborated upon at your plea hearing. In her chronology, Ms Lacy appropriately noted the extent of your offending within the offence period, of between
21 June 2016 and 6 March 2018. Whilst I note when confronted by your employer on 16 March 2018, you admitted your involvement, you had offended on multiple occasions by that stage.
34 Your counsel, when addressing the objective gravity of your offending, acknowledged the significant amount involved, $158,786.75, over approximately 21 months, and involving many transactions. There were a number of transactions in each charge of offending which occurred on a regular basis over the relevant time.
35 It was acknowledged you were in a position of trust, handling all the financial transactions for the owners corporations that Strata Base Pty Ltd managed. There was not any co-worker or other person looking "over your shoulder" when you were doing your job, which gave you the opportunity to continue your offending until you were challenged by Burton when he sought to sell the business and needed banking details.
36 Ms Lacy submitted, however, your offending was unsophisticated in execution. However, in my opinion it is clear it did not need to be sophisticated. It was effective as it was. Ms Lacey also submitted it did not involve concealment or particular deviousness compared to other cases. That may be so, however, in your position of trust, your activity was not checked by any co-worker. It did not require concealment or particular deviousness.
37 Ms Lacy submitted it was likely to be detected. Maybe ultimately it was. However, in this case it was only detected when Burton was proposing to sell the business and it was nearly two years before it was detected.
38 Ms Lacy submitted you made a prompt confession to your employer. Initially, however, you indicated not being aware of it, however, I agree you did contact your employer by way of text that same evening saying you had committed the thefts.
39 Ms Lacy submitted you made immediate attempts to arrange payment and had repaid a total of $6,423.26, the initial payment of $6,000 relatively quickly the remaining amount shortly thereafter. No further payments have been made and no further payment plan entered into.
40 Ms Lacy submitted your offending was not simply induced by greed and that you did not bestow yourself with a lavish lifestyle. However, I note in the report of Mr Newton, his description of your offending from your instructions:
"Ms Jones said that despite this Paul had remained quite ambivalent about the relationship: apparently having 'second thoughts' about his divorce and engaging in interactions with other women as well. In response Ms Jones began to purchase extravagant gifts for Paul: for instance, purchasing a Harley Davidson motorcycle. She said that her financial resources were quite limited. Thus, in order to finance the everyday activities of the household and to afford the elaborate gifts she wished to purchase, Ms Jones began to steal from her employer." (underlining added)
41 You reported "relatively little being spent on herself". However indirectly benefiting you, I suggest, by keeping "Paul" 'on the side' in the relationship.
42 I was told you had been with this company for approximately three years from approximately 2015 till March 2018, at which time your services were terminated.
43 After that, you obtained work part time at a medical centre working approximately, as I understood it, 12 to 20 hours per fortnight and, in May 2018, as I understood, you obtained full-time employment, that time working both full time and part-time.
44 I was told you were responsible for your legal fees relevant to this court hearing and therefore did not have funds to repay any further moneys to Burton. You did not enter into a subsequent payment plan, as I understood, for the same reason.
45 Ms Lacy referred to you always having been in paid employment and urged that the 21 months over which your offending occurred was an aberration. I do not regard the extent of your offending as an aberration but I do, however, accept you have not offended other than that before me.
46 Details were provided regarding your personal history and background also contained within the reports of Dr Sharma and Mr Newton to which I shall shortly refer.
47 You are, as I have said, 37 years of age at the time of sentence, unmarried and without any dependents.
48 You are the eldest of three children. You have one older sister born to your father and a former partner. Your father ran a business and your mother joined Victoria Police when she was a child, becoming a sworn officer about 17 years ago.
49 You were raised in a loving family and supportive family that shared values of honesty and hard work. Your family were gravely disappointed in you, and I am sure they are.
50 You attended Billanook Primary School in Montrose then Ringwood Secondary College, performing sufficiently well academically, however, you had social anxiety, social isolation and were plagued by bullying.
51 You completed VCE in 1999 then completed the first year of a contemporary arts degree at Deakin University before deferring.
52 In 2016, you completed the first year of a nursing degree which you also deferred. You have not had any financial or accounting training.
53 Turning to your work history, you were working professionally as a dancer from a very young age until approximately 22 years of age.
