Director of Public Prosecutions v Kulik (a pseudonym)
[2025] VCC 564
•7 May 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HECTOR KULIK (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE MANOVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 November 2023, 7 & 20 June 2024, 26 September 2024, 19 December 2024, 7 March 2025 and 7 May 2025 | |
DATE OF SENTENCE: | 7 May 2025 | |
CASE MAY BE CITED AS: | DPP v Kulik (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 564 | |
REASONS FOR SENTENCE
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Subject:Plea - sentencing
Catchwords: Theft in employment position of trust, offending over five years, psychiatric and neuro-degenerative disorders diagnosed post offending, significantly impaired level of functioning, significant risk of deterioration in prison, early plea of guilty, good rehabilitation prospects
Legislation Cited:
Cases Cited:Boulton v The Queen [2014] VSCA 342, R v Verdins[2007] VSCA 62, Bugmy v The Queen[2013] HCA 37; (2013) 249 CLR 571;
DPP v Moore [2009] VSCA 264, R v Grossi [2008] VSCA 51Sentence:3-year Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Pickering | Office of Public Prosecutions |
| For the Accused | Mr F. Bloemen | Stary Norton Halphen |
HER HONOUR:
Introduction
1Hector Kulik,[1] you have pleaded guilty to five rolled up charges of theft, contrary to s74 of the Crimes Act 1958. The maximum penalty for each charge is 10 years' imprisonment.
[1] A pseudonym.
2You committed the offences between 25 May 2017 and 25 February 2021 in the course of your employment with Commtel Network Solutions.
3The total amount of the theft is $1,133,895.21.
4The prosecution opening, with which your counsel agreed on your behalf, sets out in detail the manner in which the offences were committed. I will set out some matters briefly below.
Circumstances of Offending
5You commenced employment with Commtel in October 2006 as an IT manager. Your duties included obtaining quotations and placing orders for the purchase of telecommunications equipment by Commtel.
6From approximately May 2017 you began ordering computers and mobile phones from companies such as Telstra to be delivered to your home. Commtel paid for the items which you then sold on the internet, keeping the proceeds for yourself.
7Your offending was discovered when your employer engaged another employee to take over the role of purchasing hardware. You were opposed to this restructure and made attempts to convince your superiors to abandon these plans.
8On 21 March 2021, you attended the office of your superior and informed him that you had stolen from the business for seven years by purchasing laptops and phones using false invoices and selling them on Gumtree. Your employer sent you home to allow for an investigation to take place. There were concerns held by your employer about your mental health and you were ultimately suspended from your employment.
9You cooperated with an investigation during which you confessed to manipulating purchase orders and other documents to conceal your activities for seven or eight years, a period longer than that ultimately charged.
10The available records confirmed that you had been purchasing items using Commtel funds for your own benefit since 2017. The matter was reported to police in April 2021. Investigations showed you had made 292 separate orders purchasing mobile phones, gaming accessories, laptops and software licences from overseas suppliers for use in Commtel laptops.
11On 14 June 2022 a filing hearing was held at the Magistrates Court. On 28 April 2023 you consented to be committed to this court by straight hand-up brief and entered a plea of guilty.
12The matter was first listed before me on 2 November 2023. A number of plea hearings have been conducted since to enable your counsel to obtain medical and other reports on your behalf.
Personal Circumstances
13You are almost 58 years old.
14You are currently on a disability support pension, living in a rooming house and receiving substantial support from your son for your day-to-day functioning.[2]
[2] Exhibit 17 Forensicare report dated 16 September 2024 at [43] to [48]
15You were born in the Soviet Union in June 1967, the youngest of three children. Your father worked as a manager and your mother as an agronomist. Your parents abused alcohol, and you were the victim of violence and sexual abuse in the home.
16At age 15 you left school to join the Soviet Navy. You have worked on the surface-to-air missile program and later studied to work with computers.
17You married in 1997 and have one son who has been present during your hearings and has assisted you during the court process.
18You moved to Israel in 1998 where you worked in IT. You moved to Australia in 2004, learned English and worked in a variety of employments, including as a packer in a warehouse and a pizza delivery driver, before commencing work in the subject employment.
