Director of Public Prosecutions v Kempster
[2018] VCC 508
•18 April 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 17-02386
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MANJULA KEMPSTER |
---
| JUDGE: | HIS HONOUR JUDGE GRANT |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 13 April 2018 |
| DATE OF SENTENCE: | 18 April 2018 |
| CASE MAY BE CITED AS: | DPP v Kempster |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 508 |
REASONS FOR SENTENCE
---
APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr Ballek | OPP |
| For the Accused | Ms P. Smith | James Dowsley and Associates |
HIS HONOUR:
1 Ms Kempster, you have pleaded guilty to two charges of obtaining property by deception and one charge of attempting to obtain property by deception. The maximum penalties for these offences are as follows:
· Obtain property by deception – ten years' imprisonment;
· Attempt to obtain property by deception – five years' imprisonment.
2 I have heard a summary of the offending. It is not my intention to repeat the whole summary. It has been tendered as Exhibit A in the plea proceedings.
3 Briefly, Mr Raymond Woff was an elderly gentleman who lived at home until he passed away on 12 May 2016. Prior to his passing, he had required 24-hour care. You were one of the carers employed to assist him.
4
Your employment as a carer commenced in 2012. At that time, you were
a friend of Mr Woff’s daughter, Catherine, and through this friendship, you were offered a position as her father’s carer. She trusted you. Her sisters trusted you. You started working three nights a week and over time you gradually assumed a more significant role in caring for Mr Woff. You became close to him and he trusted you. When his bookkeeper left his employ, he offered you the role. This meant that you had access to his chequebooks.
5 Between 11 March 2014 and 16 December 2014, you abused your position by writing 18 cheques to be paid into your account. You forged the victim’s signature to enable the money to be paid to you. Given the age of the victim and the shakiness of his signature, this was easily done. By these means, you obtained $56,670.63.
6 Between 11 January 2015 and 17 November 2015, you wrote out a further 20 cheques to be paid into your account. Again, you forged the victim’s signature. You obtained $113,897.63 from these deceptions.
7 On 24 November 2015, you attempted to obtain $13,000 by forging the victim's signature on a cheque.
8 In total, you obtained $170,568.13 from 38 fraudulent cheques and attempted to obtain a further $13,000. None of the money has been repaid.
9 You were interviewed by the police on 8 December 2015 and claimed that the money was a gift from Mr Woff. You were interviewed again on 22 February 2016 and made a predominantly “no comment” interview. During 2016, there were a number of court hearings as the police investigation continued and the full extent of your offending uncovered.
10
This is serious offending. You were a carer for the victim. He was 83 years old when you commenced offending against him. He was vulnerable and he trusted you. His family trusted you. Your behaviour was a shocking abuse of trust. Your offending was deliberate, calculated and driven by greed. Over
a period of 19 months, you repeatedly wrote out cheques to yourself; you repeatedly forged the victim’s signature; you made sure the payee details on the chequebook stubs would not alert anyone to your dishonesty; and you used the money you deceitfully obtained for your own benefit. You wanted to maintain a particular lifestyle and you used the victim’s money for that purpose. You obtained a large amount of money, none of which has been repaid. In addition, the offending commenced just before you entered an agreement with Mr Woff, whereby he loaned you $5,000. This loan was to be repaid by monthly instalments of $500. You made the first of these repayments on 27 March 2014.
11
I have read the victim impact statements provided by Mr Woff’s daughters. They speak of the distress your offending caused their father. In the words of one family member, “My father died five months after the onset of this situation and what should have been a peaceful and carefree time in his life before his death, became a time of worry, stressfulness, grieving and incredible sadness." Another family member notes how her father was particularly upset at the thought that the legacy that he wanted to leave to his children had been significantly diminished. All the family members are understandably angry and distressed at the way you treated their father. They feel responsible for what occurred, because they employed you to look after their father. I feel obliged to say that there is no reason why they should regard themselves as responsible in any way for what you did. You represented yourself as
a trustworthy, reliable and decent woman. No one had reason to believe you were anything other than what you represented yourself to be. No one had any reason to believe you were a person who was capable of such a significant breach of trust.
12
General deterrence is a paramount sentencing consideration in this case.
I have a responsibility to deter anyone else who may be tempted to behave in the way that you did, from doing so. Given the gravity of the breach of trust involved in this case, just punishment and denunciation are also highly relevant sentencing considerations.
13 I now move to matters relevant to your background. You are 57 years old. You were born in Sri Lanka. You are the second of three children. Your father was a doctor and you had a privileged upbringing. In 1972, when you were 11 years old, the family moved to Australia and settled in Caulfield. You were well educated and you have worked hard for most of your life. You were married in 1992. Over time, the marriage became an unhappy one. Your husband was not, it seems, a successful businessman and in 2002, you repaid debts that he had incurred of $850,000. You did this after selling a property that had been gifted to you by your parents. This considerably diminished your financial position. You and your husband divorced in 2003 and you bore the responsibility of raising your children, who are now aged 24 and 20. Your son, Kalin, has written a moving reference in your support.
14 At the time of your offending, you did not have any prior convictions. You did attend the Moorabbin Magistrates’ court in 2009 for a low-level dishonesty offence. You received diversion. I do not attach any great significance to this matter. However, I do note that the lack of a criminal conviction is not unusual in your type of offending. Indeed, people who commit this type of offence obtain positions of trust, because they are apparently honest and trustworthy.
