Director of Public Prosecutions v Kilgour
[2021] VCC 890
•1 July 2021
m
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 20-01552
Indictment No. L11761914
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MELANIE KILGOUR |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 April 2021, 24 June 2021 | |
DATE OF SENTENCE: | 1 July 2021 | |
CASE MAY BE CITED AS: | DPP v KILGOUR | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 890 | |
REASONS FOR SENTENCE
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Catchwords: obtain financial advantage from employer. $148,000. Use false document. A number of transactions rolled up into a single charge of Obtaining Financial Advantage by Deception. 44 years of age as at sentence. No prior criminal history. Early plea. Remorse. Breach of trust. Verdins.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms E. Maguire (for Plea) | Office of Public Prosecutions |
| For the Accused | Ms N Smith | Victoria Legal Aid |
HIS HONOUR:
1 Melanie Kilgour, you have pleaded guilty to one charge of obtain financial advantage by deception and one charge of using a false document. You have no criminal history before the courts.
2 You were born on 28 September 1976, were 42 years old at the time of the offending in 2019 and are 44 years of age now.
3 The maximum penalty in each case is 10 years' imprisonment. The offending does not satisfy the criteria to be treated as a Continuing Criminal Enterprise offence.
Facts
4 The prosecutor, Ms Maguire, opened the matter to me on 28 April of this year in accordance with a written prosecution opening dated 30 March 2021. Your counsel informed the court that it was an agreed statement of facts. I will sentence in accordance with the agreed summary marked as Exhibit A and see no need to fully detail the circumstances of your offending.
5 I will say something only very briefly as to the facts so that the offending and the sentence imposed can be understood by anyone who happens to read these reasons.
6 The agreed summary discloses that the victim was a not for profit organisation known as the Alexandra Community Hub. It was an organisation which provided numerous community services. You were employed as the co-ordinator and financial officer. That took effect from May 2018. You were in a position of trust. Though it was a not for profit organisation, you were paid around $70,000.
7 You had delegation to expend up to $1000 without Board approval. The Hub held accounts at the local NAB branch, including a term deposit and a cheque account. The accounts required co-signatories. You were one signatory and one of the directors was the other.
8
In early August 2019 you contacted the NAB and made enquiries about moving the term deposit funds of some $72,000 into the hub cheque account. You said it was necessary to pay some bills. You were provided with a term deposit prepayment request that had to be signed by the two signatories. You presented that signed form to the bank on the 12th August and that form had your signature and one that purported to be the signature of Mr Cannon. The bank officer felt that the signature of Mr Cannon was not his and she spoke to a banking advisor, Ms Baird. A check of banking records disclosed that the signature did not match. In fact the banking advisor contacted Mr Cannon who said that he was interstate, that he had been for some days and had not signed any banking documents. The bank contacted you and told you they would need the two signatories to come in and that the signature did not match
Mr Cannon’s. You said that Mr Cannon was not there, had left only that morning and that you would get someone else to sign the form. It was incredible really that you continued on in the face of these statements from the bank, but you did. You told the bank that in fact Mr Cannon had signed a cheque and you could bring that into the bank so that the signature could be checked. You were told that that would not suffice and that Mr Cannon would need to be present. In fact, you sent along an employee with that cheque, but she was told that it would not suffice. Again the signature did not match.
9 The bank then conducted a check of the Alexandra Hub cheque and credit card accounts and identified a number of suspect transactions. Large amounts of money had been transferred out of the cheque account with identical sums credited to your own account. You had set up the online banking. It should have required two signatories but did not, though I certainly cannot conclude to the required degree that this was done with fraud in mind.
10 To cut a long story short, the bank contacted the director of the hub and requested he and the treasurer attend a meeting to discuss a serious issue. That meeting took place. They confirmed that there was no authority for you to have done any of these things.
11 You obtained a total of $148,908 between 8 July 2019 and 15 August 2019.
12 The matter was reported to the police on 19 August 2019. On that same day you attended a meeting that had been called at the Hub and were confronted with the allegations. You admitted taking funds without authority and gave a number of explanations (see paragraph 24 of the opening). You mentioned the cost of the house renovations and lending money to a friend which had not been paid back. You mentioned nothing at all about any scam, romantic or otherwise. You did say that you were sorry and would pay the money back. In fact steps were set in place to do that and that took place prior to your being interviewed or charged.
13 The explanation you gave to the Board is to a degree inconsistent with the explanation now pressed on the plea. I will come back to that matter in due course.
14 You attended at the Alexandra Police station by prior arrangement on 27 March 2020 and made a no comment interview, as was your right. It follows though there is no explanation in your police interview for your conduct given. You were charged on 15 July 2020 and pleaded guilty at an early stage. So much then for my brief summary of the agreed summary. Of course I sentence in accordance with the more complete factual setting contained within Exhibit A.
Impact
15 There is no victim impact statement in this matter but you know that you damaged the Alexandra Hub by your actions. You said as much at the time of the meeting in August 2019. Obviously, they were out of pocket to the tune of close to $150,000 which is a large sum for a not for profit group. At least the $116,000 held in trust will return to them so the loss has been made good in large part. Mention was made by your counsel on the last listing date of an additional $700 that could be paid back. I think there was a bank cheque that was actually physically present in court, and that will be paid once the matter is finalised. But this sort of crime goes beyond the pure monetary loss. There was no doubt a sense of disbelief that a trusted person co-ordinating this community organisation would dip their fingers into the funds in the way that you did. It causes a loss of faith, this sort of conduct.
16 Anyway, I take into account the impact here.
Mitigation
17 Ms Smith conducted the excellent plea on your behalf. She had prepared some very detailed written submissions at the time of the first hearing in April of this year. They were supplemented by a further set of submissions and a range of other materials provided on the last listing date. Many of those dealt with the financial records and your instructions as to falling victim to an alleged scam.
18 Finally as a result of some questions I had raised arising from the submissions made as to the financial position, Ms Smith placed before me a third set of submissions and associated documents. That last point arose as the sums did not seem to add up given that I had been told that the amount held in trust were the proceeds of the sale of the house. I had been told that there was very little equity, a sizeable mortgage and that the house was sold for less than the purchase price.
19 I couldn’t understand how the $116,000 mentioned could therefore be the proceeds of the sale in that sort of setting. That was a misunderstanding and plainly the documents placed before me today deal with that issue. The actual documents are marked as Exhibit 22 and there was some supplementary submissions that have been marked as part of Exhibit 1. The house sold for a higher price, not the lower price that I was told and the $116,000 clearly came from that source. There is just no issue about that. That issue has entirely been put to bed.