54 You had worked full time since 2001, mainly in property management and a medical centre on Phillip Island.
55
Ms Lacy addressed me in relation to the report of Mr Newton, urging I find Verdins[2] principles applicable, as per her submissions. I discussed
Mr Newton's report at length with her. Mr Newton, a clinical and forensic psychologist, assessed you on 20 August 2018 and again on 1 October 2018. His report dated 3 October 2018.
[2]R v Verdins & Ors (2007) 169 A Crim R 581 OR (2007) 16 VR 269 (‘Verdins’)
56 On 20 August 2018, he carried out an evaluation of your mental status and reviewed aspects of your personal history, followed up in the phone conversation on 1 October 2018. He referred to a number of assessment tools utilised in testing you in August 2018.
57 The report was relied upon during your hearing, as I said, by Ms Lacy as enlivening some of the Verdins principles, and I will refer to that later.
58 Further details were provided in that report about your background and history, which I have read, however, will not repeat here.
59 In Mr Newton's report, you described social difficulties in your schooling, often being on the periphery of social groups, having no really close friends, often subject to bullying and harassment.
60 You outlined a number of relationships you have had since your mid-teens, described within the report.
61 Your relationship with "Paul" at the time of your offending was also a focus of discussion between Ms Lacy and myself. In order to finance the everyday activities of the household with him and to purchase elaborate gifts for him, you stole from your employer (report page 5 paragraph [21]).
62 You purchased lavish gifts for him and made the money transfers to accommodate that.
63 You reported to Mr Newton a long history of depressive mood disturbance which you said developed out of your experience of fear of evaluation and having been being ostracized and harassed by your peers.
64 You said you struggled with difficulties establishing a clear sense of identity, managing stress and regulating your emotional responses. You had a severe fear of abandonment.
65
You said you had received little psychological or psychiatric care to date, having first consulted a psychologist about ten years prior, however, discontinuing that treatment. You recently engaged with another psychiatrist, I believe was
Dr Trang, however, you have unable to continue treatment as you were now responsible for the cost of the sessions. You had been prescribed the antidepressant Pristiq.
66
You describe your offending as having occurred during a period of financial strain, finding your own salary inadequate to do what you wanted to do. You said you rationalised that this would be temporary, and that your partner would pay you back, at which time you would repay the money. In discussion with
Ms Lacy, it was apparent you did not have any plans for this proposed recommencement of repayment. I digress and note as discussed there were numerous transactions by you of money and each transaction, however, did not cause you to stop and desist from continuing to offend.
67 You had expressed remorse for your offending to Mr Newton and others.
68 Not surprisingly, you presented with a moderate level of emotional distress when you consulted Mr Newton.
69 Mr Newton opined that your emotional stress resulted in some "slight clouding" of your cognitive functions, although that was not further defined, with description lacking of also of "slowing" and "clouding" of your cognitive functions.
70 I discussed at length the conclusions in Mr Newton's report and submitted his report/opinions to a rigorous examination in light of your counsel's reliance on Verdins principles.
71 In my opinion, despite the detail in the report, "connection" to your offending was not clear. Nor the extent to your actual issues at the time of your offending and impact upon your offending.
72 In his opinion, you met the diagnostic criteria for persistent depressive disorder which "can" impact on your clear reasoning and decision making - albeit not further defined.
73 Mr Newton opined that should you receive an immediate term of imprisonment, there would need to be some precautions in place to ensure you were protected from impulsive acts of self-harm, although you disavowed any current intention to harm yourself.
74 Mr Newton referred to your dysfunctional personality "traits". Again, Mr Newton did not specifically describe those “traits” and their connection, if any, to your offending, also discussed by me with Ms Lacy.
75 Rather than meeting any particular criteria for a personality disorder, Mr Newton noted prominent "features" of dependent and borderline personality disorder (not further defined nor any "connection" to your offending). At conference, however, he noted no indication of any thought disorder or psychosis with your underlying intelligence he estimated in the high end of the average range. You were, however, and I note, not surprisingly, showing depressive symptoms relevant to your current situation before the court.
76 In the opinion of Mr Newton, your thoughts were "mildly clouded" by your depression and that you manifested a degree of cognitive slowing, again not further defined relevant to any "connection" to your offending. Your reality testing and moral reasoning, however, he concluded were intact.
77 In the opinion of Mr Newton, you should participate in ongoing personal counselling to treat your emotional distress and dysfunctional personality traits. In his opinion, your mental state would likely deteriorate if you received an immediate custodial disposition.
