Director of Public Prosecutions v Koukouravas
[2020] VCC 128
•24 February 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-00941
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREA KOUKOURAVAS |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 and 20 February 2020 | |
DATE OF SENTENCE: | 24 February 2020 | |
CASE MAY BE CITED AS: | DPP v Koukouravas | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 128 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: 2 rolled-up charges of theft by offender from her employer – employed as CEO by family company in position of trust in charge of financial matters – systematic theft of monthly amounts of $9,166.66 by diverting payments due to her employer to her own account over a period of 1 year and 10 months – total theft of $229,166.50 causing financial loss to company, necessitating termination of 5 staff members and company ultimately placed into liquidation some 5 years after offending commenced – total restitution of amount stolen to liquidator – reason for theft related to offender giving her son money to support his ice addiction – alleged threats by “nefarious persons” on behalf of drug dealer – evidence of expenditure of money on overseas holidays and purchase of vehicle for drug-addicted son – plea of guilty – limited remorse – no prior convictions or subsequent convictions – reasonably good prospects of rehabilitation – some evidence of symptoms of depression and Post-Traumatic Stress Disorder
Legislation Cited:
Cases Cited:
Sentence: Total effective sentence: aggregate 4 months’ imprisonment and a Community Correction Order for 2 years upon release
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M Roper | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr J Dounias | Vassis & Co |
HER HONOUR:
1 Andrea Koukouravas, you have pleaded guilty to two charges of theft, each of which carries a maximum penalty of 10 years’ imprisonment.
2 The agreed circumstances of your offending are detailed in the summary of prosecution opening for plea (Exhibit “A”).
3 The background to your offending is that, in 2013, Rachel Johnson, the sole director of Encompass Medical Centre Mount Waverley Pty Ltd (“Encompass”), was in the process of establishing a business to operate a medical centre at 533 Blackburn Road, Mount Waverley. She and her husband, Mr Anthony Aloi, had previously been involved in operating businesses which managed other service providers in the healthcare industry. However, this was the first time that Ms Johnson had embarked upon the management of a general medical practice and it was her own business initiative. She was the director of Encompass and her husband acted as a consultant to it. Various of their family members were employed in the business.
4 In 2013 you had been employed by the Victorian branch of the Australian Medical Association (“AMA”). Your role involved advising and assisting businesses which were establishing medical centres to ensure that they complied with the standards required by the AMA. You provided guidance to Ms Johnson in this regard. Her husband, Mr Aloi, had specifically contacted you to assist, as he had met your previously. At some stage in mid-2013, you expressed interest in becoming the CEO of Encompass and, after a round of interviews, you were offered the position of CEO and accepted the role in December 2013.
5 The medical centre commenced operating in 2014 and you formally commenced your role as CEO of Encompass on 10 February 2014. In early 2014, you negotiated a lease with Melbourne Pathology for a collection centre that was to operate at the medical centre building. The lease was signed, with a commencement date of 1 March 2014 for a period of three years, and an annual rental of $100,000 per year, or $9,166.66 per month. On 1 April 2014, Melbourne Pathology’s accountant, Mr Khong, paid the sum of $18,333.32 (two months’ rental) into Encompass’s bank account. The relevant bank account number had been put on the rental invoices issued by Encompass’s practice manager at Mt Waverley, Ms Knowles. You advised Ms Knowles that the Melbourne Pathology rental payments had been made into the wrong account. You provided her with a handwritten note reading, “BSB: 033390-22641 Budget Thursday Holding Account”. This was a Westpac account which had been opened in your name back in 2006. You told Ms Knowles that this account was an Encompass holding account and instructed her to transfer the Melbourne Pathology payments into that account. Ms Knowles followed your instructions and transferred money from the Encompass account into what, unknown to her, was your account as follows: $9,166.66 on 9 April 2014, $20,000 on 1 May 2014 and $7,499.98 on 8 May 2014. This total of $36,666.64 comprises the rolled-up charge, Charge 1.
6 On 26 June 2014, you requested Ms Knowles to forward to you the rental invoice template for Melbourne Pathology, which she duly did. You subsequently forwarded rental invoices to Mr Khong at Melbourne Pathology, listing the account into which the moneys were to be paid as your own Westpac account. Each month, from 1 July 2014 through to 1 March 2016, Mr Khong from Melbourne Pathology, pursuant to the invoices issued by you, paid rental of $9,166.66 due to Encompass into your account. Twenty-two transactions over this time, amounting to $192,499.86, comprises your offending on the rolled-up charge, Charge 2.