20 In the course of the plea Ms Smith took me to your family and personal details, covering your educational, employment and relationship history. She dealt with aspects of your physical and mental health. You had no criminal history at all and nothing since. She relied upon a report from Mr Cummins as well as reports from a treating psychologist, Peter Powles, and from Ms Trudgen. There were a large number of personal and work references including letters from your father and mother, and your brother and sisters.
21 There was also an employment contract, in the early stages of the plea, you were still employed. There were also some materials touching upon the health predicament of your parents. There was a letter from an IT expert who unsuccessfully tried to extract messages from your phone and a letter of apology from you. As I mentioned a moment ago, the written materials expanded significantly on the last date to include a variety of financial records and summaries of what they disclosed, as well as a number of additional character references.
22 There was also a report from Shaeley McCann, a drug and alcohol counsellor from Care Connect, as well as a file note from the informant disclosing that you mentioned the existence of a scam to the police in July 2020. There were various annexures relating to people said to be involved in this scam, that is Ty Donaldson and Steven Beazley and screen shots of a couple of WhatsApp communications claimed to be between you and one or other of those men.
23 The plea really only got fully under way on the June date as your counsel had applied to adjourn the April listing to try to obtain evidence of many of the matters you were giving instructions in relation to. I made it plain on that first day and Ms Smith accepted that in so far as she was seeking to place before me a mitigatory matter, namely that you had fallen victim to an online romantic scam and had not gained any material benefit yourself in the offending, that there was really no evidentiary foundation for those submissions. I made it plain in April that I did not believe I could act on your instructions. They were untested and there was very little if any objective support.
24 Ms Smith sought to rectify that situation by having a number of subpoenas issued and assembling the voluminous exhibits referred to. It is greatly to her credit, and the credit of your legal team, that they have spent what must have been an enormous amount of time working their way through those raw materials to prepare the charts marked as Exhibits 9-15 on the plea. Those matters were placed before the court on 24 June. Likewise she acted very efficiently in dealing with the more recent issues as to the source of the $116,000. Your legal team really could not have done more on your behalf in this case.
25 Towards the end of the plea on 24 June I asked the prosecution whether they accepted the suggested motivation here. They were not able to and mentioned the absence of any account from you. There was no interview here and you had not given evidence. I flagged that issue with Ms Smith on the last listing date. The matter was stood down to give your counsel the opportunity to discuss with you whether you would give evidence. You chose not to as was your right. She chose not to call you, asking instead that I draw inferences from a range of materials, including her summaries of the financial records and some of the other materials disclosing later threatening conduct.
26 If I may say so, it is a bit unsatisfactory. Virtually every account you have given is different from another. But even if I put that aside and accept for the moment that you fell hook line and sinker for a scammer, what role does it really play in my task? There is no magic in the online nature of the alleged romance. What reduced culpability would there be if other than in an online setting, the explanation for the fraud lay in you being requested by a boyfriend or partner to provide some funds and choosing to defraud your employer to do so? I will come back to discuss these matters later in these reasons.
27 There has been great focus on the motivation here. It seems to me that it tends to downplay the seriousness of your criminal acts. It is suggested that this started out as an online romance but the argument is that at one stage it changed with threats being made to disclose intimate images. Well at what stage was there that change? When did it move from you being a willing albeit duped lender of your employer’s money to a set upon victim of extortion?
28 There is just no material before me as to that. I have already mentioned what you told the Board members when confronted. House renovations and a loan for $50,000 to a friend that had not been paid back. That was the explanation. No mention of any threat or intimidation or scam. You mentioned to the informant in July 2020 having given $50,000 to an unknown male over the last 12 months. You showed him a copy of a licence said to be a licence connected up to Donaldson
29 You mentioned also that you attended to meet that person in July 2020 but he did not show up. Why on earth would you attend to meet a person who you now assert was threatening you and extorting money from you, a person who on your version you knew by then to be a serious criminal? It makes no sense at all.
30 In your written apology you told the court that as to Charge 2, you had already told the scammers that there was absolutely no more money and that you had stopped paying them. I raised my concerns as to the accuracy of that statement. Your counsel ultimately corrected it saying that submission was not correct. The records disclosed further payments.
31 You told your parents that not only did you lose $50,000 of your own money but the intimidation and threats caused you to start stealing from the Hub. Well as I understand the version now pressed upon me, you lost over $200,000 of your own money. You told Mr Cummins that this offending was in large part about obtaining funds for your kitchen renovation. You told him also of the scam but in such a way as to indicate that you were told they could hack your account and hence you made a number of these transfers. The first and obvious step would be to close your account I would have thought.
32 Anyway I will come back to some of these matters. Ultimately the decision was taken not to call you on the plea. It follows that I do have some materials that support the suggestion that you were transferring money from A to B. The records show that. There is some material showing a much later WhatsApp communication. But nothing from you on oath or affirmation giving any of the actual details. Nothing in any way tested. No interview account. Nothing spelling out when you went from being a willing albeit it duped person to acting under the threat of the disclosed images.
33 There is a massive amount of material placed before me on the plea. It is not my intention to go through all of these materials chapter and verse in these my reasons which will be long enough as is. I have had regard to it all and have in fact read it all since the plea including yesterday and this morning. I have mentioned the large number of character references. As one, the authors, whether family members, friends or work colleagues speak of the out of character nature of the conduct. Those who know you best are stunned by the criminality. It is so deeply out of character.
34 Some of those references speak also of the undoubted trough you were in at or around the time of the offending. So there is this evidence from others who knew you at the time speaking of the various difficulties confronting you. Marriage breakdown, adjusting to life as a single parent, depression, anxiety, health issues with each parent, low self-esteem, loneliness.
35 Your counsel made submissions about your reasons for offending. I have already spent some time on that and will come back to it later. She argued that you had nothing to show for the offending. No actual personal benefit or enrichment at all in this case. She conceded thought that the breach of trust here was significant. She conceded the relative seriousness of the offending. She said it was a large enough amount and was systematic but not particularly sophisticated and that it was not of very long duration but of course, not isolated.
36 She submitted that you had good prospects of rehabilitation and a low risk of reoffending.
37 In mitigation, she relied upon the following matters:
· Your guilty plea;
· The stage of that plea;
· The presence of remorse;
· Your co-operation with the Alexandra Hub including the arrangement prior to police involvement of the repayment of a large proportion of the funds lost;
· She relied to some extent upon an increased custodial burden owing to the response to the COVID-19 Virus if you were sent to prison;
· Also an increased burden as a first time offender with your family responsibilities including two young children and seriously unwell parents;
· She relied upon the six limbs of Verdins[1] ;
She argued that imprisonment was not warranted here. She argued instead for a stand-alone Community Corrections Order. She submitted that such an outcome could achieve all the purposes of sentencing. She took me to a number of other instances of non-custodial sentences imposed by other judges of this Court.