78 In the opinion of Mr Newton, your prospects for rehabilitation were positive, in part due to your embarrassment regarding your offending, and remorse for it, that you did not have any prior court appearances or convictions. Further, you had stable accommodation, good work skills and access to good professional support, albeit not yet undertaken.
79 I also received a report from Dr Sujit Sharma, consultant psychiatrist, dated 21 September 2018 who assessed you on 20 September 2018. You said you offended because you were in a manipulative relationship, paying for your partner's needs. You had no doubt you knew that what you were doing was wrong. You no doubt knew what you were doing was wrong. I discussed this with Ms Lacy also, the decision of Binse v The Queen[3].
[3]Binse v The Queen [2016] VSCA 145 [70] (‘Binse’)
80 He observed you were insightful into your difficulties and displayed fair judgment at the time of interview. You denied any acute thoughts or plans of hurting yourself or others.
81 Dr Sharma concluded that you "[seemed] to have generalised anxiety disorder, panic disorder and dysthymia". There was no evidence of bipolar affective disorder. He recommended continuation of Pristiq medication.
82 Before me were a number of character references.
83 A reference from Audrey and Ian Jones, your parents, dated 27 February 2019. They were shocked, angered and disappointed by your offending. You were a lonely person, and your siblings having partners and children. You were aware you had let the family down by shaming them in this way and it impacted on your relationships with your siblings. You were remorseful and embarrassed by your offending. You were currently working a full-time and a part-time job and had sought professional help.
84 I was told your mother and brother-in-law were in court to support you during your plea hearing.
85
Also a reference from Josh Danne, General Manager, Strata Launch, dated
1 March 2019. His is the general manager of an owners corporation business and, as I understood it, your bother-in-law. He was staggered at the revelation of you having committed these offences. You regretted your offending. He understood you were attempting to pay the money back. He described your past relationships. He was dismayed to hear of your offending as he worked in the same industry in which you were employed at the time of your offending. You had expressed remorse for your actions. You had the continued support of your family.
86 There was a reference from Elizabeth Dooley dated 28 February 2019, who has known you all your life. You were regretful for your offending. You had been a consistent helper at the Royal Children's Hospital Appeal each year. You have said that you would not do anything like this again.
87 There was a reference from Wendy Tate dated 25 July 2018, who has also known you all your life. She described you as a kind, soft-hearted and a caring individual. Your offending, she said, was out of character.
88 There were no victim impact statements before me.
89 Ms Lacy also relied heavily during the course of your plea hearing, as previously stated in her submission, on Verdins principles, relying upon the reports of Mr Newton and Dr Sharma.
90 I discussed in great detail with Ms Lacy many parts of the report of Mr Newton relevant to this issue. In my opinion, Verdins does not moderate moral culpability or general deterrence in your case.
91 That is a very brief summary of the discussion I had with Ms Lacy and a transcript of the plea hearing should be read in conjunction with these brief sentencing remarks to provide the detail of that discussion.
92 Ms Lacy urged that Dr Sharma's report was largely "consistent with Mr Newton's opinion".
93 As I said, Ms Lacy urged Verdins principles were applicable. She also urged that prison would weigh more heavily upon you because of your mental impairment and that there was a serious risk of deterioration of your mental health if you were imprisoned. For the latter submission, Ms Lacy relied upon the report of Mr Newton (paragraphs [46-47]).
94 In my opinion Verdins principle 5 is enlivened to a degree. I note, relevant to principle 6, appropriate medication can be provided as required, referred to in Mr Newton's report (paragraph [46]).
95 Ms Lacy submitted that you had good prospects of rehabilitation and I accept that is so. In that regard, she urged you had seen Ms Alice Trang, psychologist, for approximately 12 sessions between March and July of 2018. That is definitely a good start.
96 Turning to disposition, Ms Lacy submitted that for offending of this type it was not always the case an immediate term of imprisonment would be imposed. I agree a term of imprisonment is not the only disposition in cases involving similar offending. I am aware also that a term of imprisonment must always be the last resort of the court. Ultimately, I must determine the appropriate sentence based on the gravity of your offending, taking into account all matters in mitigation and personal to you.
97 Ms Lacy urged I sentence you to a community corrections order, such having both punitive and therapeutic components. Ms Lacy referred to a number of comparative County Court decisions in which community corrections orders had been imposed. I have read those and some differences are apparent to your offending.
98 In DPP v Felton[4] the offending was over 12, not 21 months; in DPP v Venn[5] there were 22 authorised payments, not 109. A significant amount of that had also been repaid. There was also, in that case, a delay between reporting the offending to police and being charged, which was a relevant sentencing consideration in that case.
