Director of Public Prosecutions v Klein
[2012] VCC 899
•28 June 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. 12-00641
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NANCY KLEIN |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 28 June 2012 | |
CASE MAY BE CITED AS: | DPP v Klein | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 899 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. Bessell | Office of Public Prosecutions |
| For the Accused | Mr G. Hughan |
HIS HONOUR:
1 Nancy Alice Klein, you have pleaded guilty before me to three charges of obtaining financial advantage by deception, one charge of handling stolen goods and two charges of making a false document. At the time of this offending which occurred between June and November of 2010, you were employed by VicRoads at the Hoppers Crossing Customer Service Centre. You were initially employed there in May of 2008 as an agency employee but began working for them on a permanent basis about five months later.
2 According to the prosecution summary, although you were trained initially in customer service and basic VicRoads transaction, you showed promise and your attitude and aptitude impressed your peers. You apparently learned VicRoads policies and procedures quickly and therefore you were trained in numerous roles, including the registration of high risk vehicles. You were often called upon to mentor junior staff and would regularly answer their questions and help them through their work. As a result of your expertise and attitude, you were ultimately placed in a very trusted position with VicRoads with great responsibility and were in the process of being groomed by your supervisors to become a manager.
3 Then in early 2010, managers at VicRoads realised that you were starting to perform transactions for your associates and you were warned on a number of occasions that these actions were prohibited and must cease. However, you simply altered the way you carried them out in an effort to avoid being detected.
4 Charge 1 relates to an incident where on 4 June 2010, one Rudolf Cordina attended VicRoads at Hoppers Crossing and asked you to register his 1954 Oldsmobile Coupé. Part of the registration was to list a dutiable value of the car, however Mr Cordina explained to you he had bought the car in America for $4000 and that, including importation costs, the car actually cost $18,000. He told you the market value was around $30,000. Despite this information, you listed the dutiable value of the vehicle as $4000, resulting in Cordina paying $160 in stamp duty instead of a greater amount, which would have been between $720 and $1480, depending on the dutiable value of the car. Obviously the reduced value meant that less stamp duty was paid to the State Revenue Office.
5 The second charge relates to a man named Jake Mabis who was an associate, it would appear, of your partner but whom you knew. He purchased a Nissan Patrol from one Noel Piggott and the car was registered in his name. On 8 June 2010, Jake Mabis's brother Luke attended the VicRoads store at Hoppers Crossing where you supplied him with a replacement set of number plates for the Nissan without Piggott's approval or without transferring the registration, which is against VicRoads' business rules.
6 On 2 September 2010, you arranged for another set of replacement plates for Jake Mabis and used Piggott's pensioner concession details for Mabis to pay a reduced registration fee. This was done by you without Mabis attending the VicRoads store. This transaction was also without Mr Piggott's knowledge or approval and again against VicRoads' business rules. These actions were also against the Systems Responsible Use Policy in which you had been trained.
7 Charge 3 relates to an incident involving a situation where your partner Lindsay Marchant was given drugs in exchange for your assistance to register a stolen motorcycle. On 14 September 2010, you accessed the VicRoads database and searched for a vehicle identification number which would not be recognised by the registration database, doing this in the belief that the VIN could then be stamped on the stolen motorcycle and be used to register it without its stolen status being detected. You relayed this information to an associate who used the VIN number and stamped it onto a stolen 2008 Ducati motorcycle in order to rebirth it.
8 On 16 September 2009 you accessed the VicRoads database and searched different variations of that VIN in an effort to confirm an appropriate VIN which you could assign to this stolen motorcycle in an effort to allow it to be registered undetected. Later that same day, one Damian Jones, an associate of your partner Lindsay Marchant attended VicRoads and met with you and you then processed the registration fraudulently. You did not sight the stolen motorcycle as was required and Jones provided fraudulent documents which you used to register the motorcycle.
9 Because a fraudulent VIN was used, the registration database did not accept the registration, so you registered the 2008 model motorcycle as a 1988 model, which allowed you to bypass the security checks built into the registration database. You knew that the motorcycle was stolen and that your actions would assist in the retention of stolen goods.