7 It should be noted that for reasons unrelated to this offending, your employment with Encompass was terminated on 31 December 2015. Even after you left the company, for the ensuing three months of January, February and March 2016, amounts of $9,166.66 were paid into your account by Melbourne Pathology. Apparently, the systematic theft which you had put in place came to an end on 2 March 2016. On that date, although you were no longer employed by Encompass, you attended a meeting which you had apparently organised with the general manager of Melbourne Pathology. A representative from Encompass came to the meeting. At that meeting, you provided a new bank account number (which was Encompass’s actual bank account) into which Melbourne Pathology was henceforth to pay the monthly rent. No further payments were made into your own account. On that same day, you electronically transferred the $9,166.66, which had gone into your account the previous day, back into Melbourne Pathology’s account. Thus, although you personally did not benefit from this $9,166.66, Encompass was nevertheless deprived of it.
8 Your offending remained undetected until early 2017 when negotiations were taking place for a new lease between Melbourne Pathology and Encompass Medical Centre. It was then that it became apparent that rental payments made by Melbourne Pathology had never been received by Encompass. Ms Johnson arranged for a full audit of all accounts and the extent of your theft was discovered. On 31 March 2017 a letter of demand requesting that you repay stolen moneys, together with interest and legal costs, was sent to you by Encompass’s solicitor. No response was received from you. Your offending was reported to police in April 2017.
9 Following a police investigation, which involved examination of the records and accounts of yourself, Melbourne Pathology and Encompass, as well as the taking of statements from multiple witnesses, you were arrested on 21 December 2017. In response to the allegations, you lied to police, stating that you had received the rental payments in accordance with an agreement with your employer. When asked to elaborate upon that agreement, you answered “no comment” to police questions, as is your legal entitlement. You were charged by summons on 25 October 2018. Subsequently, there was a filing hearing and two committal mention dates and the matter was set down for contested committal on 15 May 2019. On the day of the committal, the matter resolved and you indicated an intention to plead guilty to the charges prior to calling of the two witnesses who had come to give evidence at Court that day.
10 You are presently aged 44 years, having been born on 21 June 1975. You come before the Court with no prior or subsequent criminal history.
11 In a plea on your behalf, Mr Dounias stated that you were the only child of your parents, each of whom were born in Greece and had met in Australia. When you were only a baby, your father left the marriage and returned to Greece and you have never met him. Mr Dounias stated that your mother was an inconstant presence in your life. You were effectively reared by your grandmother and had no real relationship with your mother. You enjoyed a close bond with your grandmother, who died shortly before your 18th birthday. Your grandmother left you her house, although your mother apparently contested this legacy to you.
12 You completed Year 12 at Kilbreda College and, shortly after you turned 18 years of age, you married Sam Koukouravas, by whom you have two children, your son born in 1996 (currently aged 23 years) and your daughter born in 1999 (currently aged 20 years). Your counsel stated that your husband was not a good father to the children and ultimately left the marriage. You had trained as a nurse and, after working for a time in nursing, you took on administration and management roles and eventually obtained a position with the AMA where you worked for approximately eight years up until the end of 2013. You held a senior role as director of commercial services, which, as I have mentioned, involved providing advice and assistance to general practitioners’ practices and clinics. By that stage, you were earning a salary of $150,000 per annum.
13 Mr Dounias stated that, whilst effectively being the sole parent to your two children and working full time, you had undertaken part time study and completed your Masters of Business Administration in 2003. However, on the second day of the plea hearing he told the Court that, although you had undertaken some subjects part time on-line, you did not ever complete your Masters of Business Administration.
