Director of Public Prosecutions v Kashani

[2019] VCC 1669

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00189

DIRECTOR OF PUBLIC PROSECUTIONS

v

PATRICK KASHANI

---

JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	10 October 2019
DATE OF SENTENCE:	11 October 2019
CASE MAY BE CITED AS:	DPP v Kashani
MEDIUM NEUTRAL CITATION:	[2019] VCC 1669

REASONS FOR SENTENCE
---

Subject:  Sentencing

Catchwords:  Theft from employer; selling items valued between $116,000 - $134,000 in total; loss to employer uncertain; offender’s personal gain between $65,000 - $80,000; offending over almost one year; betrayal of trust by long-term employee; offender aged 49 with no prior convictions and strong history of employment, stable family, and new employer supportive.

Legislation Cited:     Sentencing Act 1991

Cases Cited:DPP v Bezuidenhout [2016] VCC 1070; DPP v Levy [2017] VCC 837; Boulton v R [2014] VSCA 342

Sentence:2-year Community Correction Order with unpaid community work only, and 12 month good behaviour bond

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Hannan	Office of Public Prosecutions
For the Accused	Mr P. Tiwana	Dribbin & Brown Criminal Lawyers

HER HONOUR:

1Patrick Kashani, you have pleaded guilty to two charges of theft from your former employer. 

2The maximum penalty for each charge of theft is 10 years' imprisonment. 

3The charges arise from some of your conduct during 2016 and 2017.  At that stage, you were employed as national manager of IT and customer service centre for a business called Prixcar Services.  You had been employed by the predecessor of that business since about 2001. Prixcar Services was a national business engaged in automotive transport services, employed many hundreds of people, with annual turnover in the multimillions of dollars; the precise numbers are disputed as between your former employer and you. There was some 24 people working under you nationally.      

4As part of your duties, you placed the orders for IT devices and services.  Also as part of your duties, you had negotiated a contract with Telstra for your employer's internet, landlines and mobile phone services.  That was a contract worth approximately $1.5m per annum to Telstra. As is apparently common in the industry, Telstra provided what was called a 'loyalty fund' to Prixcar, known as the 'Telstra technology fund', which allowed rebates up to total monetary limits for the employer's purchases of hardware and software from Telstra. 

5Charge 1 relates to 59 items, being mainly mobile phones and tablets, for which you placed orders with Telstra in the name of your employer, which were invoiced to your employer, and which items, when they arrived, you then sold on your personal eBay account, the proceeds being paid into your own bank account. Between February 2016 and January 2017, you ordered devices with a total cost of $116,256.56.  You sold them on eBay for a total of about $65,000.  The ordering of those items for that purpose was outside your authority, and you did not account to your employer for any of the amounts for which you sold the items.  This conduct is the basis of Charge 1, of theft of those devices.

6Charge 2 arises from your conduct in June 2017, in relation to some 320 Motorola scanning devices, which had been used by delivery drivers, and were being replaced with newer devices.  You arranged through another employee for these to be sold on eBay, after you had tried, yourself, to sell them without success.  I think there was also a garage sale attempt. A total of $6900 was received by you on the sale of these items.  You gave part of that to the man who had arranged the sales as a wedding present, and also spent some of it on a lunch and a dinner for your staff.  Although the prosecution opening states that the value of these items was $17,760 - and I have just asked how that was calculated - you seem to dispute that that was the value of the amount received for those goods.  You admit through your plea of guilty to this charge to stealing these items that belonged to your employer.   

7I must assess the seriousness of your offending both objectively and as to your personal culpability for it. 

8The maximum penalty of 10 years' imprisonment for theft is an objective reflection of the seriousness of offences of theft, but covers a very wide range of offending.  Every theft involves dishonesty. Theft from an employer is a particular category because it inevitably involves a betrayal of trust. You had long held a senior trusted role with this employer, and you knowingly used your familiarity with the systems of ordering and paying for such electronic devices to bring about personal gain; that was clearly a betrayal of trust.    

9I am told that your rationale for the offending under Charge 1 was partly a perception by you that you were not being adequately paid for the extra work you were doing for certain projects of your employer.  I am told that you had asked for payment for the extra work being done, both for you and your staff. I am told that the employer denies any failure to pay staff proper award rates, and it seems you were paid a managerial salary outside of award rates.  I am not in a position to assess whether you had any legitimate grievance about your own or your staff's pay, and in any event, no such grievance could justify theft.    