19You have provided a history of nearly drowning at Lake Eildon in 2015 when your vehicle slid into the water from the edge of the lake. You consider you were saved by shadows which had followed you since your childhood.[3]
[3] Exhibit 17 Forensicare Psychiatric Report 16 September 2024 at [43] – [48]
20In April 2021, during the investigation into your offending, you had your first admission to a psychiatric facility. The discharge summary suggests you were admitted for 14 days. You presented with complex post-traumatic stress disorder, ongoing psychosis or possible early dementia, with ideas that you had special powers to heal women during sex. You had suicidal ideation, deteriorating memory due to a past syphilis diagnosis and you responded well to antipsychotic medication.[4]
[4] Exhibit 2 Discharge Summary dated 14 April 2021
21Your counsel tendered a copy of your passport. The passport was issued in June 2017, not long after your offending commenced. Your counsel submitted the photograph on the passport when compared to your current appearance demonstrates the extent of evident substantial change in your appearance since the passport photograph was taken.[5] I accept those submissions: they give credence to the existence of a genuine condition affecting your entire being.
[5] Exhibit 3 Passport issued 24 July 2017 with expiry 24 July 2027
22In May 2021, during the investigation into your offending, psychiatrist Dr Anjith Divakaran reported receiving a history from you that you had been subjected to sexualised behaviour and contact in a family context from the age of five. You reported that from the age of 18 you began seeing giant talking red jellyfish but Dr Divakaran considered that your psychosis was such that you were unable to provide a reliable history of your past psychiatric symptoms. [6]
[6] Exhibit 9 Report of Dr Divakaran dated 28 May 2021
23I accept that at the time that you were assessed by Dr Divakaran you were presenting with symptoms which the doctor considered were consistent with psychosis and also with personality features consistent with autism spectrum disorder.
24At the time of assessment, the doctor observed you were poorly kempt, emotionally labile, and at risk of erratic behaviour and death by misadventure. Bipolar affective disorder and post-traumatic stress disorder were diagnosed with a provisional diagnosis of neuro-syphilis on the background of autism traits.
25In February 2022, your treating doctor referred you to a clinic for investigation and treatment of right-hand tremor, paucity of movement and monotonous speech. He described your circumstances in 2021, at the time the offences were discovered, as 'an acute psychotic break' on the background of long-standing low grade systematised psychosis involving belief in power to heal through sexual activity, and seeing shadows. You had commenced visiting prostitutes in the context of this psychosis. You had been spending all your 'spare money' on this activity. Your treatment at the psychiatric facility had been voluntary and you had complied with antipsychotic and antidepressant medication. Your doctor confirmed positive Treponema antibodies which suggested a previous syphilis infection.[7]
[7] Exhibit 4 Referral letter from Dr Ashraf Ebrahim dated 22 February 2022
26From March to August 2023, you were commenced on Levodopa/Carbidopa for Parkinsonian tremors and a shuffling gait. The consultant psychiatrist reported that your presentation was somewhat unusual but considered you may have frontal lobe or normal pressure hydrocephalus. He also considered multi-system failure or Lewy body dementia as possible diagnoses for your condition. He noted you were continuing to see the shadows and reported that he was treating you for psychotic depression.[8]
[8] Exhibit 8 Bundle of reports from psychiatrist Dr Tom Eimany
27On 31 October 2023, neurologist Dr Peju-Dumbrava reported that at the time of assessment you likely had an asymmetric extrapyramidal syndrome with a differential diagnosis or Parkinsons disease, either drug-induced or idiopathic. The report described you as having complex neurological and psychiatric disabilities likely to be adversely affected by lack of specialist treatment.[9]
[9] Exhibit 10 - Report of Dr Laura Perju-Dumbrava dated 31 October 2023
28Your lawyers tendered a report prepared by psychiatrist Associate Professor Danny Sullivan.[10] The report outlines a history of physical and emotional abuse you suffered at home due to your father’s alcoholism. Despite these matters you were able to complete studies in a naval college and work in the Soviet surface-to-air missile program.
[10] Exhibit 11 Report of Associate Professor Danny Sullivan dated 31 October 2023
29Until the commission of these offences you appear to have managed to live a law- abiding life, have a family and live abroad without evidence of any substantial psychiatric problem affecting your ability to work or live your life.
30Associate Professor Sullivan considered a range of medical and other documents, the history you provided and the discharge summary from the psychiatric facility, and reported to the court that you present a significant diagnostic complexity. Your childhood and early adult history were plausible explanations for post-traumatic stress disorder. The explanation you provided as a motive for the offending – a need to visit prostitutes because of a belief that you could heal them through sexual activity - was also considered plausible in the context of psychotic delusions, although the professor noted that funds had also been expended on family support and shares.
31In the event of incarceration, Associate Professor Sullivan considered you could potentially be admitted to Thomas Embling Hospital for investigation or transferred to St Augustine’s Unit where full neurological assessment and investigations are available. However, Associate Professor Sullivan considered this was very difficult to organise.
