Director of Public Prosecutions v Lay

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted
Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-17-02004

DIRECTOR OF PUBLIC PROSECUTION

GEOFFREY LAY

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	12 July 2018
CASE MAY BE CITED AS:	DPP v Lay
MEDIUM NEUTRAL CITATION:	[2019] VCC 1062

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M Cookson
For the Accused	Ms K Kothrakis

HIS HONOUR:

Geoffrey Lay, you have pleaded guilty to 3 counts of obtaining financial advantage by deception. The maximum penalty for each of these offences is 10 years imprisonment. You have also pleaded guilty to 3 counts of attempting to obtain financial advantage by deception. The maximum penalty for each of these offences is 5 years imprisonment.
You have no prior convictions and no matters subsequent or pending.
The prosecution tendered a summary of prosecution opening as exhibit A. A summary of your offending is as follows.
You have been employed by BUPA Australia Ltd since March 2014. BUPA is a not-for-profit organisation which provides health insurance. You worked in the sales area.
In the 3 month period, June – August 2016, you used your knowledge of the BUPA membership, computer and claims systems to fraudulently set up 171 false private health insurance policies with 209 false member names. In that 3 month period, you made 1501 false claims for benefits. 1378 claims were paid and funds were directly deposited into a number of bank accounts associated with you, that you nominated to receive those funds.
You set up the accounts with an application for one month free membership and you also waived the waiting period. In that way, no money was expended in executing the fraud.
In total, you received $119,598. You attempted to receive a further $10,735 in respect to the 123 unsuccessful claims made.
A BUPA employee discovered your offending on 22 August 2016. You were confronted with your offending on 31 August 2016. You initially denied wrongdoing, but later on the same afternoon of 31 August you made comprehensive and full admissions in a recorded interview. You were instantly dismissed.
The matter was not referred to the police until March 2017. You were arrested by police on 6 June 2017. You referred to the comprehensive statement admitting your guilt made to BUPA the previous year and then made further comprehensive admissions, detailing how you perpetrated the fraud. Whilst you were not sure of the precise amount received, you told police that you knew it was “quite a lot” of money and that it was “more than 100” thousand dollars. You told police that most of the money went towards gambling at the Crown Casino.
The plea of guilty was entered at the earliest opportunity. Some little time was taken to negotiate the form of the indictment so that charge 1 represents the offending in June 2016; being 10 rolled up charges. Charge 3 on the indictment represents the offending in July 2016 and represents 23 rolled up charges. Finally, charge 5 on the indictment represents the August 2016 offending, and in each case I refer to the completed offending, and represents 8 rolled up charges.
I turn now to the objective gravity of your offending. In a comprehensive plea conducted on your behalf by Mr Johns of Queen's Counsel, it was submitted that the objective gravity of the offending should be measured by reference to the amount of money stolen, the relatively confined period of offending, and the fact that the commission of each offence was not labour-intensive and took only a couple of minutes for each offence to be committed.
The Crown submitted (and I accept) that the commission of the offence against your employer involved a breach of trust. Furthermore, it is apparent that you used the skills provided to you by your employer as to your knowledge of the health insurance product, the application for membership procedures, the availability of a one month free membership period and the ability to waive the waiting period to perpetrate these frauds. You limited the number of claims made in respect to any individual policy to ensure that it did not trigger a request for receipts from BUPA.
Your offending required considerable forethought, planning and skill in its execution. Whilst the commission of any one offence may not have been labour-intensive, (as your counsel put it), your offending over the 3 month period was indeed intensive. On even a rough calculation, when averaged out, you were committing approximately 20 offences per working day.
Whilst the amount of money involved is not at the highest end of deceptions seen before this court, it remains a very significant amount of money.
In my view, the circumstances of your offending are, objectively, very serious indeed. As I have noted already, your offending was skilfully executed; it was subtle, in that each fraudulent claim was designed to “fly under the BUPA radar” so to speak and marked by an incredible intensity of high-volume offending. In these circumstances, the principle of general deterrence must loom large.
Moreover, your moral culpability for your offending remains high. Although your counsel skilfully contrasted the motive for your offending with those who are motivated to funding a lavish lifestyle, it was not suggested that there was any impairment to your reasoning at the time you committed these offences. In fact, it was submitted that at the time of your offending, you had some disaffection with your employment as performance expectations had increased whilst advancement prospects had diminished. It was a multiplicity of debt pressures arising from long-standing gambling issues which caused you to seek further funds illicitly. Whilst it is true to say that your offending was motivated by your gambling addiction, I do not consider that this has any particular effect to reduce your moral culpability for your offending.