10I am told that you were also experiencing very considerable stress, financially and personally, over the period of the offending under Charge 1, and possibly also Charge 2.  Apparently, having commenced to enter lottery syndicates within the workplace, you had succumbed to personally spending extreme amounts on buying lottery tickets – I am told, to the extent of approximately $1000 per week.  This was putting strain on your personal and family finances, including home mortgage repayments, and because you had not disclosed it to your wife, it was putting personal stress on you.  Further, to try to cope with the personal stress, you were drinking alcohol excessively. These matters may have swayed your judgment in undertaking this offending, but clearly, by the fact that the offending under Charge 1 continued for almost a year, you displayed prolonged dishonesty, rather than a single lapse or single poor decision which you regretted soon afterwards. 

11I am told that you convinced yourself that there was no loss involved to your employer.  This was because you had, yourself, negotiated the contractual arrangement with Telstra, which entitled your employer to substantial rebates for such goods.  You apparently still believe that all of the items which you ordered, and which are the subject of Charge 1, would eventually have been rebated under the Telstra technology fund, although the last figures available to the prosecution reflected that about 70 per cent had been rebated. Nevertheless, it must follow that if the employer were being invoiced for the retail cost of those goods, even if those invoices were not paid, but allocated to the rebates due under the loyalty fund, the employer would have suffered some loss – at the very least, loss of opportunity of ordering alternative items to be rebated.    

12I am not able to make a finding as to the actual loss to the employer, and certainly not able to find that the actual loss was $116,256 under Charge 1.  However, I am satisfied that in retaining for yourself the proceeds of the items you sold, that you estimated to be approximately $65,000, you obtained a substantial amount at the expense of your employer.  While the value obtained cannot be exactly be calculated, it is clear that you stole the items by ordering them beyond your authority and selling them for your own benefit.

13In relation to the offending under Charge 2, I regard it as much less serious than Charge 1, not only because it was on any reading of much lower value, but also because it lasted only a limited period of time and related to dealing with a single tranche of items, although larger in number. Indeed, it was dealing with items which may have been of no value to your employer had it not been for the talents of the employee to whom you assigned the sales after you failed to achieve them.

14I also note that you say that the previous practice when upgrading equipment of this nature was not for it to be sold second-hand for the benefit of the employer, but rather such used and superseded items were either available to employees to take, or sent for e-recycling causing the expense to the employer. You were not authorised to deal this way with the items as you did in this instance, but I regard this offending as of considerably less seriousness both objectively and subjectively than the conduct under Charge 1.

15I also take into account that you spent more than half of the proceeds that you say you obtained from the resale of the items under Charge 2on your staff.  Of that, you gave a substantial gift as a wedding present to Mr Pham, and from the total, you also paid for a staff lunch and a staff dinner. That does not account for all of the proceeds, even the amount you estimate, but it does indicate that the offending was not primarily motivated by personal greed.

16Indeed, I am not satisfied that I could find that your motivation was primarily greed nor at the other extreme, primarily from need, those being two categorisations often used in relation to assessing the culpability for charges of theft. I am not convinced that any of the stealing was in order to feed a life of indulgence or luxury, but nor can I be satisfied – for this I would need to be satisfied on the balance of probabilities and I find I cannot be – that the motivation was primarily out of need. If you were indeed gambling through lottery tickets to the extent described, there may well have been short-term financial need but, in my view, that is not the type or extent of need that sometimes ameliorates culpability if it motivated such offending.

17There may have been an element of hubris in your thinking, given your long-term involvement and views about how things had been run in the past and perhaps should be under a new CEO, but I am not able to reach a finding on that issue either.

18I proceed on the basis that the motivation was not primarily greed nor primarily serious need.

19I also take into account that the total value of goods stolen by you, even if it is as high as the approximate $134,000 in total for the two charges which the prosecution alleges, was not so great in the context of the size of enterprise conducted by your employer that it put the employer's business or any employee's jobs at risk. That is in contrast to a number of cases which come before courts where thefts by trusted employees in small business operations have jeopardised the entire business's future or necessitated retrenchment of staff.

20There was also no sophisticated cover-up in this case, and no false documentation or accounting entries to try to disguise it.  The transactions were authorised by you and clearly traceable to you.

21Further, once your employer discovered them, which was not until some months after you were retrenched in any event, you did not try to hide what you had done, although you did try to justify it.  You willingly engaged in conversations, which are called “interviews”, about it with representatives of your employer. It was subsequently reported to police and you were cooperative with the police investigation from the execution of a search warrant at your home to the formal record of interview.