[4][2007] VSCA 65
[5][2017] VCC 1043
99 In DPP v Chapman[6], the offending occurred over a much shorter period of time, and there were gambling issues. In DPP v Beznidenhout[7], there was one charge before the court involving 65 "transactions" or orders with offending over 15 months.
[6][2016] VCC 231
[7][2016] VCC 1070
100 Just that brief summary shows how difficult it is comparing cases factually as facts vary enormously case to case, as do matters personal to an offender in mitigation of sentence.
101 Ms Upton, who appeared on behalf of the prosecution, submitted the appropriate disposition was an immediate custodial term. A combined disposition involving an immediate term of imprisonment with a community corrections order would be within the range of appropriate dispositions.
102 Ms Upton submitted there was the need for general deterrence when sentencing for this offending. I agree.
103 Ms Upton provided a table of cases that reflected a wide range of sentences previously imposed for this type of offending. In your case, Ms Upton referred to the significant amount of money stolen by you, the number of transactions undertaken, and the period of time over which your offending occurred. I agree.
104 Ms Upton conceded your personal circumstances were also a relevant sentencing consideration and, of course, they are.
105 Addressing the sophistication of your offending, Ms Upton referred to the number of transactions over 21 months, that you were the only employee tasked with the accounts of the firm, no co-workers to "look over your shoulder". That, she said, put you in a high level of trust by your employer.
106 Ms Upton conceded that in the first instance, that is the first occasion, your offending was "opportunistic", however, subsequent to your first offending, it was not. She submitted it was not inevitable you would be caught and, in your case, you were only "caught" after an inquiry from your employer regarding the finances of the business before your theft was known.
107 Regarding the submission that you immediately said you had committed the offences, Ms Upton referred to you trying to hide your offending by downloading a program to edit the statements, and I also note that. It was clear, she said, you knew what you were doing was wrong. I agree.
108 Regarding your remorse, the prosecution accepted, as do I, you expressed remorse in the police interview and subsequently. Also, that you immediately paid back some of the money. Ms Upton urged there was, however, a difference between remorse at being caught versus genuine remorse for your offending. She submitted a payment plan that you had "stuck to" would indicate remorse for you offending, as opposed to being sorry you were caught. You had, she said, made minimal reparation.
109 Turning to the Verdins principles, Ms Upton conceded there were certain aspects of your personality that led you to be in the position you were, i.e. regarding "Paul". However, it was clear she urged, from the reports, you made a decision to offend; in essence, wanting to be "loved/accepted" by him.
110 Turning to Ms Lacy's submissions regarding Verdins, Ms Upton submitted those principles involved a "high bar". It was your choice to offend with no material to support that decision as being made as a result of depression, rather to keep "Paul" happy.
111 The report of Mr Newton, she said, provided some details of your personal circumstances, which were relevant and consistent with general sentencing principles. However, Ms Upton submitted that it did not reach Verdins application stage. That from his report, Mr Newton concluded you were reasonably intelligent and that your judgment may have been "clouded", given your personal traits. That, she urged, was not sufficient to enliven Verdins.
112 Specifically addressing limbs 5 and 6 of Verdins, Ms Upton referred to R v Zander[8] (paragraph [32]). Whilst accepting that prison would be more difficult for you than someone without your issues, Ms Upton urged Verdins was not applicable, rather general sentencing principles could be applied in mitigation of sentence, she said, "to a degree". As I previously stated, I found Verdins principle 5 to be applicable.
[8][2009] VSCA 10
113 Ms Upton conceded your prospects for rehabilitation were positive.
114 There was, she submitted, the need for specific deterrence when sentencing you, that albeit you did not have any prior court appearances or anything subsequent or pending. She referred to the duration of your offending and the number of occasions on which it occurred.
115 Ms Upton submitted there was a need for general deterrence and denunciation for your offending.
116 Addressing Ms Lacy's sentencing submissions, I am, of course, aware of Boulton & Ors v R[9] and the many subsequent pronouncements of the Court of Appeal relevant to community corrections orders. I am aware such an order has both a punitive and rehabilitative aspect to it, and that in Boulton, the court is urged to "rethink the conventional wisdom about whether prison is really the only option".