14 The position which you obtained with Encompass involved a $30,000 per annum increase in salary, namely an annual salary of $180,000, together with superannuation payments. Your counsel stated that it was around the time that you left the AMA that your son “had fallen in with the wrong people and drug use”. You were in a de facto relationship at that time with Mr Rick Cristiani, however, Mr Dounias stated that he “was of no assistance as he left when it became apparent that (your son) was heavily into ‘ice’”.[1] He went on to state that your son’s addiction to ice was traumatic for you and, as described in a report from the psychologist, Ms Carla Lechner,[2] “unknown people were coming to [you] in relation to [your son’s] drug debts and standing over [you], intimidating and threatening [you]. As a result [you] would pay them money. The money [you] paid was money [you] took from Encompass.”[3]
[1]Paragraph 12 of Defence sentencing submissions dated 19 February 2020
[2]Report dated 7 February 2020, Exhibit “1”
[3]Paragraph 14 of Defence submissions on sentence
15 Your explanation for this offending was that you were in a state of great stress and anxiety concerning your son’s drug use and, in desperation and not knowing how to help him, you stole the money. Mr Dounias stated that your son was not in a good way and you were struggling with his plight. As previously mentioned, you gave this same history to Ms Lechner. You told Ms Lechner that appeals to police for assistance were not responded to, apart from advice that you should seek counselling for your son, and that you lived in constant fear for the safety of yourself and your daughter. You stated that you were physically and verbally assaulted and threatened by these “debt collectors” and felt desperate and unable to think of an alternative solution.
16 In response to Mr Dounias’s submissions, I endeavoured to obtain some clarification of when it was that these “nefarious persons collecting debts for drug dealers had come to threaten you”. Your solicitor attended you in the dock and obtained instructions from you, following which Mr Dounias stated that it was “around mid-2014 – May or June”. When I pointed out that the first transaction of theft had taken place on 9 April 2014, Mr Dounias agreed that “it doesn’t add up” and I gave him an opportunity to clarify instructions from you. He then stated that your son had been asking you for money in 2013 when he was using cannabis but, by 2014, he had an ice addiction and you went from a situation of giving your son money to having to pay the debt collectors and “it may have been earlier that the drug debt collectors came.” When I commented that the narrative appeared to be shifting, Mr Dounias announced that you would give evidence on oath. I indicated that you were not compelled to do so, but he stated that you wished to do so.
17 You then gave evidence on oath, stating that probably from mid-2013 you were aware that your son was using cannabis. It took you a while to realise because you had not had any association with illicit drugs. At about this time, your son had been working in some “well known” bar or café or club. He commenced “keeping bad company and went from a young man who played soccer and had good values and, by late 2013, his character had changed, his behaviour deteriorated and was increasingly erratic and accompanied by making demands for money which [you] gave to him.” You stated that you knew that he was into drugs, but had no control over him, he would be away at night and lost weight. You stated that you even contacted Springvale Police in early 2014 because your son had broken down the door demanding money. You stated that a male police officer came to your home in early to mid-2014. You did not want charges laid. You just wanted to get him out of the trouble he was in. You said the police officer stated something like, “It is hard with drugs. See if you can get him to see a psychologist.” But you stated you could not control him and just get hold of him and say “Come to a psychologist.”
18 In the course of your evidence, you were weeping and giving shrugs of helplessness about the situation with which you were confronted and which you stated lead to your offending. You stated that, in February 2014, your partner, Rick, had made a proposal of marriage to you but he became intolerant of your son’s out of control behaviour, so he began to “just come and go” from the home and, ultimately, he left you altogether in early 2015.
19 You stated that you “kicked your son out” some time in 2015. This was after police had impounded a car which you had purchased for him around the time he turned 18 years of age. You stated that police had intercepted the car after some other person had been driving it at 240 kilometres per hour on a freeway. You stated that “We located an apartment for [my son] and he moved out but he didn’t get better, only worse, but ultimately stopped using drugs by the age of 20 or 21 and returned home some time in 2017 indicating that he would go into rehabilitation.”
20 You stated “If I had time I would have got a loan and looked at options but I had my son screaming every day ‘someone is going to kill me’”. You stated that you knew that you did not make the right judgment, but you had no other options. You stated that you are remorseful and regretful.
21 Under cross-examination, the prosecutor, Mr Roper, showed you Exhibit “D”.[4] This is a report from Springvale Police noting that, on 27 April 2015, you reported that your son’s behaviour had become increasingly erratic over the last two years. It is said to be the first reported incident by you to police. At approximately 3.30am, your son had arrived home from a night out with friends and was making a noise which woke you and your daughter up as he was trying to find his keys. You and he had a verbal dispute in relation to his attitude. Things calmed down and you and he each went to bed. However, at approximately 12.30pm you and he had another verbal dispute and you contacted police, believing your son might have a positive reaction to police attendance. Police attended, but your son had left your home by then. Police noted that you had set rules and expectations for your son to remain in the home, but were struggling to have him adhere to them. They recorded you as being positive to referrals to prevent future occurrences. It was noted, “Nil threats. Nil violence. Nil concerns for safety. Verbal only. Civil options explained [to you] should [your son’s] behaviour escalate.” The report also stated that the assessment of future risks was “unlikely” and risk management status was recorded as “completed”.