[1] [2007] VSCA 102
Prosecution
38 The Prosecutor, Ms Maguire, had prepared some quite detailed written submissions which were marked as Exhibit B on the plea. Those written submissions covered a range of matters including the nature and gravity of the offending. They argued that this was systematic offending. There were multiple transactions and accompanied by a significant enough breach of trust. They made submissions as to the weight to be given to the relevant sentencing purposes. The prosecutor did not challenge the existence of a major depressive illness. The issue was how that would be taken into account in the exercise of my discretion.
39 She made submissions as to the weight to be attributed to the Verdins' arguments made on your behalf. It was a matter for the Court as to whether there was any realistic connection between that depressive condition and your offending. There were though concessions made as to the presence of remorse and the existence of favourable rehabilitative prospects here. The Director through Ms Maguire challenged the availability of a standalone community corrections order in this case, arguing that such an outcome would not adequately reflect the seriousness of the offending, involving as it did a significant breach of trust.
40 The prosecution argued that a standalone community corrections order would not give adequate weight to general deterrence, denunciation and punishment. The Director conceded that a combination type order would be open, noting that the Court had at its disposal a period of up to 12 months' imprisonment. So, plainly the Director was calling for a prison term to be served.
Background
41 I will turn shortly to the various submissions that have been made. Before I do so, I will say something about your family and personal background. Your background is set out in Mr Cummins’ report. There was also a good deal of detail in the written submissions and some of the references from people who know you best. I accept the family background that has been placed before me. I see no need to repeat it all in these lengthy reasons.
42 You were born on 28 September 1976. You are now 44 years old. You, unlike so many people who inhabit the dock, had an excellent background with loving and supportive parents. That is often the way with white-collar criminals. You grew up in Shepparton. Breach of the law is very much foreign to your family. These are just unchartered waters. You have an older brother and one younger brother and sister. Your parents are retired now, they were respected business owners in Shepparton and are aghast at your offending.
43 You completed Year 12 and obtained a double degree at Deakin in health sciences and secondary education. You have a very strong employment record and I see no need to set out the detail of that as the written submissions does that at paragraph 15. To your credit, you went on to find employment even after this disastrous phase of your life. You have lost your most recent job. Your contract has not been renewed as a teacher.
44 There has been some publicity attaching to these allegations and the court case and it cannot have been easy for you or your family including your young children. Incidentally your employer already knew of the matter as you had informed them. Teaching may well be lost to you for all time which I do take into account. It is a blow for you.
45 You have had one relationship of significance. You met your husband, Phillip, when you were 19. You married in 2003 and were together until late 2017. There were a number of health issues (spoken of in paragraph [8]) and the two of you struggled to have children but ultimately had two, Olivia, who is 12 and James who is 9. The breakdown of the relationship was, it would seem, difficult and there are claims as to abusive and controlling behaviour of your ex-partner. Well I am sure there are two sides to every story and I am getting only yours.
46 When you were together, you and your husband ran a business, Anchorage Houseboats up in Eildon.
47 Since the offending, as I have said you obtained employment. You sold your house to pay back a large sum of the money fraudulently obtained. That is waiting in trust. You were then renting premises but that arrangement came to an end when you lost your job as a teacher. You are back living with your parents. It represents a massive fall from grace for you. You have pretty much ‘blown’ your entire property settlement, as I understand the submissions made to me.
48 Your parents have not been well at all and each have laboured under or are still labouring under serious health issues, as is spoken of in the medical materials. There are letters from their various doctors. Your children are each receiving counselling pursuant to mental health plans. They have been with you for 80% of the time but of course that would change should you be sent to prison. You have engaged in counselling referred to in the various reports. In fact I was told there were many additional sessions since the reports had been written.
49 You have no prior criminal history at all. As I have said, there is nothing at all unusual about white collar criminals with no criminal history. Indeed it is actually quite typical.
50 I have already spoken of the impressive character material placed before me in the form of the various references that I have read. You call in aid now your past good character. The offending is said to be starkly out of character and no doubt that is true but of course Charge 1 involved 34 separate transactions over a five week period and was deeply dishonest conduct targeting your employer. Charge 2 relates to the use of what you knew to be a false document and really you pushed the dishonesty to the limits not abandoning the conduct even when put on notice of concerns held by the bank as to the legitimacy of the cosignatories signature.
Mr Cummins/Mr Powles/Ms Trudgen/McCann
51
I take into account the report of Mr Cummins that has been placed before me. It does not exist in a vacuum. Sometimes these reports do. It should be read in conjunction with the other personal references and the various other reports from those who have treated you. I note also that you had obtained some mental health treatment well prior to this offending. That is referred to in the report.
Mr Cummins concludes that you were at the time of the offending suffering from a major depressive disorder. That has been so intermittently since 2009. It has been of moderate severity.
52 Further it seems likely you were suffering from an adjustment disorder. He speaks of the reactive component of some of these aspects of the condition, that is reacting to the very fact of coming to court and the outcome and all the uncertainty that that throws up.
53 The submission is you were not in a good place at all in the relevant time frame following the acrimonious breakdown of the marriage. You were suffering from anxiety and depression. You had worrying issues in relation to your mother and father and their poor health. You had been adjusting to life as a single parent. You had purchased a house, renovated the kitchen and run into an overspend and then a dispute with the builder.
54 There was evidence of your having a low self-esteem in this period and all of these things playing a role in your choosing to engage in an online communication leading to an online romance. I am prepared to find that you did engage in what might be described as online romance. I am prepared to find that you shared intimate images and that there were later requests =made of you to forward money.
55 There is very big difference between using your employer’s money to fund what you believed to be a critical surgery and sending money to prevent publication of images or to prevent threats of harm to your family. I have your word on that last score but even that is overstating it. I do not have your word at all. I am not satisfied on the balance of probabilities that you were threatened with harm or that threats of harm were made against your family. It seems clear though that you had transferred overseas the lion’s share of your property settlement within only months of receiving it.
56 The records summarised by Ms Smith show that around $212,000 of the $250,000 was transferred. This by someone who had obtained a mortgage in November 2018 and had the obvious need for that money. I have three Transfer Wise summaries that mention one way or the other either cryptically or directly Ty or Donaldson. So there is some support for that.
57 Someone engaging in those sorts of transactions is hardly exercising optimum judgement. You were not. Nor were you when you engaged in this serious offending. Again it does not exist in a vacuum. It is conduct that is deeply out of character. It was committed by a woman who had at that point frittered away already a sizeable sum of money that she needed. These things do not suggest to me you were exercising appropriate or good judgement at all in this timeframe.