[9]Boulton & Ors v R [2014] VSCA 342 (‘Boulton’)
117 Community corrections orders have been referred to and addressed in a number of cases since, including DPP v Maxfield[10], Alam v The Queen[11], Hutchinson v The Queen[12], and Gul v The Queen[13], mindful as I am of the different offending in those cases to yours, as well as other cases as I have discussed, Boulton.
[10][2015] VSCA 95
[11][2015] VSCA 48
[12]Hutchinson v The Queen [2015] VSCA 115 (‘Hutchinson’)
[13][2016] VSCA 82
118 I did not, however, understand Boulton to remove the requirement that a sentencing judge must take into account all of s.5, Sentencing Act 1991, nor did I understand Boulton to mean that sentencing principles, as stated by the Court of Appeal and other courts, relevant to your type of offending, now amount to nought. Nor do I understand Boulton's decision to remove the instinctive synthesis when sentencing.
119 I also do not understand Boulton to remove the need for me to be mindful of the maximum penalties applicable to each of the charges. Further, I note Priest JA observed in Hutchinson that:
"it should not be thought that Boulton offers a 'Get Out of Jail Free' card in situations where a sentence of imprisonment is necessary in a given case to satisfy the various purposes for which a sentence may be imposed" [17].
120 To impose the disposition urged by Ms Lacy of a community corrections order on its own, in my opinion, would not appropriately address all relevant sentencing considerations, even considering matters personal to you and in mitigation of your sentence.
121 As well as matters personal to you, to which I have referred, including your prospects of rehabilitation, which I find to be good, I must also take into account the need for general deterrence which is of particular importance in a case such as this.
122 There is also the need for specific deterrence when sentencing you, albeit I am well aware you do not have any prior court appearances, nor anything pending or subsequent. Your offending, however, occurred over a significant period of time, involved multiple transactions, multiple victims and a large amount of money.
123 I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. I am comforted in that regard in part by the nature of this offending and your rehabilitation prospects which, as I have said, I regard as being good.
124 I am called upon by the Sentencing Act 1991 to manifest the community's denunciation of your conduct and generally to impose a just punishment.
125 In my opinion, the appropriate disposition involves a term of imprisonment together with a community corrections order.
126 To that end, I arranged for you to be assessed for a community corrections order and received a report from Alexandra Osborne. You consented to such an order being made and you were considered suitable for such an order by the assessing officer.
127 As part of your sentence, I intend to sentence you to a community corrections order but before I do so I must tell you about the proposed order so may consent or otherwise to being on it, so you have to really listen carefully to that.
128 The order would be with a conviction recorded and for a period of two years.
129 There would be following core conditions apply to that corrections orders, and they apply to everybody as well as to you, and these are as follows:
130 You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment.
131 You must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee - that means a Corrections worker - during the period of the order, which is for two years.
132 You must report to the Community Correction Centre- I think Box Hill is nearby, was it nearby - two clear days after your release from custody.
133 You must notify the Secretary, or his or her nominee, i.e. a Corrections worker, of any change of address or employment within two clear days after that change.
134 You must not leave Victoria except with the permission of the Secretary to the Department of Justice, i.e. a Corrections worker.
135 You must comply with any direction given by the Secretary, i.e. that is the Corrections worker, for the Secretary to give to ensure you comply with the order. Now, they are all core conditions and they apply to everybody as well as to you.
136 There will be a number of other conditions attached to the order and they apply to you.
137 For clarity, I do not intend to order a condition involving community work, and I do that in part as a result of a term of imprisonment also being imposed. So I am not going to impose any community work.
138 However, you must be under the supervision of a Community Corrections officer for a period of two years.
139 You are required to be supervised, monitored and managed as directed by the Secretary, i.e. a Corrections worker.
140 You must undergo mental health assessment and treatment, including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility as directed by the Regional Manager, i.e. by Corrections.
141 You must attend for review of your progress and compliance or otherwise with the conditions of order by coming back before me for judicial monitoring in 12 months' time from today's date that is in - I will give you the date in a minute - 12 months from 20 March 2019 and it will be at 9:30 on that date. But I will give you the date in a minute..
142 I can only impose a community corrections order if you agree to such an order being imposed. So I need got to tell even more about it, all right?
143 I have to advise you that if you contravene or breach that community corrections order by committing any further offences you can be charged and a sentence of imprisonment is one of the options that can be imposed for that breach itself.
144 You can also be re-sentenced for the offences and the charges that are before me. And one of the options, of course, available includes a further term of imprisonment.