32Significant to the sentencing task, Associate Professor Sullivan said in his report:[11]
“Incarceration will clearly weigh more heavily upon Mr [Kulik] due to his physical and mental health disorders. it is difficult to see him managing in a mainstream general prison location. He will require significant medical services in prison and it is likely that he will need to remain at a metropolitan prison to receive these. His mental state would deteriorate due to rigid regimens which would not easily accommodate his impaired mobility, inability to wear shoes, and poor self-care. In addition, Mr [Kulik] would be highly vulnerable to assault and predation by other prisoners.
“On the information available, I cannot confirm prognosis, but to say that Mr [Kulik] is severely impaired in adaptive functioning.
“In the event of incarceration, Mr [Kulik] will require medical and psychiatric assessment and support, as well as a intervention. He is at risk of complicated withdrawal from alcohol.
“For any disposition in the community, including parole or a Community Corrections Order (CCO), he should [be] assessed for targeted alcohol intervention, and receive monitoring and support to reduce the likelihood of further problematic substance use. “
[11] Ibid at [81] to [84]
33On 24 March 2024, neuropsychologist Martin Jackson prepared a report for the court.[12] Mr Jackson conducted a series of tests and reported that you had a full scale IQ of 69 and a WAIS-4 perceptual reasoning score of 69, both of which were well below your previously expected level of function. Your working memory index and your ability to perform mental arithmetic were also both extremely low. Mr Jackson noted you were continuing to experience auditory hallucinations and delusions and presented in a highly volatile mood. Clinical testing also revealed extremely severe depression, anxiety and moderate stress.
[12] Exhibit 12 Report of Martin Jackson dated 24 March 2024
34Mr Jackson reported that despite your complex history of trauma in childhood, including being exposed to alcoholism and sexual abuse, you did not present to psychiatric services until these offences had been discovered. He considered the testing revealed that your true level of function was in fact far worse than your presentation suggested.
35Mr Jackson reported that a neuro-degenerative disorder such as dementia was the most likely diagnosis applicable to you. In recent years you had experienced a significant deterioration in functioning. The prognosis was for deterioration and worsening of your condition and level of function over time.
36If you were to be incarcerated, Mr Jackson considered you would be unable to cope in a mainstream prison. He recommended you be housed in a medical unit where your condition can be monitored. You have no capacity to learn or comply with prison routines and require significant assistance from others to assist with memory and basic daily functioning such as personal hygiene. Your level of physical impairment is such as to place you at risk of significant harm from other prisoners. In the event of community disposition, Mr Jackson considered you require supported accommodation in a hostel-type setting with support and assistance for personal and domestic activities of daily living.[13]
[13] Ibid.
37On 11 May 2024, Professor Velakoulis, neurologist, reported to your lawyers. Based on the history from you and your son, medical reports and clinical examination, Professor Velakoulis diagnosed Parkinsons disease characterised by asymmetric right-sided resting tremor, shuffling or stooped gait, mask-like fasciitis, impaired olfaction, postural dizziness and significant cognitive impairment. In the last five to six years your level of function has significantly deteriorated in line with the numerous psychiatric and other disorders affecting you.[14]
[14] Exhibit 16 - Neuropsychiatric report of Professor Velakoulis dated 11 May 2024
38On 16 September 2024, a Forensicare report was prepared for the court by psychiatrist Dr Shakira Kumar.[15]
[15] Exhibit 17 Psychiatric report of Dr Shakira Kumar dated 16 September 2024
39Dr Kumar noted a number of current circumstances relevant to any disposition I make. These included:
(a) Urinary incontinence;
(b) Inability to care for yourself including showering and dressing;
(c) Disorientation when you leave your home;
(d) Feeling miserable, suicidal and a burden to your son;
(e) A notable right-hand tremor, struggling to write or complete forms, inability to grasp a pen;
(f) Poor eye contact with a masked face and little reactivity;
(g) Numerous past psychiatric diagnoses including psychosis, complex PTSD, psychotic depression, bipolar affective disorder, possible obsessive compulsive disorder and autism spectrum disorder traits;
(h) Current working diagnosis of Parkinson’s disease, perceptual disturbance treated by antipsychotic medication and a likely diagnosis of psychotic disorder.