22Theft from an employer must be regarded objectively as serious and the seniority of your position enabled you to do what you did without being questioned at the time by accounting staff or by the employee, Mr Pham, whose skills you enlisted to sell the items under Charge 2. The conduct under Charge 1 continued over an extended period, approximately a year, and although by no means as high in value even on the prosecution figures as in many cases that come before this court, the total of goods stolen under Charge 1 was of substantial value. However, taking into account that there was no appreciable impact of loss on the employer's business, your rationales for your actions, and lack of sophisticated cover-up, I assess your culpability as in the relatively low range although not the least blameworthy for offences of this nature.

23You made admissions at an early stage to your employer having already left that employment – you had been made redundant – and you made admissions to police when interviewed.  You pleaded guilty at the first committal mention, being the first reasonable opportunity for you to do so.  Indeed, the charges seem to initially have been framed differently but you indicated a willingness to plead guilty accordingly.

24That cooperation and early plea of guilty entitles you to significant leniency in your sentence, both for the practical or utilitarian value of saving extended investigations and disputed court hearings, and the time and inconvenience to witnesses, and also showing that you have taken responsibility for your conduct. It also reflects remorse about which there is also some other evidence here.

25I shall tell you after I have imposed sentence what it would have been had you not pleaded guilty but been found guilty of the same offences after a disputed trial.

26I turn now to your personal circumstances.

27You are now aged 49 and live with your partner of some 20 years and your two teenage daughters.  You are also effectively the father of your partner's two sons who are now aged in their 20s, and whom you brought up as your own from a very young age.

28As outlined by your counsel, your personal history demonstrates your strength and success in establishing both work and family life against a background that was fragmented and exposed you to considerable disruption and trauma throughout your childhood.

29You were born in Tehran where, during your early childhood, your family's previous security and well-established life was harshly impacted by the Iranian revolution.  People of your family's Baha'i faith were under threat to convert to Islam and I am told that two of your mother's brothers were executed under those laws.

30Your and your sister's initial schooling at local schools was unable to continue and you were sent to India by your family where you spent nine months at an English school.  You began your formal learning of English, both written and spoken, there.

31Following that, you were sent to Montreal in Canada where your father had a large family and you continued your schooling there for a couple more years, until in January 1987, you were able to re-join your parents and sister who had arrived in Melbourne from Iran.

32You were about 16 years of age when you arrived in Australia.  You attended high school here where you completed Years 11 and 12.  You then undertook four years of a university degree in mechanical engineering.  You also worked during that period. On graduation, you were unable to find suitable employment utilising that degree, and although working at other occupations along the way, you then embarked on a further four years of study to complete a number of IT qualifications at Box Hill Institute of Technology.  You qualified as a Microsoft certified systems engineer and then as a Microsoft certified professional.

33I am told that you entered the IT industry in 1998, some 21 years ago, commencing at Finemore's Transport as an IT consultant.  About 3 ½ years later you commenced employment with the Toll Group.  Your division of that Toll business was taken over subsequently by Prixcar Services and you continued there rising to national IT manager and customer services manager.

34You had met your partner in 1998 in circumstances which seem to me to show your personal strength of character, apparently intervening to protect her when you were working as a waiter in a restaurant where you saw her being abused.  The two of you subsequently formed a relationship which has lasted more than 20 years. I am told that she had two very young sons at that time, and you have raised them as if they were your own and are still on good terms with them.  You have been honest with them and they are aware of your present predicament before this court, as are your two daughters now aged 16 and 19, who are both still students.

35I am satisfied that your commitment to and support for family extends beyond your immediate household, to your parents and sister and her family.  I am told that, sadly, your sister passed away some years ago and that you maintain contact with her husband and children.

36I am also told that you are a great support to your parents who are still living where they raised you in Box Hill, but now in advancing age and with some health problems, they rely on your support.  Your partner has written that unfailingly every Sunday you visit them and help with household chores, paying of bills, grocery shopping and, when they wish, you take them to visit your sister's grave.

37You come before the court with no prior criminal history.  At your age, that would be to your credit in any event, but I regard as particularly impressive that with your greatly disrupted childhood and education, you were of strong enough character and determination to keep out of the types of trouble that might have attracted or distracted you, and to pursue a stable life of work and family without prior lapses into criminal activity.

38Your partner describes you as having always been a very loving, loyal, supportive and honest man in your 21 years together. I note that she too has a long history of stable employment while raising four children.  Apparently, you were hiding from her your gambling with lottery tickets and heavier drinking at the time of this offending.