145 So you have got to be extra careful for the next two years after your release from prison. No committing any further offences that might incur a term of imprisonment, otherwise you are back before me and I have to re-sentence you on the seven charges that are before me. So you have just got to be extra careful.
146 I also have to tell you that if you fail to comply with any direction of the community service worker or the Community Corrections officer, if you like, a substantial fine can be imposed.
147 Hold on, now did you go through all of these things with her because I am going to ask whether she consents as part of the order to that.
148 MS LACY: We did discuss the order.
149 HER HONOUR: Yes.
150 MS LACY: But could I just approach her quickly to confirm that she knows that.
151 HER HONOUR: Yes, find out if she consents or not. It is a part of the sentence, I have made that abundantly clear, but does she understand the terms of the order, proposed order. All right, you had a chance to explain it?
152 MS LACY: Yes, she does, yes.
153 HER HONOUR: All right. Now, what I am asking you, you heard all the core conditions of this proposed order, I have told you about the extra conditions that also apply to you, I have told you about what happens if you breach this order and the possible - and the re-sentencing on the seven charges, that is the six plus one that is before me on the indictment; now, do you consent to that order being made in those terms?
154 OFFENDER: Yes.
155 HER HONOUR: Nice loud voice.
156 OFFENDER: Yes.
157 HER HONOUR: All right. Now, I discussed with both counsel whether or not an aggregate sentence could be imposed in relation to each of the seven charges. Both counsel agreed such would be appropriate, as do I, given the sentence that I intend to impose.
158 So I therefore sentence you as follows:
159 On Charges 1 through to 7 inclusive on Indictment J11130387, you are convicted and sentenced to five months' imprisonment, thereafter to be on a community corrections order for a period of two years with the core and discretionary conditions to which I have just referred.
160
Pursuant to s.s18(4) Sentencing Act 1991, I declare you have spent 15 days - I would like that checked - up to and including yesterday, which was
19 March 2019 in custody by way of pre-sentence detention and I direct that be entered into the records of the court - is that correct, 15?
161 MS LACY: Yes, Your Honour.
162 HER HONOUR: Great.
163 Had you pleaded not guilty to these seven charges and been found guilty of them by a jury verdict, I would not have imposed a community corrections order. Rather, I would have sentenced you to a term of imprisonment of three years and set a non-parole period of two years.
164 The prosecution made application for a forensic sample pursuant to s.464ZF Crimes Act 1958. The offences of theft and obtaining financial advantage by deception are forensic samples and a sample is sought pursuant to the section of that act.
165 Counsel who appeared on your behalf, Ms Lacy, did not oppose the making of the order. It will be for a saliva sample and I make the order on the basis of the seriousness of your offending. And I must advise you the authorities or police may use reasonable force to obtain that sample.
166 I did not have a note of any other orders beings ought. No. All right, well I have the Corrections order there. By the way, that judicial monitoring is, in fact, the same date, 20 March 2020 at 9.30 am and I am told that is a Friday, all right. So that will be about, give or take, after the five months. So she is back about 12 less 5, you know, after the - - -
167 MS LACY: Seven months.
168 HER HONOUR: About that, about that, yes.
169 MS LACY: Seven months in.
170 HER HONOUR: All right, so I will see how she is going in the community in that seven month period. All right. Now, you have checked that that has not defaulted back to the other problem we have once before? No. All right. You did not put any community hours? Yes - no - all right, you can take that back. Take a pen with you. Did you want to back, Ms Lacy? You were not stopped?
171 MS LACY: No, no.
172 HER HONOUR: No, sorry. Yes, feel free. It is the community corrections order. Just make sure that it is in the right terms. Thank you. I have to sign it. There you go. All right, I will just send the order back, I signed the wrong boxes. If you want me to redo it, it was not opposed, as opposed to consented to, so I have changed it. Just check if it is too messy for you and send me another one later, that is the 464ZF. Yes, you can see - so if you want a nice clear one without the error it, I just checked that it was not opposed. If you want to send it forward and I will do another one that is correct.
173 MS UPTON: There is no difficulty with that, Your Honour, that should suffice, yes.
174 HER HONOUR: Sure, all right, I will leave at that. If you change your mind.
175 MS UPTON: Thank you.
176 HER HONOUR: All right, is there anything further in the matter?
177 MS LACY: No, Your Honour.
178 HER HONOUR: All right then, thank you. Thanks, Ms Jones, you need to go.
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