40Of significance to the sentencing task is the opinion of Dr Kumar that:
“At the time of the offending, Mr [Kulik] described an exacerbation of psychotic symptoms in the form of increased delusional beliefs about needing to obtain extra energy for a mission via sexual intercourse with prostitutes until they reached orgasm. He said that after exhausting his personal savings, he began to utilise funds obtained from his workplace to fund these activities. I note that previous information indicates he also used some of these funds to support his sister, though he denied this during his interview with me.
“It is my opinion that Mr [Kulik’s] mental illness, namely psychosis, was, in part, causally associated with his offending behaviour. His delusional beliefs appear to be part of the motivation for his offending behaviour and would have impacted his judgement and ability to make calm and rational choices. He appears to have been aware of the wrongfulness of his conduct, hence eventually confessing to his employer.
“Due to Mr [Kulik’s] physical and mental health needs, it is likely that incarceration will weigh more heavily on him. Based on his presentation at interview, and the recent longitudinal trajectory indicating a progressive cognitive and functional decline, it is likely that his condition will continue to deteriorate. He will struggle with the rigid routine and environmental stressors in prison, causing a deterioration to his mental state. His physical state and poor ability to care for himself will also make him vulnerable to other prisoners. He would need to be placed in a medical unit, rather than mainstream prison, to address his medical needs.
“Mr [Kulik] requires ongoing specialist medical and psychiatric services in prison, as well as allied health input. Such services may only be available in certain prisons and may involve waitlists to access the necessary care.
…
“Based on his presentation at interview, Mr [Kulik] did not meet the criteria for a Secure Treatment Order under the Mental Health and Wellbeing Act 2022.
“… I also recommend that he be assessed for increased community supports, such as supported living arrangements or increased supports in the home. He may be eligible for the National Disability Insurance Scheme (NDIS), and an application may be supported by his medical team.” [16]
[16] Ibid at [78] to [85]
41Mr Kulik, since you first entered your plea before me you have undergone extensive investigation in an attempt to arrive at a definitive diagnosis. This includes the following which were placed in evidence before the court:
(a) MRI spinal column dated 27 April 2023.[17]
[17] Exhibit 5 MRI Spinal Column dated 27 April 2023
(b) Discharge documents in relation to an admission between November and December 2024 to the Royal Melbourne Hospital for diagnostic assessment of young onset dementia.[18] The discharge summary suggests you were then unable to receive proper medical treatment for your neurocognitive and functional decline due to adverse effects of that treatment. Brexpiprasole and low dose Quetiapine were being provided with some initial improvement in psychiatric symptoms.[19]
(c) Moderate to severe Parkinson’s disease was confirmed with both motor and non-motor signs, severe tremor on the right more than the left and impacts on gaze, gait and balance. The report suggests that proper treatment for Parkinson’s in your case can only commence after your psychiatric condition has been stabilised with something like Clozapine, and a trial of this drug was recommended. However, it appears that due to your heart condition the Clozapine trial is contra-indicated.
(d) Dementia was also a differential diagnosis, but this has not yet been definitively confirmed.
(e) On mental status examination you were observed to have tremors, a blunted effect, inability to accept the diagnosis of schizophrenia but willing to continue recommended medications.
(f) An occupational assessment was conducted on admission. While you were observed to be able to shower and dress independently, you required assistance with setting up towels and clothing. You were showering very infrequently and reported kneeling in the shower to manage the task. The therapist reported the following matters:
(i)you presented with right upper limb dystonia, limited use of your right hand, and 'occupational performance limitations due to the physical impairments caused by Parkinson’s disease',
(ii)cognitive testing revealed you scoring with low marks, the cause of which was uncertain but possibly attributable to your Parkinson’s disease and mobility difficulties;[20]
(iii)you were assessed as being a high risk of falls and have sustained multiple falls at home prior to admission in November to December 2024;
(iv)you no longer drive but are able to use public transport with assistance from your son.
[18] Exhibit 20 Letter dated 17 December 2024 from neuropsychiatry registrar at RMH
[19]Exhibit 22 - Discharge summary from neuropsychiatry centre at RMH
[20]Ibid
(g) Cerebrospinal fluid assays for Alzheimer’s disease were obtained on 28 November 2024 and were negative for Alzheimer's; however, revealed 'slightly elevated neurofilament light chain, a research marker for neuronal injury elevated in people with neurodegenerative illness or dementia'.
(h) The medical impression in the documents is that you require a comprehensive medical workup to help with characterisation and treatment of your cognitive and functional deficits.