58 Mr Cummins says you were not and I am prepared to accept that opinion. You were depressed, lonely and had low self-esteem and your perception, judgement and reasoning abilities were impaired. I find that there is a realistic connection between the conditions spoken of in the report and the offending. However, you clearly knew that you were committing a serious crime. Your mental health issues did not rob you of that level of understanding. Not by a long shot. I do however accept that there is some reduction in your moral culpability. I accept also that limb two of Verdins has application. Your mental health condition is relevant to the type of disposition imposed. If only you had not committed such a serious crime but regrettably you have.
59 I accept that there can be some sensible moderation of specific and general deterrence. General deterrence though is far from eliminated here. It is a sizeable purpose of sentencing as it must be for this sort of white collar crime. Nor do I have any reason to doubt the application of the fifth and sixth limbs. I am satisfied they have application here. Prison would be tough indeed for you given your mental health issues. There would be an increased burden and a serious risk of deterioration. So I find that each limb of Verdins has application here and I act on the submissions made by your counsel in that respect. The report is also useful, this is Mr Cummins' report, as it goes into many matters of background including but not limited to your response to the offence, sense of remorse, your rehabilitative needs and the opinion expressed as to your low risk of reoffence.
Guilty plea
60
I will turn now to some of the other matters raised in mitigation.
The first of those is your guilty plea. You have pleaded guilty at the earliest opportunity. Earlier still you had admitted your misconduct when spoken to by your employers and entered into arrangements to repay such money as you could repay. You sold your house and other items to do so. These are all matters of importance.
61 I take your early guilty plea into account in mitigation of sentence. I must pass a lesser sentence upon you than I would have imposed had you been found guilty by a jury.
62 You have taken early responsibility for your offending. The community has been saved the time, cost and the effort associated with the conduct of a committal hearing in the Magistrates' Court or a trial in this court. Witnesses have been spared the experience of giving evidence in your case. You have facilitated the course of justice. Your guilty plea is important and more so in the setting of the COVID-19 disruption to the operations of this Court. We have a massive backlog of cases and your case is not one of them. Your plea in such a setting is of extra worth for the many reasons spelt out in the recent case of Worboyes[2].
[2]Worboyes v The Queen [2021] VSCA 169
Remorse
63 What then of the aspect of remorse? You admitted your crimes to your employer in August 2019 and said you were sorry. You chose to make a no comment interview in March 2020. That was your right but as a result, I do not have any expressions of remorse dwelling in such an exchange. You have pleaded guilty at the earliest stage. A guilty plea is often indicative of remorse but here the case was an overwhelming one. That does not affect the weight that I give to your guilty plea. That discount is not dependent on whether I find that there is remorse present or not. It is a totally separate issue.
64 But the strength of the case may impact upon the inferences to be drawn from the fact of your guilty plea. I have the opinions voiced by Mr Cummins, Peter Powles and Michelle Trudgen. Many of the authors of references speak of the presence of remorse as well. Also mention of remorse in the Community Corrections Order assessment outcome report.
65 I have your letter of apology, one I was not too impressed by. You seemed to want to distance yourself from dishonesty in relation to Charge 2. You point to all manner of excuses and reasons behind your offending. Your husband, the hard job you were performing, the scammers. You even express frustration at the fact of the minimal efforts taken to chase down scammers for the recovery of the money and the fact that they are getting away with the Hub's money.
66 It was you who delivered up any money, Ms Kilgour, money obtained in direct breach of trust. I have though re-read the apology since the last hearing. There is a fair dose of self-pity here but when I reflect on it, why would there not be? You are not travelling well at all. Your life has pretty much fallen apart. You have frittered away your property settlement. You have sold your house. You are pretty much penniless and on the brink of prison. You have lost your career in teaching and are back living with your parents. Of course you are deeply worried about the outcome of this case. It would be strange for you not to have a large measure of self-pity.
67 There are also the steps you took even before the police were called in to arrange the repayment. Also the steps you have taken to obtain treatment. Having re-read all the materials I believe there is actually remorse here. It is mixed in with a large dose of self-pity. However, if I posed the question, are you proud to have committed these offences? The answer is very obvious; you most certainly are not. I believe having re-read the materials, including your apology, that you are actually ashamed to have offended in the way that you have, so I do find the presence of remorse in this case and I take that into account in your favour.
Rehabilitation
68 I turn then to your prospects of rehabilitation. You have pleaded guilty at the earliest stage. You are remorseful. You have taken these steps to pay back what you can pay back. You have engaged in treatment spoken of in the reports.
69 I have the various references placed before me. I have the reports. You are a 44 year old first offender. The references spell out the sort of person you have been in the past. As I have said, you were labouring under the cloud of mental health issues when you chose to offend.
70 You will, I am sure, to a large extent be deterred by the fact of being sacked, arrested, charged and brought before the court. You have been exposed as a person who has stolen or committed acts of dishonesty against your employer, and have suffered a very large fall from grace. The sentence I will soon impose will further serve to deter you.
71 You have no criminal history at all. None.
72 You are of previous good character and you do call in aid your past good character. You point to all that you have done in the past, all that you have done since this offending came to light. You have made changes to your life, which is to your credit. There is obviously work ahead for you. Further, from what I know of you, you have demonstrated in the past that you are obviously intelligent, prepared to work and motivated to work. They are valuable qualities which obviously should set you in good stead. It is plain to me not just from the references but also from all the people joining this hearing on Webex, you still enjoy real support from your friends and your family. That is as it should be actually.
73 This was, however, serious offending. It was not isolated. Rather it was committed over a period of five or so weeks. There were many separate and calculated dishonest acts targeting your employer. There was a high level of dishonesty and breach of trust here with over 30 individual acts of dishonesty rolled up into this single charge of obtaining a financial advantage by deception. You tried to cover your tracks to some degree. So, though you are a first offender, you have jumped in pretty deep here.
74 It never easy as a Judge to make a forecast as to the rehabilitative prospects of a person sitting in the dock. Your counsel argues that you have good prospects of rehabilitation. Well, I certainly view your prospects favourably.
75 You were not though some silly teenager off on a youthful frolic. You were a mature woman, 42 years of age, seriously offending over a period of over a month and to the tune of over $148,000. One would never have expected you would offend in the calculated way that you did and wind up sitting in the dock of this Court and yet of course you did.
76 The only reason I am even a little bit guarded here as to your future prospects is because of the dimensions, the calculated nature of, and the duration of your offending. Also the fact that you continued on with the offending the subject of Charge 2 even when the conduct came under question at the bank.