10 Charge 4 relates to an incident where on 8 October 2010 you met with Jacob Mabis, who is the holder of an expired car and motorcycle learner's permit. The VicRoads business rules stated that Mabis could not renew his motorcycle learner's permit until he had sufficiently resat the required riding and knowledge tests. On 8 October 2010 when Mabis attended at VicRoads, you filed a VicRoads license or learner's permit form, renewing Mabis's motorcycle and car learner's permits for him without Mabis completing the necessary motorcycle learner's course. In addition, you did not test his eyesight but indicated on the forms that this test had been conducted. These actions were also against VicRoads business rules.
11 Charge 5 related to an incident where on 4 November 2010 you registered a Holden sedan for an associate where you listed the dutiable value of the vehicle at $7000, which was less than half of what it should have been, resulting in the associate paying only $280 stamp duty. The Red Book value of this car was between $17,000 and $19,000, at which the dutiable value would have been between $680 and $800. These actions were also in breach of the VicRoads business rules.
12 Charge 9 relates to an incident where on 12 November 2010, one Waled Hadara, an associate of Lindsay Marchant, your partner, attended the VicRoads Hoppers Crossing store and met with you and you registered a 1964 Lincoln sedan for him. The vehicle did not belong to Hadara but to another man. That actual owner was not present and neither was the vehicle. The car was not presented for inspection because it was not in a roadworthy condition and the business rules clearly stated the car must have been inspected and the registered owner or an authorised agent present the car. You filled out a vehicle registration form stating the vehicle inspection was completed. This was against the VicRoads business rules.
13 On Monday 15 November 2010, you were arrested and taken to the Altona North Police Station, where you were interviewed regarding some of these offences, at which time you were cooperative and provided admissions. There was further investigation and on Friday 20 May 2011 you were again interviewed by police at the Wyndham North Police Station where you were again cooperative with police and admitted your involvement with the offence.
14 You have no prior convictions. You entered a plea in relation to these matters at the second committal case conference hearing and it is therefore accepted that you entered a plea at the earliest opportunity. As a result of this early plea and the cooperation you showed to police, I am satisfied that you have shown appropriate remorse for your actions and that the plea of guilty attracts more than a utilitarian value in the sentencing exercise before me.
15 I now turn to your personal circumstances. You are 29 years of age and are currently occupied full time in a position of home duties with your one year old son Chase. Obviously as a result of this offending you lost your job and you have not been employed since.
16 You were born in Melbourne to a man from whom your mother separated before you were born. She thereafter formed a relationship with a man named Robert Klein, whose surname you have taken on and had three further children with him. Your mother and Mr Klein lived together but ultimately your mother left him because he was violent and moved to the Latrobe Valley area when you were about eight.
17 The family then moved from place to place but initially lived in Churchill, where they made the acquaintance of your next door neighbour and ultimately family friend Mr Craig Coombe, with whom your mother formed a de facto relationship about four years ago. However, whilst living in Gippsland, your mother reformed a relationship with your natural father, by whom she had two further children, boys, now aged 18 and 16.
18 However, between the ages of 14 and 17, your father sexually abused you. You told no one but according to psychologist Pamela Matthews, whose report dated 26 June 2012 was tendered on the plea, you behaved in such a way that your parents essentially asked you to leave and you went to live for six years with your maternal grandmother in Werribee.
19 At the time you left your family home, you were three quarters of the way through Year 12 and were apparently an A-grade student. You attempted, once you went to live with your grandmother, to take up Year 12, but were unsuccessful and did not return to school.
20 You then undertook a traineeship with the Bi-Lo supermarket, which lasted for two and a half years to the end of 2002 but did not take employment up there once the traineeship was finished. You were then employed at a cheesecake shop and then in early 2008 took up employment with VicRoads.
21 At the age of 21, you met your partner Lindsay Marchant, at which time you were still living with your grandmother. Eventually after a couple of years you moved out and resided with Mr Marchant's mother for about 18 months. For a further 18 months, you and Mr Marchant lived independently from his mother but then for financial reasons returned for another 18 months to live with the Marchant family and you were residing there at the time that these offences were committed.