39Her reference supports that you do feel genuine remorse for your offending as well as regret at the distress inflicted on family.

40I have also read a reference from the managing director of your current employer.  This was employment you commenced in March 2018 after your retrenchment from Prixcar in November 2017, and it seems before your offending was discovered, although it may be at about the time your former employer discovered it.

41Your current employment is with a long established family owned and operated motor vehicle transportation company, where you were employed in the role of national IT manager.  I am told that recently, and since the reference was written for a previous court date, you have in fact been promoted to national commercial manager which includes responsibilities for finance and risk and compliance.

42The managing director of your employer is aware of the conduct and the charges against you in relation to your previous employment, and has nevertheless written a strongly supportive reference describing you as having proven yourself to be a reliable, trustworthy and hardworking employee, and bringing a large amount of knowledge to the business and also providing a great deal of mentoring of other staff. He describes you as highly regarded for your integrity and honesty. For an employer who knows that you are facing charges based on dishonesty towards your last employer, that is indeed a very strong reference.  I take it as support for the submission that apart from the offending that brings you before me, you have otherwise shown yourself to be hardworking and trustworthy before and since this offending.

43I am told that you are happy in your current employment and apparently feel suitably paid and appreciated.  I am also told, through your counsel, that two aspects of problematic behaviour at the time of your offending have ceased.  I am told you have greatly reduced the heavy drinking in which you were engaging, and that you totally stopped buying lottery tickets more than two years ago. That you did this of your own volition is to your credit, and I accept that it indicates both strength of will and recognition by you of the need to stop engaging in those behaviours which were apparently so problematic for you.

44With no prior criminal history, no alleged subsequent offending over the two years since the last of these offences, having disclosed them and your shame to family, to your current employer and apparently very recently to your parents whose devastated reaction you most feared, I am satisfied that you are unlikely to engage in this or any other type of offending in the future.

45The nature of the offences of stealing from your employer make the most important sentencing purposes just punishment and general deterrence.  General deterrence means sending a message through the sentence to others who may be tempted to engage in similar conduct that such offences will attract stern punishment.

46As I do not consider that you are likely to offend again, I do not consider that much weight need be given to deterring you from other offending – that is called the principle of specific deterrence, but the sentence I have decided to impose will act as a deterrent in any event for the period it hangs over you.

47Finally, I have given some consideration to what is called current sentencing practice; that is looking at some other comparable cases, although no two cases are ever identical.  I have looked through the extract on the Judicial College website of sentences for theft in this range and note two have particularly relevant similarity – that of Levy[1] and Bezuidenhout.[2] 

[1]DPP v Levy [2017] VCC 837

[2]DPP v Bezuidenhout [2016] VCC 1070

48As the prosecution conceded here, there are a range of sentences imposed in comparable cases in which it was decided that sentencing purposes could be achieved by non-custodial sentences.  This, in my view, is confirmation that the scope for the imposition of a Community Correction Order (CCO), as outlined in Boulton's[3] case, can be considered appropriate in cases of similar circumstances to yours.

[3]Boulton v R [2014] VSCA 342

49That requires the court nevertheless to be satisfied that a CCO is appropriate, and sufficient penalty. The key principle in sentencing is that no more severe sentence should be imposed than the least that would adequately meet all sentencing principles and requirements.

50Your counsel urged me to impose a Community Correction Order and I indicated at the end of the hearing yesterday that I considered that in the circumstances and context of this offending, and as you have no prior criminal history, have a stable family supportive of you as well as full-time ongoing employment, sentencing purposes and principles could be achieved by the imposition of a community correction order without imposing a custodial sentence.

51Would you stand up now please.

52Patrick Kashani, on Charge 1, you are convicted and placed on a Community Correction Order to last for two years with the sole condition that you perform 150 hours of unpaid community work.

53In addition to that condition, all usual terms of a CCO apply, and as I did not have you assessed for such a condition as it is not necessary under the Act, those terms may not have been explained to you and I will briefly summarise them now.

54First, you must report within two working days of today at the nearest community correction office to where you live.  Now, I understand that to be Sunshine.  The address will be on the order and you must report there by 4 pm next Tuesday; that is Tuesday, 15 October.  They might not do the full induction at that stage but you must report and they will make an appointment for your induction.

55For the duration of the CCO, you must report to your Community Correction Office any change of address in where you are living or where you are working and you must report that within two clear working days of that change occurring. Again, I expect these conditions will be explained at an induction but because you have not been assessed, I am summarising them here.