77 Having considered all the matters though I believe that your prospects of rehabilitation are, at the very least, good. I believe that you pose a very low risk of reoffending.
COVID-19: Increased burden
78 I turn now then to the impact of the COVID-19 pandemic upon any custodial experience should you be exposed to such an experience.
79 I accept that the COVID-19 virus and the response to it by those running the prisons has increased the burden of imprisonment to a degree. Prison has been a more stressful environment. Social distancing is not easy there. No doubt there is worry about catching the virus in such a setting where unlike someone in the community, there is no level of autonomy at all. You have not been in prison of course so what has occurred in prison over the last 12 or 14 months is not of great importance to my task.
80 As to what lies ahead on the pandemic front, it is impossible for any of us to know. The impacts of the virus upon prisoners has been lessening, with visits and courses getting back underway earlier in the year. We have been experiencing ups and downs as the events of the last few months, and indeed the last few weeks make plain enough. We had the circuit breaker lockdown in February and the temporary suspension of prison visits that came back online.
81 We have had the issues over the last three or four weeks with another lockdown and implications arising once again for prisoners. That has eased again. Whilst we have been travelling very well in the community, it is not that difficult to see how restrictions may spring up again as they have did. In fact as we all know lockdowns in the community have been called around the country at the moment.
82 There will be some ongoing anxiety amongst prisoners as to how they will fare. I cannot know if limitations will be prolonged or if once lifted, whether they may start up again down the track and I am not free to speculate about that. But I do take into account the impact of the virus in the ways urged upon me by your counsel. It undoubtedly increases the burden of imprisonment
Additional increased burden
83 I also accept that there would be an increased custodial burden arising from your family setting. You would be a first time prisoner. That is not easy at the best of times. It is not the best of times. You would be a first time prisoner in custody amidst the COVID-19 pandemic. You have two young children each receiving counselling. They have been living with you for 80% of the time. You would worry about them. You know your parents have had serious health challenges. That would also cause you anxiety. I cannot take into account third party impact unless it is exceptional and it is conceded that it is not so here. So I cannot take into account the impact upon your children or your parents of your being imprisoned.
84 However, your burden of imprisonment is increased for the reasons I have mentioned and I am permitted to take that into account.
The Offending
85 I have to consider the nature and gravity of your offending. As I said earlier in these reasons, it is conceded that this was serious offending. Your counsel conceded as much at paragraph 19, stating that the quantum was significant with a number of aggravating features including the abuse of trust and the systematic nature of the offending repeated as it was over a number of weeks. She argued that there not much by way of sophistication with detection an inevitability and only rudimentary attempts to conceal the transactions.
86 There are a number of aggravating features which are conceded. This was a flagrant breach of trust. You were the coordinator and financial officer of this not for profit organisation. It was providing programs and resources to the community. You were paid a decent salary and you were trusted to do your job. An organisation such as that quite simply relied on your honesty and dedication to your job. You betrayed those who placed their trust in you. It was not a single dishonest transaction. There were multiple dishonest acts spanning a period of five weeks. You had very many opportunities to pause for thought and to consider what you were doing and desist. You only desisted when you were caught and sacked. It was a large enough sum of money and was frittered away.
87 I have considered the materials touching upon the motivation and the destination of the money. Ultimately I am prepared to find that it was essentially wished away by you, that is that you did you not retain any real monetary benefit. The materials placed before me on the last date support that view. So your conduct can I suppose be compared to someone who is living the high life on the funds stolen from an employer. That was not what was happening here at all but the loss was the same loss.
88 You have at least entered into the arrangements to repay such amounts as you can. So the loss has been mitigated by your conduct in selling the house. There were some efforts to conceal or disguise the transactions. I agree it was not particularly complicated or sophisticated offending. The sums were transferred into your own account. It was as sophisticated as it needed to be and it succeeded as you were in such a position of trust you were in. You were the financial officer.
89 I have already said, and I repeat, I am satisfied that you were not exercising optimum judgment and I am satisfied that you were in fact duped by someone in an online ‘romance’, for want of a better term. But I am not satisfied on the balance of probabilities that there was any threat of harm to you or your family. Nor can I be satisfied as to when if at all there were any demands for money to avoid publication of images. The later screen shot was in a far later period and for a very modest sum and again I have your preparedness to meet the person mentioned in your discussions with the police informant in July 2020 when you believed that person was in the country.
90 I am though satisfied on the materials that you were prepared to lend to your ‘online boyfriend’ money taken from your employer. The fact that he was a charlatan, that this was a scam, does not excuse your conduct targeting your employer, no more than it would if he had been a living breathing boyfriend in your local town, a person you were prepared to help out with your employer's money. Again though, your conduct can be contrasted with someone taking the funds to live the high life or for direct personal benefit. That setting would have higher moral culpability than yours, but your culpability was high enough.
91 This was undoubtedly serious offending. That is conceded.
92 A person can fraudulently obtain a large sum of money with a single stroke of a pen or in a single EFT transaction. An alteration to a single cheque or a single fraudulent transfer can lead to a very sizable loss. So something that might be a once off, isolated act. Here your dishonesty was ongoing for over a month. You had a duty owed to your employer, was a not for profit entity, a duty which you totally abandoned. Though of course we see larger sums, sometimes much larger sums, this sum itself was substantial enough. Charge 1 was a touch over $148,000.
93 Your counsel submits that sometimes we see longer durations. Of course we do and when we do we must sentence that offender for that longer duration offending. What I have got to do is sentence you for your offending, and it was not a single day transaction.
Purposes
94 I turn now to make some general comments about the purposes of sentencing and the various matters which I must have regard to. Sentencing would be easy if all a judge had to do was take into account the rehabilitation of the offender. Not many people would be sent to prison if all one did was to focus on rehabilitation. No court takes any joy in locking up a first offender who has favourable prospects, but we as judges have to do it quite frequently. That is because there are the other purposes of sentencing in play.
95 My task is a much more complex one than just looking at what is best for you or your family, as I hope you, your family, and your many supporters may appreciate, but maybe they won’t. One of them, Ms Savige, writes, and I paraphrase, that gaol will not benefit anyone. Well it seldom does. It seldom benefits the offender. But there are broader purposes at play here when a judge comes to sentence. I must give weight to other purposes of sentencing, to specific and general deterrence, to protection of the community, to denunciation and to punishment.
96 Your future prospects are good. I have said as much and I do not ignore that fact. Your rehabilitation, though still of importance, must surrender some ground to other purposes and general deterrence is an important purpose of sentencing in this sort of case, as is correctly conceded by your counsel. That is so even allowing for the Verdins' driven moderation that I have spoken of.