22 Lindsay Marchant, who is the same age as you, left school at the age of 15 and swiftly formed a cannabis drug habit of some depth. His older brother Luke is apparently a heroin addict. He was raised by his mother. His father was apparently not present from an early age. Your counsel informed me that your relationship with Mr Marchant, which is the only relationship you have ever had, developed very quickly. For the first 12 months, you were not aware of Mr Marchant's background, which has involved a number of appearances in Magistrates' Courts for offences mainly in relation to drug use, driving offences and dishonesty offences such as burglary. He recently served one month of a suspended sentence which had been imposed for a driving offence, which he breached by further offending. He apparently has outstanding offences relating to driving without authorisation.
23 It appears this is a relationship where, as far as I can glean from what you said to me in court, what your counsel told me and what appears in Ms Matthews' report, he is dominating of you and it is not disputed by the prosecution that essentially the offending you undertook was at the behest of Mr Marchant. I am prepared to accept this because you are a person of no prior or subsequent criminal history. You appear to have been progressing very well at your job and certainly it seems all the benefits of what you did went to persons who were friends of your partner Lindsay.
24 One month after this offending were discovered, you then found that you were pregnant. As a result, you had a number of conversations with Mr Marchant, who promised to attend to his offending and drug habits and you now reside with him in rented premises, which you moved to from his mother's house thereafter. Your son Chase was born prematurely in June 2011. You have the full time care of him and indeed it appears you are very much the primary caregiver.
25 Mr Marchant, it appears, has made some efforts but is still using marijuana to some extent. It appears that he has ceased some of the criminal associations that he was mired in at the time of your offending. Nevertheless, with all due respect, it appears to be an unsatisfactory relationship.
26 It appears from the psychological report that you are a person of good intelligence but, according to Ms Matthews, poor insight. Ms Matthews described in her report your history when you grew up and she essentially described that upbringing as a person who had a "tragically chaotic childhood involving violence towards herself, her mother and siblings by her stepfather and sexual abuse by her biological father".
27 It was her view that your attachment to Mr Marchant, whom she terms your first adult partner, involves domestic violence as defined under the Family Law Act 1975. Now, that does not mean that your partner is violent towards you but it appears he is domineering and verbally abusive towards you and this is termed domestic violence under the Family Law Act.
28 She said that you are suffering post-traumatic stress disorder, which she described as an anxiety disorder characterised by anxiety which "not only relates to the original trauma but is also related to the individual sense of self and sense of vulnerability. She stated:
"Ms Klein clearly feels vulnerable in her current relationship and this feeling was heightened during the time of the matters before the court, during which she reports her partner was standing over her to perform most of the transactions that bring her before the court."
29 She said that the post-traumatic stress disorder arises largely from the trauma of your upbringing, in particular the sexual abuse which you only revealed to your mother three years ago and which prompted her leaving your father. You have never had counselling for it and you reported to Ms Matthews flashbacks in relation to that abuse. I am satisfied that you continue to suffer unresolved, very troubling psychological issues in relation to that sexual abuse. It is my view that this has very much interfered with your sense of confidence and self and has led to you forming a relationship with your partner and remaining in it, although it seems to be most unsatisfactory, and which because of it you have behaved in a criminal way for the first time in your life, at a late stage in your 20s, in a way that I am satisfied is totally uncharacteristic.
30 Here I refer to references written by friends and family as to the sort of person they know you as. All of them describe your offending as completely out of character to the honest, trustworthy and responsible person they have known you to be. Those persons have known you for a number of years. They described you as extremely responsible and taking over in many situations a maternal role with your younger siblings whilst your mother was undergoing bouts of depression during the trauma she was enduring at the hands of first a violent partner and then your father, whom it appears she left as soon as she discovered the sexual abuse that he had been meting out not just to you but then your younger sister after you left home.
31 In my view, this is a particularly sad case. Ms Klein, you are a very bright young woman. You have clearly a great deal of competence. You are clearly somebody who was recognised by VicRoads as being responsible and capable and it is quite clear you had a very good future with VicRoads. It is clear that since the offending was detected, none of that ability has been able to be used by you in any career sense.
32 You appear to be reliant on your partner who I am told apparently works on an intermittent basis as a traffic control operator but keeps being unable to work in this employment because he keeps losing his license, which is required for the job. Obviously this must mean that you live somewhat precariously in a financial sense and your current situation does not appear to be a particularly happy one.
33 Nevertheless, I note that there has been no further offending and certainly it is my view that your prospects of rehabilitation, particularly insofar as further offending is concerned, are good. I do not think you are a person who ordinarily the court would ever have expected to see before it, had you not formed the associations that you did.