I turn now to your personal circumstances. You are 28 years old and you were born in September 1989. You are the oldest of 3 children. Your parents moved to Australia from East Timor in 1985.
In your early teens, you lived with your grandparents whilst your parents concentrated on running a grocery store in Noble Park. They worked long hours to provide for the family.
At the age of 14, you and your siblings moved back with your parents in Chelsea Heights.
You described your family life as strict. You had a loving relationship with your mother and did not feel as close to your father or your brothers.
Your school years were unremarkable. You told Mr Johns that you enjoyed your time at school. You were placed under considerable pressure of expectation from your parents. Whilst they hoped that you would study medicine, your VCE score fell short. You commenced studying electrical engineering at RMIT but did not complete the course. At the time you were studying, you worked at Telstra in sales. You enjoyed this.
Your mother was ill for about 6 years before she died in March 2014. It was at that time that you commenced working at BUPA. It appears that you have suffered continued and unresolved grief at your mother’s death. She was your “go to” person in the family, and as I have already observed, it is apparent that you do not feel anywhere near as close to other family members. You enjoyed your work at BUPA initially, and then, as I have said, you became somewhat disenchanted with the position in 2016. Such was your state of mind, it appears that you did not hesitate to commence offending by June 2016. You told police that you had stopped offending shortly before it was discovered.
In any event, you have taken only limited steps to address your gambling addiction. After your employment concluded at BUPA, you took four counselling sessions. After that, you had another four counselling sessions with an employee assistance program.
Interestingly in this respect, I was told that the plea was originally to proceed on 28 February 2018. I was told that it was adjourned because, in effect, your lawyers were concerned that you had not done enough to address your gambling issues. In his report of February 2018, Dr Matthew Barth reported that you had told him that you had “largely ceased [your] gambling behaviour since being charged”. After the plea was adjourned, you commenced attending gamblers anonymous and have now attended 5 sessions. In addition to that, you had two private sessions with a member of Dr Barth’s staff.
You have been in employment again since October 2016 when you got a job with an insurance broking provider.
Notwithstanding your consistent employment, I was informed at the commencement of this sentence that you had made no restitution whatsoever to BUPA. I was told on the plea that you had saved a sum of money to make some restitution, but that at your father’s request, you gave the money to him instead. However it is put, I consider that you made a deliberate decision not to commence making restitution for your crimes until the very last moment. You made the decision not to make restitution, notwithstanding the fact that you have worked continuously for the last 20 or 21 months.
The report of Dr Matthew Barth concluded in February 2018 that your behaviour warrants a diagnosis of gambling disorder – severe – in early remission (provided your current reduction could be objectively verified). When you were reviewed by Dr Barth on 21 June 2018, you told him that you had no desire to gamble again, that you had been exercising regularly, that you were committed to a healthy diet and that you were attending church. Nevertheless, Dr Barth considered that your relapse prevention plan remained underdeveloped and your coping skills when faced with personal stressors was very limited. Dr Barth considered that you displayed improvement with your insight during your most recent review. Nevertheless Dr Barth states in that latest report:
“…despite attending several gamblers anonymous meetings in recent months, he has been unable to continue with individualised treatment he requires. Hence, his rehabilitation remains incomplete.”
Dr Barth concludes that you are an immature young man. He considers that you require a minimum of 6 months of regular treatment on a fortnightly basis before you are likely to achieve more comprehensive progress in addressing your gambling and related psychological problems.
In this respect, you told Dr Barth that you had been to the casino as late as January 2018 with friends, but told him that you had only gambled $50.
In reality, I do not have any material before me as to what progress you have made in counselling in respect to your gambling addiction. Rather, I have only your expressions made to Dr Barth that you are confident you will not gamble again.
Moreover, you did not have anyone available in court to support you. It became apparent that when you told your father of your offending, he provided you with no real support. You moved to your cousins place to live for period of time, although you returned home to your father’s place in the last few days before the plea. You told your girlfriend on the weekend before the plea. Her response was to end the relationship. It was put to me (without any detail) that you had told someone at work that you were facing court, but it was implicit that you did not reveal the fact of or extent of your offending to your employer at the time of taking the job with Lifebroker, or since.