(i) An x-ray dated 21 March 2025 was tendered confirming the presence of a pulmonary embolism with a direction for ongoing management by your doctor.[21]
[21]Exhibit 25. CT Pulmonary Angiogram 21 March 2025
42Your counsel submitted that the evidence from the Royal Melbourne Hospital suggests that your current medical regime has not been clearly established or stabilised and you require additional investigation and treatment. I accept that submission.
43Ms Jacqui Ashmore from the Office of Corrections gave evidence on your plea. Ms Ashmore recognised that your health difficulties were substantial but assured the court that it was possible to safely house you in custody.
44In particular, Ms Ashmore said that all the medications you require can be dispensed to you, that your needs would be assessed and accommodated in order of priority and, significantly, that you could be housed in a medical unit with access to the necessary medical treatment subject to the recommendations of your current treating specialists.
45Mobility aides could be provided to you if necessary. However, Ms Ashmore considered your inability to wear shoes may not be accommodated. I consider this would pose an additional burden on you and I have taken it into account in imposing sentence.
46Also of significance to my task is Ms Ashmore’s evidence that while the early stages of dementia are able to be easily managed, the later stages pose a more significant challenge for prison authorities. I take into account the evidence from a number of experts that you may potentially suffer a deterioration of your symptoms in a custodial setting.
47I also take into account Ms Ashmore’s evidence that the prison system can engage in discharge planning, possibly together with the NDIS, and consideration would be given to whether, based on your medical needs, a hospital or rehabilitation facility is the more appropriate release destination for you.
48However, I am concerned that while medications can be dispensed, it appears that the prison has limited facilities in which to adequately investigate your treatment needs and this is something which remains outstanding as at the date of this sentence.
49I am also concerned that your condition has significantly impaired your cognitive abilities. Martin Jackson described you as once high-functioning and now suffering from poor memory, poor concentration and unable to engage in problem-solving and complex tasks. You now have a full-scale IQ and memory index in the extremely low range. These matters cause me to have concern about your ability to advocate for yourself in a custodial setting.
50If medical treatment and attention is not readily available to you, I consider you are at risk of spending substantial periods in prison isolation and suffering significant deterioration of your already low level of functioning.
51In February this year you fell at home and broke five ribs. Photographs of your injuries and an x-ray confirming the fractures were tendered in evidence. I am told that you suffer the complicating features of the pulmonary embolism for which you are being medicated with anticoagulant medication. The extended pre-sentence report notes that this also causes you to fear falls and injuries which might cause blood clotting and other serious health complications for you.
52The extended pre-sentence report was provided in April this year. It speaks of the extra-curial punishment which has been occasioned on you on account of the offending together with your poor health. You told the writer that you have lost everything and you are now living in a rooming house with no prospect of ever gaining employment. You are on a disability support pension which offers you bare subsistence. You describe living a miserable existence with no future, circumstances which you never envisaged for yourself, now a man in his late 50s.
Sentencing Considerations
53The Sentencing Act 1991 provides that the only purposes for which sentencing may be imposed are just punishment, general and specific deterrence, rehabilitation, denunciation by the court of the offending conduct and protection of the community.
54In passing sentence, the court must have regard to a range of matters including current sentencing practice, the nature and gravity of the offence, the offender’s culpability and degree of responsibility for the offence, the impact of the offence on any victim, the personal circumstances of any victim, the loss resulting directly from the offence, whether the offender pleaded guilty and the stage at which that occurred, the offender’s previous character and the presence of any aggravating or mitigating factors.
The nature and gravity of the offence
55The maximum penalty for theft is 10 years’ imprisonment. Theft is a dishonesty offence which can cover a wide range of conduct. The amount stolen by you is substantial. I accept the prosecutor’s submission that the offending was a gross breach of trust over a significant period of time - some five years. It involved some 292 transactions and an attempt by you to deflect the attention of your employer before you eventually admitted what you had done. You have made no restitution.
56I have received no victim impact statement, but I am satisfied that a theft of this magnitude has a significant negative impact on a business’s finances and their ability to trust future employees.
Current sentencing practice
57I have had regard to current sentencing practice. This type of offending is very serious and ordinarily attracts significant terms of imprisonment. White collar crime is difficult to detect, often because of the position of trust held by the offender in their employment. In your case, that trust is what allowed you to steal such a significant sum of money over a five-year period. You used your knowledge of your employer’s system to commit crimes upon the very people paying you to administer that system.
58Current sentencing practice, however, is only one of the many sentencing factors to which I must have regard in imposing sentence. No two cases are exactly alike: there are always differences in the offending behaviour, the motivations for it and the personal circumstances of the offender.