[4]Exhibit “D”, Police report created 27 April 2015 relating to incident on 27 April 2015.
22 When Mr Roper pointed out to you that this contact with police had been in April 2015, not 2014, you claimed that you had contacted police twice. You thought that the other time had been in 2014 when your son had been quite threatening, but as he then left, you cancelled the request for police to come to your home. You agreed that you had never mentioned anything to police about dubious characters asking for money and you stated that you thought that, if you did, then this would put your son at risk.
23 You stated that you thought that dubious characters had come to your home asking for money on three occasions. On the first occasion, a man on his own jumped over your front fence and grabbed you as you got out of the car and asked where your son was. He said your son owed him money, and he would kill him and you if he did not get it. You stated that you assumed that he was from the drug trade. You were very vague about when this had occurred and when you thought it had occurred in relation to the one time that police had attended your home. You stated that the police attendance may have been before “the gentleman” came or it could have been after that time. You stated, “We had trouble right, left and centre.”
24 You stated that, on the second occasion, “people came” and your life and that of your children were threatened. That could have been either before or after the occasion upon which you had cancelled your call asking for police to attend your home. You stated that, on one occasion, $6,000 was demanded of you. You thought that may have taken place before police came to your home in April 2014 (even though Exhibit “D” establishes that the only police attendance to your home was in April 2015). You stated that you had commenced giving money to your son in 2013 (although that related to his cannabis use, not ice). You could not say how much money you had given to your son overall. However, you stated that, on one occasion, you had given him money twice in the same day. You did not mention ever paying money direct to any debt collectors and gave no details, at all, of the alleged third occasion on which you say that a debt collector or debt collectors demanded money from you. You stated that you stopped paying money to your son in late 2016. You were unable to say for sure when you son had begun to use ice, but said it became obvious to you in late 2013 and he seemed to be in the grip of addiction to ice until either late 2016 or 2017.
25 Under cross-examination it emerged that, apart from you being employed by Encompass, your son who had the drug problem was also employed by Encompass from September 2014 until he left the company of his own accord on an unspecified date in 2015. He had been employed full time on an annual salary of $42,134 doing “admin work”. You claimed that you had not expected him to be paid, but he was, and you really had brought him to work in order to keep an eye on him. You claimed that Mr Aloi had hired him and when asked what your input into him being employed had been, you shrugged and stated that you had said to Mr Aloi, “If you think he could bring skill and support to the organisation, well okay.” You maintained that he was still using drugs whilst working for Encompass. You agreed that your partner, Rick Cristiani, was also employed by Encompass at a salary of $70,000 per annum. Mr Aloi had been looking for someone to help recruit doctors and you introduced Mr Cristiani to Mr Aloi because he had experience in that area. You thought that this employment had commenced approximately two months before you left your employment with Encompass.
26 It also emerged under cross-examination that you, Mr Cristiani, your daughter and your son had travelled to Greece on 15 July 2014 for a three week holiday. You stated that the trip had been planned for yourself, Mr Cristiani and your daughter in December 2013 or early 2014 and noted that when you left your employment at the AMA you received $20,000 by way of annual leave, as well as another $20,000 by way of your salary. Initially, you had thought your son would not be well enough to accompany you to Greece, but he did end up accompanying you and you agreed with the prosecutor that Exhibit “E” is a photograph posted on Instagram of yourself and your son on your Greek holiday. I found many of your answers in cross-examination to be evasive, but you ultimately conceded that your son, in the photograph, did not appear to be “completely underweight” in that photo, although you stated that he still accessed drugs in Greece. You also agreed that, in December 2014, you, Mr Cristiani, your son and your daughter had gone on a holiday to Bali for one week and that Exhibit “F” was a photograph of Mr Cristiani, your son and your daughter in Bali on that holiday. You claimed that your son had been out all night before and you all flew to Bali and nearly missed the plane. Further, you had taken another holiday to Bali for one week on your own in June 2015. Later, in September 2015, you travelled to Greece and Paris with your daughter on a holiday which lasted three weeks.