97 Punishment is also an important sentencing purpose in this case. I must impose a just and proportionate sentence in relation to your offending.
98 I must denounce your conduct. Again, denunciation is important. This was serious criminal conduct targeting your employer in direct breach of your duties. You really should be ashamed of yourself. You are and that of course is a positive.
99 I must deter you from offending in the future. That purpose is known by us lawyers as specific deterrence. It must be given some weight in my sentencing task. You have favourable prospects into the future, I have mentioned that.
100 Given the nature of this crime, and I am speaking of the major crime here, its duration, its value, its high level of breach of trust, I must still give at least some weight to the principle of specific deterrence. No doubt I would give it far greater weight in a case with an offender with relevant past criminal history or an offender who had breached court orders in the past. No doubt I would give it far more weight in a case where there were less favourable future prospects and I thought there was a higher risk of re-offence, but I have got to deal with this case.
101 Of course, the favourable findings I make in your case serve to significantly moderate the weight I give to this purpose over and above the Verdins moderation allowed for. But I cannot just ignore this sentencing purpose, there must be some weight given to the need to deter you.
102 I believe the same approach can be taken to community protection. I cannot ignore that sentencing purpose either. But it likewise would be given far greater weight if you had less favourable prospects of rehabilitation or if you had relevant prior criminal history or a higher risk of re-offending. I suppose there is always a theoretical risk of reoffence but if I look at the realities in this case, I judge there to be a very low risk of reoffence here. The fact is the community has not needed protection from you in the past and probably will not in the future.
103 So I believe there can be very significant moderation of the weight given to specific deterrence and community protection. Those purposes very much drop away in my task.
104 That is actually not that unusual in the setting of white-collar crime, where often enough there is no prior criminal history and there are favourable rehabilitative prospects. Often enough, decent steps have been taken along the path to rehabilitation in the lead up to the Court hearing.
105 General deterrence relates to the need to deter other offenders. It is an important purpose of sentencing in this sort of case, one involving white collar fraud. See Bulfin[3]. General deterrence will usually carry a particular significance in this sort of case and that is the position here. That is conceded. You were in a position of trust. You used that position of trust to offend against your employer. This sort of dishonesty offence is not easy to detect. That is often as a result of the trust placed in the offender, as occurred here. This court must send a loud message to other individuals in the community in positions of trust who may be tempted to offend in the way in which you did. The likelihood of a prison term may serve to focus the attention of someone first contemplating any form of corporate or white-collar criminality (see Dyason v The Queen [2015] VSCA 120).
[3][3] DPP v Bulfin [1998] 4 VR 114
106 The Courts must convey the message that this style of serious calculated dishonest conduct will be met with substantial punishment. General deterrence is an important purpose. I have allowed for some moderation owing to the application of limb three of the case of Verdins, but it is still a powerful purpose here.
107 I pay regard to the maximum penalty and the impact of your crimes.
108 I must also take into account current sentencing practices. That is not a controlling factor.
109 There is little point looking at the sentencing statistics in this sort of case. Statistical material always has limitations. Obtaining Financial Advantage by Deception is an offence that covers a wide range of different factual settings. It can involve a breach of trust, but it can equally involve offending where there is no breach of trust at all. There can be differing amounts or durations or number of acts. Some indictments may roll up charges such as here into a single offence comprising many particularised acts set out in the schedule. Some are not rolled up. Statistics are silent on that sort of detail. In fact, statistical material is always silent about the individual features of the offence or of the offender. All the details which might explain the sentence are omitted from the statistics. They are just numbers on a page.
110 I have also looked at the cases to which I was referred by your counsel. I am more than a bit sick of being referred to decisions of judges of this Court. There are no matters of principle to be taken from any of those cases. A judge in each instance saw fit to impose a standalone community corrections order. A different judge in each case might have acted quite differently and not been in any way wrong. There is no such thing as one correct sentence. There is always an aspect of cherry picking in this exercise of providing cases to the Court. No doubt I could find as many where a standalone sentence was not considered appropriate.
111 There are always differences. For instance differences in the role within an organisation. In at least one of the cases referred to there was a lower level role within an organisation. You were not some part time accounts payable clerk (as in Chapman[4]) .You were the co-ordinator and financial officer. There were differences in matters in mitigation as well. I note for instance that the case of Sandoval[5], a Judge took into account the exceptional family hardship posed by the offender being the carer for a severely autistic and intellectually disabled dependent. There had also been an extraordinary delay, something running to about seven years.
[4]DPP v Chapman [2016] VCC 231
[5]DPP v Sandoval [2021] VCC 763
112 Other cases do not provide the answer to my task. They are not precedents or authorities. There are always differences in the offending and in the personal circumstances and that is borne out by my reading the various cases I was referred to.
113 I am not passing sentence in those other cases. What I have to do is pass an appropriate sentence in your case for your crimes. What occurred in those other cases really says nothing at all about what is required in your case.
114 The principles spelt out in decisions from the Court of Appeal are far more important than the actual sentencing outcomes in given cases from individual judges of this Court. The high importance of general deterrence in this sort of fraud is a common thread running through all the case law, and it is conceded to be a matter of significance in this case.
115 Most often, a white-collar criminal will have no prior criminal history. They will be in a position of trust. They will have, for whatever reason, bowed to temptation and dipped into the employer's funds. There can be many reasons for that, but almost invariably once exposed, white collar criminals call in aid their past good character and the enhanced rehabilitative prospects that they will usually have. General deterrence plays a key role in this sort of matter.
116 Prison is a disposition of last resort. Ms Smith urged me not to send you to prison at all. There was no pre-sentence detention in this case. She referred me to the case of Boulton[6] and argued that a suitably conditioned community corrections order on its own would achieve all the purpose of sentencing. The Director challenged the availability of that outcome and called for a prison term but conceded that owing to the matters raised in mitigation, that it would be open to combine that prison term with a community corrections order.
[6]Boulton v The Queen [2014] VSCA 342 (“Boulton”)
117 They are submissions made by each of the parties. I am not bound by the sentencing submissions made by either your counsel or by the prosecution. What I have to do is have regard to them as I do to every submission made to me, but at the end of the day I have to exercise my own sentencing discretion in this case.
118 That case of Boulton does not stand for the proposition that every offender for every crime should be admitted to a community corrections order either on its own or in combination with a prison term. A community corrections order is not a get out of gaol free card.
119 As a matter of law though, if a suitably conditioned community corrections order would achieve all the needs of sentencing in this case, then I would proceed in such a way. Section 5(4C) of the Sentencing Act1991 would require that outcome. Prison is a disposition of last resort.