56Throughout the CCO, you must obey all lawful directions and instructions of Community Corrections officers and submit to visits if they so direct.

57During that time, you must not leave the State of Victoria without prior permission of Community Corrections officers. Most importantly, you must not commit any further offence which could be punished by imprisonment. Now, just because an offence might be of a nature that no sentence of imprisonment is in fact imposed, it is whether it carries a potential punishment of imprisonment.  That includes all offences of dishonesty, from theft to obtaining financial advantage by deception.  It also includes a host of other offending but there is nothing to indicate to me that you are likely to engage in any other such offending.

58I must warn you that if you breach this CCO either by not complying with the condition that is imposed or any of the terms or by further offending, then you may be brought back to court for a contravention proceeding. If that occurs, the court will take into account how much of the Order you have successfully completed, and the nature and circumstances of the alleged breach, but it is open to the court if a contravention is found to have occurred to either confirm the order or vary its terms including by extending its duration or the conditions, or to cancel the CCO and resentence you for the offence for which it was imposed, in this case, Charge 1, taking into account how much of the order you have by then completed.

59I must also warn you that a contravention of a CCO is itself a separate offence which carries a maximum penalty of up to three months' imprisonment.

60Now, do you understand these terms and conditions?

61OFFENDER:  Yes, Your Honour.

62HER HONOUR:  Do you agree to comply with the order I have imposed?

63OFFENDER:  Yes, Your Honour.

64HER HONOUR:  All right.  I also inform you that as the only condition which I have imposed is unpaid community work, which I am going to make able to be completed over the whole of the two-year CCO. However, if you have completed all of the work sooner than the two years, then the order will be completed and will not last the full two years.

65Now, on Charge 2, I consider, as I have said, that the moral culpability is much lower than on Charge 1, and I also have more doubt as to the level of actual loss to your employer as a result of it. In those circumstances, and with all the other considerations I have already mentioned including your lack of prior criminal history and stable life otherwise both in family and work, I have decided that the appropriate sentence on Charge 2 is to adjourn the proceeding for 12 months without conviction, on your undertaking to be of good behaviour. That is what is known as a good behaviour bond.  It does last the whole 12 months.  You will only need to come back to court about it if you receive notice to do so, and that is unlikely to occur unless you breach that undertaking to be of good behaviour by committing a further offence during the next 12 months.

66As I have said, I am not imposing a conviction on this charge but you will be required to sign an undertaking to be of good behaviour.  Do you agree to do that?

67OFFENDER:  Yes, Your Honour.

68HER HONOUR:  All right.  Now, there were no ancillary orders sought as a forensic sample has already been taken from you and under the legislation, your DNA will be placed on the national database.

69Any compensation or restitution is being left for civil processes so there is no ancillary order there, and I have not taken any compensation into account in my sentence.

70I state for the purposes of s.6AAA of the Sentencing Act that if you had not pleaded guilty but had been found guilty of the same offending after a trial, I would have imposed a total effective sentence of six months' imprisonment followed by a CCO of 12 months with 75 hours of unpaid community work.

71You can take a seat for the moment, Mr Kashani, while the paperwork is completed for those matters and there will be documents you are required to sign.

72Yes, the CCO I will have handed down so both counsel can just check that it reflects what I have announced.

73MR HANNAN:  Thank you, Your Honour.

74HER HONOUR:  All right.  And this is the adjourned undertaking; the bond.

75MR TIWANA:  Thank you.

76MR HANNAN:  Yes.  Thank you, Your Honour.

77HER HONOUR:  All right.  Well, if they are in order, I will have my associate take them to - - -

78MR TIWANA:  Yes.

79HER HONOUR:  They are draft copies.  New copies have to be printed out apparently.  The computer rules again.

80Mr TIWANA, is Sunshine Corrections the closest?

81MR TIWANA:  Yes, Your Honour.

82HER HONOUR:  It would be.

83MR TIWANA:  That would be the nearest.  Yes.

84HER HONOUR:  Mr Kashani, your counsel has checked them, but you should also read these and you are asked to sign where indicated and then I will sign each of them.  One is the CCO, the Community Correction Order, and the other is the undertaking to be of good behaviour.

85All right.  I have signed the community correction order and the adjourned undertaking and those will be copied. Mr Kashani, you will have a copy to take away with you and there is a copy for each counsel obviously and you can now be released from the dock.

86OFFENDER:  Yes.  Thank you, Your Honour.

87HER HONOUR:  Just come forward and take a seat behind your counsel while the documents are finalised.

- - -