34 Ms Matthews also noted that you are also showing symptoms of an obsessive compulsive disorder. Ms Matthews stated:
"In addition to post-traumatic stress disorder, people who have experienced a traumatic life event may also be more likely to develop symptoms or features of an obsessive compulsive disorder."
35 She went on to say:
"After experiencing a traumatic event, a person may constantly feel anxious and have concerns about their safety. Compulsive behaviour such as checking, ordering, cleaning or hording may make a person feel more in control, safe and reduce anxiety in the short run."
36 She said that you reported a number of obsessive characteristics around cleaning. She also stated that she believed that in her view there was a connection between your developmental history, your diagnosis of post-traumatic stress disorder, your current relationship with your partner and your offending. That is, she said:
"With escalating anxiety and emotional vulnerability playing a significant part in giving in to her partner and hence her criminal behaviour."
37 It was her view that you were likely to have a great deal of difficulty with incarceration, stating it was:
"Likely to impact negatively on her mental state, exacerbating her anxiety and features of OCD and also place her in an environment in which she will be very both physically and emotionally vulnerable."
38 I noted for example that you were teased when you were at school because you were very small and certainly my observations of you are that you are still a fairly small and frail woman.
39 In saying all this and outlining all these mitigatory factors, I do not want to move away from the seriousness of your offending. You had an extremely responsible job which involved working for a public institution which has control of registration of cars, where you had a great deal of capacity to assist others in criminal endeavour. In particular, it was serious that you arranged registration details so that a stolen vehicle could be rebirthed. The rules that are in place relating to VicRoads and relating to the control of vehicles and drivers' capacity to operate cars are extremely serious and strict and for a good reason. The workings of VicRoads have enormous impact upon the public and VicRoads are extremely reliant upon their staff who are given a great deal of responsibility to ensure that those rules are enforced and the general safety of the public preserved.
40 What you did was an absolute breach of trust that had been reposed in you and, notwithstanding that you did give in to your partner and that there was some duress, there was in my view a duress which fell far sure short of a standard which could be applied so that you could have used it as some sort of defence in a criminal trial. You still have choice, Ms Klein, and the decisions you make in your life are yours. You are not a person who carries with you problems with drugs or alcohol. You have a problem with anxiety and you allowed yourself to be persuaded to act in a criminal way which I am perfectly satisfied you knew was completely wrong and dishonest.
41 An aggravating factor in my view is the fact that VicRoads had already warned you about such behaviours and yet given you another chance, so high was their regard for you. So in a sense you abused their trust in a double sense, first by the criminal actions that you undertook and then, secondly, by abusing the second chance that you were given by your employers.
42 Ordinarily, a person who has behaved in the way you have who has committed offending which amounts to such a breach of trust could only expect to be dealt with by a sentence of imprisonment, either to be immediately served or suspended. Indeed, it was urged upon me by the prosecution that I deal with you by way of a sentence of imprisonment which should be partially suspended. I indicated at the time that the prosecutor Mr Bessell informed me those were his instructions, that I had formed a view that it was not appropriate for you and in particular for the community. I have no doubt that were I to sentence you in that form, your exit from the prison would be one where you were a person who would be greatly diminished in your capacity to care for yourself, for your child and to carve out a future for yourself.
43 It is entirely a matter for you, but the question of whether you wish to continue in this relationship, should the unsatisfactory aspects of your partner's behaviour not improve, is one that I think will loom in your life and will be a very difficult decision for you. It seems to me that your own poor sense of self and vulnerability have meant that you have been prepared to overlook a number of very unsatisfactory features about your partner, who is also the father of your child, because you would find it very difficult emotionally to separate from him. Nevertheless, the day is going to have to arrive, it seems to me, where you are really going to have to lay down an ultimatum insofar as he is concerned. That is, that his behaviour must completely improve or you will leave him. I certainly do not see your capacity being able to do that is going to be improved by placing you in gaol.