27 It also emerged in cross-examination that, just prior to your son’s eighteenth birthday (which was on 2 April 2014) you had purchased him a black Mercedes vehicle for an amount of $26,000. You stated that this was to mark the occasion of him getting his licence. You agreed that Exhibit “G” was a photograph of that vehicle. You stated that Mr Cristiani had had some experience with Mercedes vehicles and he found the vehicle for your son. You took out finance for the purchase price, but could not recall how much the repayments were. You claimed that the reason you purchased the car for your son, notwithstanding that he had been regularly taking drugs and demanding money from you, was that you thought it would be a car in which he could be safe. When asked by the prosecutor whether you thought it was appropriate for you to spend money on this car and the various holidays while stealing from your employer, you stated that what you did was wrong but you were not clear in your thoughts and had been battling 24 hours a day with your son’s erratic behaviour. You also agreed, in response to a question from myself, that you had arranged an apartment for your son to live in. This was in 2014 or 2015 at a time when he was working at Encompass. You stated that you ultimately sold the car in late 2014 or early 2015 after it had been impounded by police, as you could not control what your son was doing with it. You stated, at one stage, that your son was taking illicit drugs up until the age of 20 or 21 but, when he had returned home after living in the apartment, he began the process of staying away from associates and ice. You agreed that in late 2017 you assisted him to buy a café. You claimed that you had stopped giving him money for drugs in late 2016.
28 In re-examination you stated that you took your son on holidays and bought him a car to try to give him an opportunity to get away from the company he was keeping and with whom he was using illicit drugs. Also, you were concerned that you could not trust him to be left on his own. You stated you had not made the right decision but were under so much pressure. And as a mother you do the best you can to keep your son safe.
29 I must say that you did not impress me as being a careful and accurate historian when you gave your evidence. Nor did you impress me as being a witness of candour. It was left to the prosecution to elicit from you in cross-examination that the one occasion that police attended your home was in April 2015, over one year after you had commenced to steal from your employer on a regular monthly basis dating from 9 April 2014. It was also left to the prosecution to elicit from you that you had spent a considerable amount of money on overseas holidays and paying instalments on a car, which you had purchased for your son whilst systematically stealing from your employer. It beggars belief that any person should consider it appropriate to use what you described as your own money on holidays, whilst using money stolen from your employer to give to your son to buy illicit drugs.
30 The Court acknowledges the great distress that can be caused to a parent who has a child abusing illicit drugs. However, by the end of your evidence, I felt unclear as to the nature and extent of his problem, particularly as he did go on holidays to Greece and Bali with you and apparently managed to carry out work for which he was paid by your employer for a period of months from September 2014. You claim that you were not thinking clearly throughout the period of your offending. Whilst I accept that you were subject to a number of stressors, apparently including your drug-abusing son’s erratic behaviour and the decline in the relationship with your de facto partner, the fact is that you managed to continue full time in a well-paid and presumably demanding executive role with Encompass. Also, despite what your counsel told the Court and you told Carla Lechner by way of history, you did not give any evidence of direct payments to unknown persons collecting drug debts, as distinct from repeatedly giving in to your son when he requested money from you. Although I well understand that the behaviour of drug abusers can be aggressive and threatening, you appear to have rewarded your son’s bad behaviour by providing him, at age 18, with a car, assisting him to get employment with the victim company from whom you were stealing, and also taking him on holidays to Greece and Bali. As I commented during the plea hearing, if every parent of a drug addicted child were to deal with this difficult issue by stealing from his or her employer in order to fund the drug habit, then this would have a very adverse effect upon the state of our economy.
31 The report of Ms Lechner tendered as Exhibit “1” simply recites your history that, in response to unknown persons standing over you in relation to your son’s drug debts, you gave them funds as requested and used the money that you took from Encompass to pay those debts. Ms Lechner accepts your history that, after having been in “head hunted” by Encompass, your son fell into drug use and the offences occurred and your partner left the relationship, leaving you very much on your own to try and manage the situation. Although I am unclear as to the nature and extent of it, I accept that your son has had a substance abuse problem. This is confirmed in a character reference from your friend, Ms Flaskis.[5] However, I am not satisfied on the balance of probabilities that the crisis in your son’s drug use and the departure of your de facto partner from the family home and the threats from “unknown persons” relating to demands for drug debts all coincided prior in time to you commencing this offending on 9 April 2014. Further, the history given by you to Ms Lechner about the same man returning to demand money “a few times” did not accord with your evidence on oath, although you did mention a man who jumped over the fence and grabbed you and was threatening. Whilst this would certainly have been frightening, I cannot be satisfied on the basis of your sworn evidence that this occurred prior in time to you commencing to steal money from your employer.