120 Understandably, I have a level of anxiety in interrupting your ongoing rehabilitation. I have an understanding as to how disruptive prison can be. I know that you are not travelling at all well. Sending a person to prison really is a disposition of last resort. Those are not just words. That is the law. Dealing with first time offenders who have committed serious offences is one of the hardest sentencing tasks befalling a judge.
121 As I said earlier, there are some tensions in play as between rehabilitation and general deterrence. The more serious the crime generally speaking, the less weight can be given to rehabilitation. But I cannot just focus on your rehabilitation. It must surrender some ground to general deterrence in this case given the matters existing in aggravation.
122 In the case of Boulton to which reference was made by your counsel, and it is a case of which I am well familiar with of course, the Court of Appeal suggested that judges in my position ask the following question:
'Given that a community corrections order could be imposed for a period of years with conditions attached, which would be both punitive and rehabilitative, is there any feature of the offence or the offender which requires the conclusion that imprisonment with all its disadvantages is the only option?’' [7]
[7] Ibid at [121]
123 I believe that I must answer that question in the positive in this case. I do not believe that it falls within my sentencing discretion to place you onto a standalone community corrections order for offending as serious as this.
124 I am not of the view that a suitably conditioned stand-alone community corrections order could achieve the various purposes of sentencing in this case. General deterrence in particular is a significant sentencing purpose for white collar fraud and such a disposition, as is mooted by your counsel, would not pay anything resembling adequate weight to that purpose in my view. What message would it send to others in a position of trust? As far as I am concerned, the message would be altogether the wrong one.
125 I have no doubt at all that I must send you to prison, not because I want to or because there is any enjoyment in doing so or because I believe it will make you a better person but because as the sentencing judge presiding over this matter, I am required to impose an appropriate sentence. The only appropriate sentence in this case involves sending you to prison.
126 The question then for me is for how long?
127 If a suitably conditioned community corrections order in combination with a term of imprisonment of up to 12 months would achieve all the needs of sentencing in this case, then I would proceed in such a way. I have considered whether it would. If it would not then I would be required to proceed by passing a head sentence and fixing a non-parole period.
128 I have received the assessment report from Corrections, together with a Forensicare assessment. You are judged to be suitable for a community corrections order. There is no surprise in that conclusion. You are viewed as having a low risk of reoffence. I have said as much myself.
129 I believe that owing to the various matters raised in mitigation, it is open to admit you to a suitably conditioned community corrections order, which will take effect upon your ultimate release from prison. In that way, I will provide for you, a guaranteed release date. That may not seem much as you are sitting there now reeling under the effect of these words, but this will give you some certainty in your life. It gives you a guaranteed release date. That will be important to you as I accept that prison will be very tough on you. That sort of guarantee does not exist when a Court fixes a prison term with a non-parole period.
130 In proceeding in this way, I can limit your period in prison. I can shorten that exposure to prison whilst providing for your treatment, rehabilitation and ongoing punishment in far a less punitive setting upon your ultimate release in the not too distant future. This will have you serve, at least relatively speaking for these sorts of crimes, a reasonably short prison sentence, before being released onto a longer Community Corrections Order. I believe a disposition such as that can achieve all the purposes of sentencing.
Totality
131 I have paid regard to the principle of totality of sentence and have striven to ensure that the overall effect of this sentence is not crushing upon you and is commensurate with your overall criminality.
Compensation order
132 There is a compensation order in this case that is consented to and I have now signed that order. I order pursuant to the provisions of s.86 of the Sentencing Act, that having convicted you of obtaining financial advantage by deception, I am satisfied as a result of the offence that the Alexandra Community Hub has suffered the lost referred to in the document.
133 I order you pay to the Alexandra Community Hub compensation in the sum of $148,908.85. I have signed that order. That stands now as essentially a judgment debt, and as I understand it, the arrangement is already in place in terms of the sum in trust.
Sentence
134 I think I will have you remain seated in the circumstances. I am sorry I have taken so long to get to this point, but I had to explain to you and many others the reasons why I am doing what I am doing.
135 On the charge of obtaining financial advantage by deception and also the use of a false document I believe it is open for me to pass an aggregate sentence given that the prison term is only part of the penalty and given the link between the two offences that satisfies the criteria in s9 of the Sentencing Act. On those two charges you are convicted and sentenced to six months' imprisonment. In addition, on each offence you will be convicted and admitted to a two year CCO to take effect upon your release from prison, whenever that is.
136 I can only put you on this order if you consent to it and I will need to ask you in due course. You will need to listen and I will give you the chance to speak to Ms Smith before I ask you whether you consent to the order. I understand from the Corrections' document that you have an understanding as to the nature of your obligations under such an order.
137 The order will last for two years. As I say, it takes effect upon your completion of the imprisonment component. I do not know when that is going to be. It is not a matter of me simply looking at a date and selecting a date six months from now. It is possible, I do not know whether it will happen, but it would be possible that there might be some allowance made for the conditions that arise in prison, I have got no idea.
138 The point is it takes effect upon your release and you must report within two clear working days of your release from prison, whenever that is. You will need to attend at the Shepparton Community Corrections Office. The address will be on the document and you will get a copy of it. At the moment if you are out of custody you would need to report by phone. I think that would be the starting point when you are released.
139 You would ring them on the day of your release and arrange to go in to see them. So that is for the formal induction. These orders have got mandatory terms. They apply to everyone who gets one. You are getting one so they apply to you. They are as follows;
140 You must not commit another offence for which you could be imprisoned in the period of the order. That is two years from your release, you must stay out of trouble. It should not be a problem for you, you have stayed out of trouble your whole life other than on the occasions represented by these charges.
141 You must report to and receive visits from the Community Corrections Officer. You must report within two clear working days of being released. You have got to let them know within two working days of any change of address or job. You do not just get up and leave and then let them know down the track. Let them know in advance.
142 You must not leave Victoria without first getting permission to do so and you must obey all their lawful instructions and directions. So they are the mandatory terms. If you breach any of those you breach the order. Then there are the tailored conditions that I apply to the order. That is to deal with aspects of treatment and rehabilitation, but also in terms of ongoing punishment.
143 You will need to do some unpaid work. I am keeping the figure down to a quite manageable level in the circumstances, recognising as I do that of course the six month term of imprisonment is a sizeable component of unmistakable punishment. So you must perform 150 hours of unpaid work over the period of the order.
144 You also will need to undergo any mental health assessment and treatment as directed. It is a longer description than that, but you will see it when you see the order. So they can give you directions in terms of mental health assessment and treatment and you must comply with it.
145 You must also undergo assessment and treatment including testing for alcohol abuse or dependency. So again they will be in a position to give you directions as to either testing or treatment, and you will be obliged to follow through with that.