59My task is to sentence you for the crime you have committed in your unique circumstances. I consider the significant psychiatric and physical decline evidenced in the numerous reports, the significant change in your physical appearance, the substantial change of circumstances and the extremely poor prognoses for your medical conditions to be factors which necessitate significant amelioration of your sentence.
Moral Culpability
60The prosecutor submitted there was no evidence that your psychiatric condition was operative at the time or causally related to your offending and that the court must not speculate as to what might have been the cause.
61While there is no contemporaneous objective evidence confirming the existence of the psychotic phenomena, that is not the end of the matter. A large number of medical and forensic experts have provided opinions in your case and accepted the history of long-standing psychotic symptoms which acted as a motivating feature. This is evidence upon which the court can rely to make findings, without speculation.
62Dr Kumar accepts that the likely lifelong psychotic symptomatology was in part causally related to the offending as it provided the motive and the impaired judgement. Associate Professor Sullivan provided a similar opinion. I accept the opinions of Dr Kumar and Associate Professor Sullivan. I consider these matters had a causative effect upon an otherwise law-abiding, high functioning individual to engage in long-term deception and theft, that was otherwise out of character.
63The extended pre-sentence report was prepared at the request of the court and provided on 16 April 2025. That report contains a detailed account of the matters relating to the motivation for the offending and your insight into what has contributed to it. It appears broadly consistent with the accounts provided by you to a range of other medical and forensic doctors. It links your psychotic delusions to your need to fund visits to sex workers which formed an addiction, which addiction appears to stem from or be related to your childhood sexual abuse.
64You demonstrated insight to the report writer into the factors which contributed to your offending.
65I accept the submission made on your behalf that your penalty ought to be ameliorated on account of the childhood deprivation you experienced growing up in the Soviet Union: a child in a violent and alcoholic family in which you experienced physical and sexual abuse from a young age. I consider there ought to be a reduction in your moral culpability[22] on account of the contribution made by these matters to the subsequent development of psychotic symptoms linked in part and in content to that sexual abuse.
[22]Bugmy v The Queen [2013] HCA 37 at [44] to [48]
General and Specific Deterrence
66The Court of Appeal has consistently said that general deterrence must be a prominent feature of the sentencing consideration in offences of this type. For persons contemplating stealing in a corporate setting and in a position of trust, a sentence which requires an offender to spend a substantial term in actual custody is considered necessary. In part such a sentence acts as a deterrent to others who might be minded to commit similar offending. It also serves as adequate punishment. Both are in the interests of the community as a whole.
67I accept the prosecutor’s submission that in white collar crime, general deterrence is usually a paramount consideration. However, where an offender is suffering from a psychiatric condition, childhood abuse and deprivation, general deterrence can be moderated or eliminated depending upon the nature of the symptoms, the effect of the condition and the deprivation on the mental capacity of the offender, whether at the time of offending or of sentence or both.
68I consider that the evidence before me supports a finding that your moral culpability is substantially reduced such that you are not an appropriate vehicle for general deterrence.
69This is because of the effect of the conditions on your capacity at the time of offending and at the time of sentence. I consider the impact of your childhood sexual abuse on the reasons for the offending and the developing psychiatric condition at the time of offending. Your very significant deterioration in cognitive and physical function at the time of sentence are also relevant to modifying general deterrence. The neuro-degenerative condition and Parkinson’s disease, with their grim prognoses, add to this assessment. Martin Jackson and Professor Velakoulis both predict significant motor and cognitive and executive function decline in the future on account of these conditions.
70These principles also apply to the modification of specific deterrence.
71You have no prior or subsequent offending history. I accept the submissions made on your behalf that your peculiar health and personal circumstances make it extremely unlikely you will ever re-offend in the same or similar manner. This is also supported by the finding of low risk of re-offending assessed by the Office of Corrections.[23]
[23] Extended Pre-Sentence Report dated 16 April 2025
Impact of condition on the type of sentence to be imposed
72The evidence before me overwhelmingly supports a conclusion that the combination of your psychiatric and medical conditions will make prison extremely burdensome for you, much more so than for a prisoner in normal health.
73There is also cogent evidence from Associate Professor Sullivan and Dr Kumar of a serious risk that your mental and physical health would be adversely affected by a term of imprisonment. This evidence allows for substantial mitigation of your punishment.
74The discharge summary from your recent admission to the Royal Melbourne Hospital suggests your medication regime in respect of the Parkinson’s disease and psychotic disorder has not been properly finalised and requires additional work up and investigation. This is difficult, if not impossible, in a custodial setting.