[5]Exhibit “2”, Reference from Stella Flaskis, dated 12 February 2020.
32 Ms Lechner states that, as a consequence, you have developed symptoms of Post-Traumatic Stress Disorder, which she described as being of “moderate-severe” level of severity, which moderately impair your functioning. However, she noted that you, nevertheless, continue at the present time to work full time as a practice manager at a medical practice. She also considered on the basis of your self-report on the Kessler psychological distress scale and the Beck Depression Inventory, that you suffer symptoms of anxiety and depression in the severe or extreme range. She described you as presenting with symptoms of depression at a clinical level fulfilling the criteria of a diagnosis of Major Depressive Disorder pursuant to the DSM-5, in addition to your post-traumatic symptoms.
33 Ms Lechner stated that she strongly recommended that you seek assistance for your symptoms, but I here note that, notwithstanding that it is almost four years since your last episode of offending, you have not engaged in any therapy for your symptoms.
34 Overall, I was not impressed that Ms Lechner had an accurate and detailed history or that she engaged in careful analysis of the history which she did have. Certainly, she appears to be unaware of pertinent matters elicited in cross-examination of you by the prosecutor. Her conclusion that “(your) ability to problem-solve, make decisions and judgments appears to have been somewhat marred (my emphasis) by [your] level of high anxiety at the time of these offences”, in my view is insufficient to attract the principles of R v Verdins.[6] Your ability to problem solve and make decisions and judgments in a demanding executive job apparently was not impacted upon by any symptoms suffered by you at the time of offending. Moreover, the fact that your son abused drugs, that your partner ultimately left you and that you have been facing these very serious charges would, in my view, account, at least in part, for symptoms of depression, even though you may have some post-traumatic stress symptoms referable to the incident of some unknown person grabbing you and making threats which you described in your evidence. Nevertheless, I take the symptoms described by Ms Lechner into account as part of your personal circumstances. Ms Lechner states that, if you are given a term of imprisonment, this will impact upon your children and your financial security. As acknowledged by your counsel, unhappily these are common consequences of criminal offending and could in no way amount to exceptional circumstances militating against a sentence of incarceration if a Judge considered it to be appropriate. However, I do take into account that a term of imprisonment would be more onerous for you because of symptoms of anxiety, depression and Post-Traumatic Stress Disorder than for a person in normal psychological health. I also acknowledge that the welfare of your children and your future employment prospects and financial security are matters which are likely to weigh upon your mind if serving a custodial sentence.
[6](2007) 16 VR 269
35 Ms Koukouravas, in sentencing you I also take into account that you have had a background of some disadvantage, never having known your father and having had a largely absent mother. You did, of course, have the benefit of a loving grandmother who provided you with stability and you attended a very respectable school and were provided with a loving home, but I acknowledge that you did have an unsettling sense of being different while growing up without your parents being present. The law acknowledges that a background of disadvantage can give rise to long term effects of an adverse psychological nature and I have borne that in mind in weighing up the various factors in order to determine the appropriate sentence in your case. Nevertheless, you appear to have achieved at a relatively high level and made a career for yourself, having worked with a prestigious organisation like the AMA at an executive level for a lengthy period of time and commanded a salary of $180,000 per annum with your employer who is the victim of this offending.
36 You should be left in no doubt as to the impact of your offending upon the victim company, which was a family company, which spiralled downwards into liquidation after your offending.