146 I am not going to have you under supervision. I am not going to monitor you or anything like that. I am not going to have other programs. As I have said, the view of Corrections is you are a low risk of reoffending and I have already said as much in my own judgment, so as I say I am maintaining some conditions predominantly to deal with aspects of treatment and rehabilitation, that is the alcohol and the mental health and with that more minor aspect of punishment that has been reduced given the fact that this exists in combination with a prison term.
147 So they are the full suite of terms and conditions. I have not said what occurs if you breach the order, and I need to explain this to you. I do not want someone consenting to one of these orders and then coming back in breach and saying, 'I didn't know what could happen'. It will probably never happen because I explain these orders in some detail.
[*At this stage there was some feedback through the Webex Meetings application with voices heard, including children’s voices]
148 HIS HONOUR: Sorry about that, Ms Kilgour, I do not know what that was all about, but I was just dealing with the aspect of the breach. Ifyou breach any of the conditions or the terms that I have spelt out, you will breach this order. Breaching one of these orders is itself a criminal offence. It is punishable by a term of three months' imprisonment I think it is the maximum penalty, but that is not the real problem.
149 The problem is if you breach the order you then get brought back to court for the breach. That is not in the Magistrates' Court, you will be brought back to the County Court and back in front of me. You do not want to do that. I do not want to see you again. You certainly will not want to see me again, I am sure of that.
150 Regrettably I am of the view that I have no option but to send you to prison and that is what I am doing here today. I am sending you to prison, but limiting the exposure to prison by placing you on an order such as this. But if you breach the order you get brought back in breach. There is a very limited range of options open to a court when dealing with a person for breaching one of these orders.
151 I cannot say exactly what I would do if you were to breach it. I am hoping you will not. I do not think you will, but if you did I would need to listen to anything that was said on your behalf and make judgments as to the nature of the breach and what I was required to do, but I think work on this theory; that the most common outcome for anyone breaching one of these orders is that the order is then cancelled.
152 Cancellation of the order sounds like a desirable sort of outcome. It is not because if I cancel the order I then need to resentence you. I would then need to resentence you in relation to obtaining financial advantage by deception and using a false document, so I would take into account the extent of your compliance with the order. I would then have to resentence you.
153 Work on the theory if that takes place that you should expect to receive a term of imprisonment and one of a dimension where I would be required to fix a non-parole period. That is not what I have done here today. I believe that the release mechanism that is a guaranteed one is the way to go here today for all the reasons urged upon me.
154 But as I say, if you breach this order work on the theory that you are likely to receive a term of imprisonment of greater than 12 months with a non-parole period. So let me just see if there is anything else I need to explain.
155 Ms Smith, I think I might get you to go down and speak to your client. Are you satisfied I have said what I need to say to get some informed consent from her or not?
156 MS SMITH: I am, Your Honour. Certainly I have already had conversations with her about the order and breach implications.
157 HIS HONOUR: Go and have a quick chat and I will then ask whether she is consenting.
158 MS SMITH: Thank you for that time. She indicated through me her consent to the order. If I could just ask as a matter of custody management issues that the reports of Mr Cummins and Mr Powles be provided to Corrections just in relation to the expressed concerns about her mental health?
159 HIS HONOUR: I will do that. I am not finished with my remarks. I have looked at that order. Just satisfy yourself that it mirrors my stated intention and then I might get you to head down and have it signed if you would, thank you.
160
MS SMITH: Thank you, Your Honour. I am satisfied it matches with
Your Honour's announcements.
161 HIS HONOUR: What did you want me to say in terms of custody management? I will come to that in a second. Hold on, I will just get her to consent to the order. Ms Kilgour, do you confirm that you have signed this community corrections order?
162 OFFENDER: Yes, I have, Your Honour.
163 HIS HONOUR: You have signed it under the words, 'I understand the effect and the conditions of this order and consent to it being made', and you consent to this order?
164 OFFENDER: Yes.
165 HIS HONOUR: Thank you. We will have a copy of that made for you.
Section 6AAA
166 I have mentioned that I have taken into account your guilty plea. If you had you pleaded not guilty and been found guilty by a jury in relation to these matters, there would have been no possibility of a combination type outcome here. I would have sentenced you to a period of three and a half years’ imprisonment. I would have fixed a non‑parole period of two years and three months. That also has to be noted in the records of the court.
167 So there is no s18 period to declare here of course. Custody management, do you want me to actually identify anything in the actual form of the order or not?
168 MS SMITH: It is the second final paragraph, Your Honour, of Mr Powles' letter dated 24 April 2021. It just nominates that by Mr Powles' letter that my client expressed suicide ideation to him if the sentence is custodial.
169 HIS HONOUR: I can do it in a few ways. I can say it is her first time in custody and she has expressed what I will say suicidal ideation.
170 MS SMITH: Yes, Your Honour.
171 HIS HONOUR: I will say, 'Please see the reports of Peter Powles and Geoffrey Cummins.
172 MS SMITH: Thank you, Your Honour.
173
HIS HONOUR: I have made a note of that custody management issue and,
Ms Smith, you will go down and see your client downstairs?
174 MS SMITH: Certainly, Your Honour.
175 HIS HONOUR: It is obviously very distressing for her and you will need to I guess do as best you can to talk her through what lies ahead in terms of visits and phone contacts and those sorts of things.
176 MS SMITH: I am particularly concerned in relation to custody management because in my brief discussions she believed at least that was her children on the audio there.
177 HIS HONOUR: Yes, I am horrified if it was and that is my fear.
178 MS SMITH: But certainly that is what she expressed to me and what - - -
179 HIS HONOUR: I do not know who else would be watching this with children or why anyone would be watching it with children is bewildering to me.
180 MS SMITH: If I could just indicate that there was an audio glitch and that there was a period when you were announcing sentence when children's voices were heard.
181 HIS HONOUR: I have no idea who they were or the setting in which they have actually happened be heard on the Webex, but I certainly hope it was not her children, but anyway there is not much I can do about it.
182 MS SMITH: No, Your Honour.
183 HIS HONOUR: I have signed that formal order. You will speak to her about her rights in relation to this matter obviously.
184 MS SMITH: Certainly, Your Honour.
185 HIS HONOUR: And all these other matters. Ms Kilgour, you will need to go downstairs now and Ms Smith will come down and have a chat to you about your rights in relation to this sentence and all these other matters that you will need to deal with in terms of going into custody for the first time, so she will be down there to have a chat to you shortly.
186 Just hold on. Is there any particular reason why she - she has not been in custody today. Your mother will be in contact with you in due course when she can. I think she just wanted to give you a hug and she can do that.
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