Delay
75The delay of over three years between the time the offences were charged and the time of sentence also supports amelioration of your penalty.
76No further offences have been committed in that time, and I consider offending of this type is unlikely to be repeated. You have also contributed to your rehabilitation by addressing your health issues and gaining insight into the motivations of your offending.
77Whilst the delay was in part necessitated by the need to obtain evidence about your circumstances, I consider it is through no fault of yours.
78The delay has also meant the uncertainty of the eventual sentencing outcome weighed heavily on your mind.
79Significant leniency has been extended in the sentence on account of this delay.
Prospects of rehabilitation
80I accept the submissions made on your behalf that your prospects of rehabilitation are positive. You have demonstrated remorse by cooperating with your employer and with police, you have entered an early plea of guilty and you have not committed other offences.
Consideration of Sentencing Options
81I have considered whether to make a court secure treatment order under Part 5 of the Sentencing Act. Had Dr Kumar considered you suitable, this might have been an appropriate sentencing option. It is most unfortunate that a person with such significant and psychiatric health conditions as you have is not suitable to be confined in a hospital setting.
82I take into account the opinion of Associate Professor Sullivan that you require full neurological assessment, investigations and significant medical services, all of which are very difficult to organise in a prison setting.
83Your counsel ultimately submitted that based on the totality of your medical and personal circumstances, you ought to be released on a community correction order without being required to serve a term of imprisonment, and preferably without being required to perform community work.
84Your counsel relied on the following principles from Boulton v The Queen:[24]
(a) Parliament’s express purpose is that a community correction order can be used for a wide range of offending;
(b) A CCO has punitive elements which materially infringe on an offender’s liberty. These include the following matters which the court has described as significant burdens on the offender and creating a powerful deterrent effect:
(i)reporting obligations and submission to visits from the Secretary, the requirement to notify of changes of address or employment, the requirement not to leave Victoria without the permission of the Secretary, and the requirement to comply with directions from the Secretary;
(ii)Contravention of any condition of a CCO is an offence in itself punishable by imprisonment and carrying with it the prospect that the offender will be re-sentenced on the original offences;
(iii)The power to attach coercive and intrusive conditions for treatment and rehabilitation including treatment in a hospital or facility setting.[25]
[24]Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342
[25]Ibid at [91]
I underscore that the Court of Appeal considered these were punitive elements.
(c) A CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (including violent or sexual offending). A sentencing judge may find that in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment while affording the best prospects of rehabilitation.[26]
[26]Ibid at [131] to [135]
85The prosecutor submitted that any such order would not satisfy the requirement for just punishment as you would not be in a position to perform any community work. In particular, the prosecutor submitted the current extended pre-sentence report did not confirm for the court whether you could perform community work or not. Given the large volume of material suggesting your capacity is very significantly impaired and limited, it appears to be futile to order a community work condition in circumstances in which, the prosecutor said, it is inevitable that an application would ultimately be made for the order to be varied removing such a condition. That was a sensible and pragmatic submission by the prosecutor.
86The prosecutor also submitted that in circumstances where the offender is unable to perform what the prosecutor termed as the punitive aspect of the order, namely unpaid community work, just punishment demands a term of imprisonment. That is a very attractive and appropriate submission which I accept as applicable in the vast majority of cases.
87However, I must also take into account that the Court of Appeal has made it clear that the various reporting, supervision and treatment obligations of an offender under a CCO are punitive in themselves and pose significant burdens on an offender. I consider that in your case, given your cognitive difficulties, such conditions will be extremely onerous and significantly more burdensome on you than an offender without your medical problems. In addition, the prospect of breach of the order and re-sentencing you potentially to a term of imprisonment will mean that the order will be hanging over your head for a significant period of time.
88I have given considerable thought to whether a CCO ought to be combined with a term of imprisonment.
89The offence is serious. It was committed over a significant period of time during which you had the opportunity to desist, to seek help for your psychiatric symptoms and to ameliorate or lessen the degree of harm caused to your employer by the theft. The sum involved is very large. No restitution has been or is likely ever to be made. Conduct of this kind must be denounced, and offenders made an example of. However, I consider your previously undiagnosed psychotic condition together with your current health matters mean you are not an appropriate vehicle by which to create an example for others and you are at significant risk in custody.
90Your significant health problems and the significant risk of deterioration of your psychiatric and physical condition, together with the risk caused by your impaired mobility and inability to perform basic functions of self-care, leave me with the impression that it would be unjust and not in the interests of the community to incarcerate you.