44 What I do propose to do is place you on a community corrections order. I am doing this because there will be a condition that whilst you are on that order you will have to attend for counselling of some kind. It seems to me extremely important for your own wellbeing that you do explore the issues that lie around your sexual abuse and your own diminished sense of self worth and the other issues that lay directly beneath your offending. I am quite satisfied that you present as a low risk of re-offending and, in sentencing you in the way I do of course, I take into account your early plea of guilty, your evident remorse, your good prospects for rehabilitation and the fact that I am satisfied I am not putting the community in any sort of danger by ordering that you are placed on this order as you are.
45 I also have regard to the fact that the aim of a community corrections order generally is to replace suspended sentences, which will ultimately be abolished as a disposition in sentencing in courts generally.
46 However, I must tell you Ms Klein that should you breach this order either by further offending or by non-compliance with the conditions, you will be brought back before me on breach of the order. If you do, it will take a lot of persuading for me not to put you in gaol. Your offending, as I have said, is extremely serious and is the sort of offending that undermines the regulatory authority and competency of a public institution such as VicRoads which, as again I repeat, has immense responsibility in terms of general safety on the roads throughout this state.
47 I can only place you on a community corrections order with your permission, so could you stand up please? I will outline the conditions to you and then ask if you are prepared to enter the order.
48 For the duration of the order, you must commit any offence punishable by imprisonment either inside or outside of Victoria. This does not mean that any future offending has to involve you going to gaol, but if you commit an offence for which theoretically you could be placed in gaol, that is enough to breach the order. Secondly, you must report to and receive visits from the community corrections officer. Thirdly, you must report to the appropriate community corrections office which will be outlined on the form that you will be given within two days of the passing of this order. That is by I think Monday of next week. You may not leave Victoria without the permission of a community corrections officer. You must obey all lawful directions of a community corrections officer and you must advise the community corrections office of any change of address or employment within 48 hours of any such change.
49 I am going to order that you be under supervision as a special condition. I am going to order that you perform 200 hours of unpaid community work and I am going to order that you be assessed for psychiatric or psychological treatment and testing as ordered. I am also going to order that there be judicial supervision of this order, so that I will receive a report every three months as to how you have progressed. The order will last for a period of two years. Are you prepared to enter the order?
50 OFFENDER: Yes, Your Honour.
51 HER HONOUR: Yes, thank you. Just have a seat and we will get the order printed out. Yes the order will be - I think I have got the power to do this - an aggregate. I think I can impose an aggregate community corrections order in relation to this sentencing. So you are getting an opportunity, Ms Klein, and that is because of your good character and because of how you have performed in the past and it is up to you as to how it goes from now.
52 I note also that your mother and her partner were present in court and that you do enjoy a good relationship with your mother and her partner and your siblings, so hopefully that is a resource you can draw upon in the future. Thank you.
53 MR BESSELL: My instructor, Your Honour, is just raising the 6AAA issue?
54 HER HONOUR: Oh yes thank you, I was just thinking that as you got up, Mr Bessell. Pursuant to s.6AAA, had you not pleaded guilty to this offending, I would have sentenced you to 12 months imprisonment and order that you serve six months of that, the remainder being suspended for a period of 12 months. This will be a conviction as well. Yes, I will just get you to sign that thank you, Ms Klein.
55 MR HUGHAN: Excuse me for a moment please, Your Honour?
56 HER HONOUR: Pardon?
57 MR HUGHAN: Just excuse me for a moment?
58 HER HONOUR: Yes, of course.
59 MR HUGHAN: That is signed now. Your Honour pleases.
60 HER HONOUR: Yes, thank you. All right, Ms Klein. I hope, as much as being a punishment, this order will be of some use to you.
61 OFFENDER: Yes, Your Honour.
62 HER HONOUR: All right? And that you can really use whatever counselling is order for you to your greatest advantage. You will possibly be sent to somewhere like CASA, the Centre Against Sexual Assault, where the issues relating to your sexual abuse will be looked at. Do not underestimate, as Ms Matthews clearly has not, the effect that that has had on you, okay? It is certainly the experience of this court that that sort of experience has a massive effect upon victims of sexual abuse. It is not your fault that it happened at all but it is a particularly unfortunate occurrence for you and you really need to have a look at it.
63 OFFENDER: Yes, Your Honour, thank you.
64 HER HONOUR: Thank you very much, I wish you all the best.
65 OFFENDER: Thank you.
66 HER HONOUR: Thank you very much for your attendance and I thank counsel for their assistance and the informant. Yes, we will adjourn.
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