37 Ms Johnson, in her Victim Impact Statement tendered as Exhibit “B”, spoke of her dashed hopes as she saw her business fail and of how she is haunted by your words, “I am the most loyal person you’ll ever meet”, when from very soon after you started your employment with her, you had been abusing your position of trust, instead of protecting the company’s interests. She is particularly distressed by the fact that you used her daughter, Jessica, who was your assistant, as a pawn when questions were raised about the business. You used her to convince Ms Johnson and her husband that they did not know what they were doing and everything would be alright. I here interpolate that you were the person who convinced Ms Johnson not to pursue Melbourne Pathology for outstanding debts on the basis that it had not experienced as large a return from the business at the practice as had been hoped and explained that you had, therefore, granted it “a reprieve.”[7]
[7]Paragraph 8 of Exhibit “A”
38 Ms Johnson speaks in her Victim Impact Statement of the diminution in lifestyle which she has suffered due to the loss of her business and the fact that her husband, who is nearing retirement age and should be able to start to wind back his workload, is now working longer and harder than ever. She described how distressing it was to have to make employees redundant and to go through the process of her company being placed in liquidation. Ms Johnson’s health has been affected in that she suffers an inability to trust people as well as anxiety, panic attacks and depression. Her treatment for these conditions is attested to by a letter from her long term general practitioner of some 20 years, who states that she had never previously suffered those sorts of stress issues.[8]
[8]Part of Exhibit “B”
39 A Victim Impact Statement was also tendered by Ms Johnson’s daughter, Jessica Aloi, (Exhibit “C”). She states that she regarded you as her mentor and friend and she admired you, but now realises that you had groomed and manipulated her to parrot a false narrative to reassure her parents. She states that she will never forgive herself for believing your lies over her parents’ concerns and this has impacted upon her capacity to trust people. She states that she also felt devastated and angry that they had to let a number of valued employees go from the position because of the financial impact of your offending.[9] She feels the loss of her own financial security due to your crimes and suffers ongoing stress and anxiety.
[9]The Court was told that, prior to Encompass being placed in liquidation in May 2019, it had had to terminate the employment of 2 full-time employees, 1 part time employee and 1 casual employee.
40 The sentiments expressed by Ms Johnson and Ms Aloi in their Victim Impact Statements are understandable and foreseeable consequences of your crimes. As previously mentioned, not only has the company gone into liquidation but some four employees lost their jobs because of the financial downturn in the company’s business. Although it is an important sentencing consideration that you repaid the sums that you had stolen by taking out a second mortgage on your home, this only occurred late last year, by which stage the company had been placed in liquidation. It did not include any interest and, obviously came well over five years after your systematic offending had begun and well over three years after it had ended.
41 In sentencing you, I take into account your pleas of guilty which were reasonably early pleas. They spared Ms Johnson, her daughter and a number of other witnesses having to give evidence. They have utilitarian benefit by saving the State the cost of a trial and facilitating the course of justice. Although your counsel submitted that your pleas of guilty and the fact that you had repaid the moneys should be regarded as indicators of remorse, I have reservations about how remorseful you actually are. When you gave evidence on oath, the overwhelming impression I gained was that you were self-pitying. Notwithstanding that you are apparently a well educated person who has held high executive positions, you stated that you could not think of anything else to do other than to pay vast sums of money to your son to buy drugs. No explanation has been given to the Court as to how he comes to be rehabilitated now and, in this regard, I note that he was sitting in Court during the plea hearing. He is now apparently well and, also, employed.
42 On the issue of remorse, I note that Ms Lechner’s report makes no mention of empathy with the victims but rather focusses upon the impact upon you and your children and your job and overall stability, particularly if you are incarcerated. Similarly, a reference from Mr James Kanterakis dated 3 February 2020 (Exhibit “4”), states that you are “very remorseful as it has had serious implications for her and her family (my emphasis).” Another reference from Dr Peter Karamoutsos (Exhibit “3”), who has known you professionally and personally for 12 years, states, “Her criminal charges are due to a work related matter where there was a significant misunderstanding. She appears to have sincere remorse and is apologetic for the incident.” It seems to be a significant misunderstanding that Dr Karamoutsos could characterise your deliberate systematic offending in this way.
43 Nevertheless, clearly you were a person of good character before this offending. Exhibit “2” is the previously mentioned letter from Ms Stella Flaskis who has known you for 20 years. She works in the pathology area and you met through work associations and became friends. She states that you were forced to leave your husband after the birth of your second child and have battled with no financial or emotional support to bring them up and endured many hardships, but with hard work and determination, have brought them up with good morals, values and integrity. She personally witnessed your son’s struggle with addiction to ice and his out of control behaviour, demanding money to pay debts for his safety, which would send you into a state of panic and, on one occasion, she paid him $3,000 whilst you were interstate. She described your son’s life as having unravelled and that you would drive around for hours on end looking for him. She stated that you “did everything within [your] power to assist him to break free of this horrid addiction and today [he] is totally rehabilitated.” (I here interpolate that this has apparently happened in recent times and I reiterate that the means whereby this became possible, both financially and practically, has not been the subject of material before the Court.) Ms Flaskis states that she believes that this sort offending will never be repeated and she still trusts you and supports you.