91The sympathy of the court has been excited by your extremely poor mental and physical state and the real prospect of deterioration of that condition in a custodial setting. Accordingly, I have placed weight on the exercise of mercy in considering all sentencing purposes. Mercy is something which is always open to a court to exercise in an appropriate case. I consider yours is such a case.
92I am acutely aware that the sentence I will shortly announce may be considered extremely merciful, or even inadequate by some, for such serious offending. It prioritises your rehabilitation and places less weight on general deterrence for what would otherwise attract mid-level imprisonment in the vast majority of cases.
93The fact that an offence is serious, however, does not deprive the court of capacity to exercise mercy.[27] In this case, weighing it with other factors including your lack of any prior or subsequent criminal history, your very good prospects of rehabilitation and the grim prognoses for your medical conditions, I consider it would be too harsh to order a term of imprisonment which would otherwise be your just punishment.
[27]DPP v Moore [2009] VSCA 264 at [19]
94In arriving at the sentence, I have taken into account the following matters:
1) The observations and concerns of your employer regarding your mental health during the period of offending as noted in the prosecution opening;
2) Your cooperation with your employer and police;
3) Your early plea of guilty, which evidences your remorse and is of utilitarian benefit;
4) Your lack of any prior or subsequent criminal history of any kind, while I note that white collar crime is usually committed by people with no priors, or at least no dishonesty priors;
5) Your longstanding psychotic symptoms operative during the period of offending which doctors accept as a plausible motivation for your conduct;
6) Your admissions to a psychiatric facility, treatment with antipsychotic medication and persistent symptoms of psychosis despite treatment;
7) The delay of three years between the date of the filing hearing (14 June 2022) and the date of sentence (7 May 2025) during which you have demonstrated insight, rehabilitation and during which the sentence was hanging over your head;
8) Your Parkinson’s diagnosis with its current impact on you including tremor, facial droop, inability to care for yourself and impact on your balance, with the potential for decline in a custodial setting and, significantly in my view, an uncertain treatment plan which is difficult if not impossible to finalise in custody;
9) The neuro-degenerative disorder and its impact on the decline in your functioning;
10) Your perilous psychiatric health and its poor prognosis in a custodial setting;
11) The significant challenge your health would pose for management in any custodial facility;
12) My acceptance that all six limbs of Verdins were enlivened in your case and applicable to mitigate penalty;
13) The extra curial punishment occasioned by the combination of your health conditions, your age, your inability to return to work and to live independently; and
14) The extended pre-sentence report which anticipates your ability to comply with the terms of a community correction order.
95Would you please stand, Mr Kulik.
96In relation to Charges 1 to 5 inclusive of theft, you are convicted and sentenced to an aggregate community correction order for a term of three years.
97All of the mandatory conditions apply. In addition you will be subject to the following conditions:
(a) Supervision;
(b) Judicial monitoring;
(c) Offender behaviour program condition;
(d) Drug and alcohol treatment condition;
(e) Medical treatment condition;
(f) Mental health treatment condition; and
(g) Any other treatment or rehabilitation as recommended by the regional manager.
98If you fail to comply with the terms of the order, you can be charged with the offence of contravening the CCO, which is punishable by a term of imprisonment of up to 3 months. In addition, you can be re-sentenced for these offences, including to a term of imprisonment.
99But for your plea of guilty I would have sentenced you, taking into account all of your matters, to 12 months' imprisonment.
100I will now provide your counsel with a copy of the order. Mr Bloemen, would you like me to stand down so that you can go over the matters with your client?
101MR BLOEMEN: I am content to do that while Your Honour remains on the bench.
102HER HONOUR: All right, thank you.
103MR BLOEMEN: And take him to the question that I pre-empt will be asked of him. If I might approach?
104HER HONOUR: Please, thank you.
105MR BLOEMEN: Thank you, Your Honour.
106HER HONOUR: Mr Kulik, you have signed this order, do you understand the terms and conditions?
107ACCUSED: Yes.
108HER HONOUR: Thank you. Do you agree to comply with the order?
109ACCUSED: Yes.
110HER HONOUR: Thank you very much. You will attend for judicial monitoring on 7 August 2025 in this court at 9.30 am. Thank you.
111Gentlemen, I will provide you with a revised copy of my sentence by the end of today and the pseudonymised sentence will be published on
112Thank you, gentlemen, thank you both for your assistance. This has been a complex and difficult process that everybody has engaged in, and I have been thoroughly assisted by both of you, so thank you very much.
113Please adjourn the court.
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