15 It is a relevant matter on sentence that you have a subsequent conviction for dishonesty. Between 8 and 12 November 2016, you stole and used a credit card belonging to a 15-year-old student who was staying with you. You appeared at the Melbourne Magistrates’ Court on 30 October 2017, where you were convicted and fined an aggregate amount of $700. The fact that this criminal behaviour occurred after you had been charged with the current offences, explains why I have some reservations about your prospects of rehabilitation.
16 I now move to those matters in mitigation.
17 You have entered a plea of guilty to the charges. Whilst not a plea of guilty at the earliest possible time, it is still, nonetheless, an early plea of guilty. The plea is an acceptance of responsibility. It has also saved the victim’s family members from the trauma of giving evidence in a trial and saved the community the cost and expense associated with a criminal trial. You will be given credit for all these matters.
18 Your counsel submitted that you are remorseful. I am not convinced that there is deep contrition. The report from Mr David Lococo, psychologist, states that you initially presented to him as highly distressed in relation to the prospects of imprisonment and being removed from your family. I searched through his report, looking for an expression of remorse for what you had done to the victim and his family. I could not find one. Some of those who have written character references on your behalf speak of your remorse. However, the remorse is frequently framed in terms of being sorry for your actions and being very worried or concerned about the consequences of your actions on your boys and family, not on the impact of the offending upon the victim and his family.
19 There is very little else that can be said in mitigation of penalty. Your counsel made reference to the operation of Principles 5 and 6 of Verdins. She referred to the diagnosis made by Mr Lococo, that when he first saw you, you suffered from a major depressive disorder, single episode, moderate with anxious distress. This condition did not exist at the time of the offending. He noted that the treatment he had provided meant that by 9 April 2018, which is the date of his report, you met the criteria for major depressive disorder, single episode, in partial remission. I take this to mean that you still suffer your depressive disorder, but at a lower level than when he first saw you. He also expressed the opinion that a sentence of imprisonment is likely to result in a deterioration of your mental health and a worsening of your depressive disorder. I accept that opinion. In these circumstances, I will allow some modest moderation of the sentence, on the basis that the sentence will weigh more heavily on you than it would upon a person without your depressive disorder and also because imprisonment is likely to make your disorder worse.
20 I recognise your previous good character, although for the reasons I have already given, that is not a matter of great weight in a case of this type.
21 Your counsel submitted that the appropriate order would be a community corrections order (CCO) or a sentence of imprisonment, coupled with a community corrections order. She relied on your plea of guilty, your previous good character and the application of Principles 5 and 6 of the Verdins case. The prosecutor submitted that whilst an immediate term of imprisonment was required, a gaol term and a lengthy community corrections order would be within the range of appropriate sentences. I did not indicate agreement with the submissions. I adjourned the hearing to consider the matter. In the meantime and without committing to such an approach, I did have you assessed as to your suitability for a community corrections order. The assessment was, not surprisingly, favourable. However, for the reasons I am about to deliver, I have concluded that a gaol term, followed by a CCO or a community corrections order, would not be appropriate in this case.
22
Ms Kempster, as I have already said, this is serious offending. The breach of trust was grave. The victim was elderly and vulnerable. He trusted you. You were friends with one of the victim’s daughters and the family trusted you. The offending occurred over a 19-month period and involved a large amount of money. It was motivated by greed and the impact of your offending on the victim and his family was significant. It is my view that notwithstanding the matters in mitigation, a sentence of 12 months imprisonment, followed by
a community corrections order, does not adequately mark the seriousness of this offending and the need to deter, punish and denounce your behaviour.
23 In fixing sentence, I do take account of the fact that this will be your first sentence of imprisonment.
24 Ms Kempster, instead of imposing individual sentences on each charge and determining appropriate levels of concurrency and cumulation, I intend to impose an aggregate sentence on all the charges. I do so because the offences are part of a series of offences of the same or similar character. Your offending in relation to Charges 1 and 2 involves the same method of deception, but between different dates. The third charge would have been included in Charge 2, had the deception been successful. In these circumstances, the separate consideration of individual sentences and questions of concurrency and cumulation, would be artificial. In imposing an aggregate sentence, I am still, of course, required to ensure that the aggregate sentence is no higher than a sentence that would have been imposed in the traditional manner.
25 Will you please stand. You are convicted and sentenced to an aggregate sentence of imprisonment of two years.
26 I fix a minimum term of one year before you will be eligible for release on parole.
27 I declare that you have served five days pre-sentence detention.
28 Had you pleaded not guilty and been found guilty after a trial, I would have sentenced you to three years' imprisonment, with a minimum term of two years.
29 Pursuant to s.464ZF of the Crimes Act, I order that you undergo a forensic procedure for the taking of a scraping from your mouth. If you fail to co-operate in the taking of that sample, the authorities may use reasonable force to obtain it and the sample may be a blood sample. I make the order because of the seriousness of the offending, the order is consented to and the making of the order is in the public interest.
30 You can be seated there.
31 Are there any other matters, Mr Ballek or Ms Smith?
32 MR BALLEK: No, Your Honour.
33 MS SMITH: No, Your Honour.
34 HIS HONOUR: Ms Kempster can be removed, thank you.
- - -
0
0
0