44 The previously mentioned references from Mr Kanterakis and Dr Karamoutsos speak also of having found you to be hardworking and honest and devoted to your children. It is very sad that such a person should be before the Court for this offending, but it is also very sad to contemplate the adverse financial and psychological impact upon Ms Johnson and her family and other employees. Apart from anything else, Ms Johnson has had to spend an exhausting amount of time going through accounts, assisting police with their investigation, generally, and by making statements, and engaging in an ongoing process with the liquidator for her company.
45 You come before the Court with no prior or subsequent history. You have pleaded guilty to the offences, for which you are entitled to a meaningful discount on the sentence which otherwise would have been imposed. However, I nonetheless have come to the conclusion that the objective gravity of your offending over a period of one year and 10 months, with systematic monthly thefts from your employer in excess of $9,000 per month is such that the only appropriate sentence is one which involves some immediate custodial component. The breach of trust by you when you were in a position to control the finances and use Ms Johnson’s daughter as a conduit for your lies is very grave. The offending only came to an end after you had ceased to work for the company. Although I accept that, in part, the money has gone to giving sums to your son to feed his drug habit and having a drug-addicted son is a highly unenviable situation for any parent, the precise amounts that you paid for this purpose remain unclear. You have shown scant regard for your employer and exercised very poor judgment.
46 The Court must denounce your conduct and place emphasis upon general deterrence so that others who are minded to steal from their employer for whatever private purpose, will know that they will meet with just punishment. In view of the fact that your offending comprises some 25 individual acts of theft, albeit rolled up into two charges, there must also be some emphasis upon specific deterrence, although I accept that the fact that you have not reoffended in the past for almost four years makes the emphasis upon this less than might otherwise be the case. This factor, your good work history, your pleas of guilty, and the repayment of the total sum stolen indicate that your prospects of rehabilitation are probably reasonable, albeit that it is of concern that you have done nothing to address the mental health issues referred to in Ms Lechner’s report.
47 A sentence of imprisonment is a sentence of last resort. As I have stated, after weighing up all the competing matters, I have determined that there must be a sentence which includes an immediate custodial component. However, I have concluded that the various relevant sentencing objectives can be met by imposing a combination sentence with a relatively short custodial component in combination with a Community Correction Order. You have been assessed and found suitable for a Community Correction Order (Exhibit “H”). This will enable you to give back to the community by performing some unpaid community work, as well as hopefully addressing your psychological concerns.
48 Would you stand up, please.
49 On Charges 1 and 2, you are convicted and sentenced to an aggregate sentence of 4 months’ imprisonment together with a Community Correction Order for a period of 2 years.
The following are the core terms of the Community Correction Order: You must not commit, whether in or outside Victoria during the period of the Order, an offence punishable by imprisonment; You must comply with any obligation or requirement prescribed by the Regulations; You must report to and receive visits from your Community Corrections Officer; You must report to your nearest Community Correction office within two working days after the commencement of the order, which will be upon your release from custody. You must report to your Community Correction Office any change of address or workplace within two clear working days of such change; You must not leave the State of Victoria without prior permission from Community Corrections officers.
In addition, the following special conditions apply:
a) You must perform 150 hours of unpaid community work;
b) You must engage in assessment and treatment for mental health conditions.
50 You also need to be aware that, should you breach the Community Correction Order by non-compliance and/or further offending, that offence in itself carries a maximum penalty of 3 months’ imprisonment. Should that occur, it is highly likely that you will be brought back before the Court for contravention of the order and you may well end up having the order cancelled and being re-sentenced to a further term of imprisonment.
51 Ms Koukouravas, I am unable to make a Community Correction Order unless you agree to it. Do you understand those terms and conditions and agree to the making of such an Order?
52 PRISONER: I do, Your Honour.
53 HER HONOUR: Pursuant to s6AAA of the Sentencing Act, I state that had it not been for your pleas of guilty, the total effective sentence imposed this day would have been 3 years’ imprisonment with a non-parole period of 2 years.
54 I will note as custody management issues that this is your first time in custody with no history of prior or subsequent offending, and that you have been diagnosed with a Major Depressive Disorder and symptoms of Post-Traumatic Stress Disorder.
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