It was submitted on your behalf that you have shown real remorse and shame for your offending. There is no doubt that you expressed your remorse to the police in your record of interview. Dr Barth notes that you appear to be remorseful and ashamed of your offending. I consider that you have some insight into your offending, as you made admissions on the afternoon that you were confronted by your employer, and you made full admissions to the police and indicated your plea of guilty at the earliest time.
Nevertheless, your remorse and shame appear to be such that you have compartmentalised it along with your offending; that is, you have largely ignored it, and gotten on with your life.
Mr Johns submitted that the sentence I impose upon you should be mitigated by the following:
·first, your comprehensive admissions;
·second, your plea of guilty at the earliest time;
·third, your shame, guilt and remorse,
·fourth, the fact that you have not reoffended;
·and fifth, that you have made some efforts to address your gambling addiction by attending counselling.
As such, Mr Johns submitted that these factors, together with your consistent work record and your determination not to gamble should aid your prospects for rehabilitation. To that I would add the submission made by Ms Kothrakis this morning, that you have apparently made a contribution of $5,000 towards restitution.
Ultimately, Mr Johns submitted that you should be sentenced by way of a community corrections order. In support of this, Mr Johns referred to a series of sentences imposed by judges in this court where persons convicted of dishonesty offences against their employers received community corrections orders without periods of imprisonment.
I have considered each of the sentences referred to by Mr Johns. Ultimately, I do not consider them to provide any assistance in determining the appropriate sentence in this case. Mr Johns referred to Bezuidenhout [2016] VCC 1070, a sentence of Judge Mason. That was a case to do with a single mother with two children, who had, before the plea, repaid $4,900 to Telstra, showing a commitment to repay the loss. She had good character references provided on the plea.
He referred to Chapman [2016] VCC 231, a sentence of Judge Lacava. Chapman had some support in court and was a married man, who had been married for 9 years. There was a case of Deal [2017] VCC 754, dealt with by Judge Lacava. There was money refunded by his former wife and an agreement to make an adjustment of the matrimonial settlement of the property between them.
Venn [2017] VCC 1043 a sentence of Judge Patrick. Venn had paid back a considerable amount of money, that was a sentence of Judge Patrick. Over $37,000 was repaid and a number of quality references supplied.
In Wilson [2016] VCC 89 a sentence of Judge Lawson, there was a property to be sold, which would have made almost full restitution from the sale.
The matter of El Haouli [2017] VCC 125, a sentence of Judge Carmody, where a man with a dependant wife and child resolved to sell a property to make almost full compensation of $142,000.
There was a matter of Kirakopolous [2017] VCC 1297 a sentence of Judge Wilmoth, where there was no restitution made, and a matter of Abdo [2016] VCC 1624, a matter of Judge Carmody, where there was no restitution made, but the actual amount gained was $32,704, which stands in contrast to the amount gained by you. So as I say, after examining those cases, I get no real assistance from them.
In his submissions Mr Cookson on behalf of the prosecution referred to a number of cases where imprisonment had been imposed by judges of this court for dishonesty offences committed against employers. He also referred also to other sentences where CCO orders were made.
Once again, I consider that when those sentences are examined carefully, they provide little assistance in determining the appropriate sentence to be imposed in this case. Moreover, as Mr Cookson submitted, earlier sentencing practices are not controlling of the sentence I impose upon you in this case. What I must achieve is a sentence which takes into account the objective gravity of the offending and, to the extent appropriate, the factors in mitigation.
In this respect I take into account that charges 1, 3 and 5 are rolled up charges.
I do consider that your plea of guilty has considerable utilitarian effect.
Ultimately, Mr Lay, I have concluded that the object gravity of your offending calls for you to serve an actual period of imprisonment before you should be released on a community corrections order. The breach of trust involved in stealing so intensively from your employer must be met by stern punishment. I do not consider that the matters raised in mitigation enable me to impose an entirely non-custodial disposition in this case.
You were assessed for your suitability for a community corrections order. That assessment shows that you remain of medium risk of reoffending, in other words Mr Lay, when I take into account this assessment and the other matters I have mentioned about your conduct since you were charged with these offences, you still have a lot of work to do in order to achieve your rehabilitation.
I propose that at the end of a period of imprisonment, which I will announce at the end of these remarks, that you be released upon a community corrections order in the following terms. Please listen carefully, as at the end of this proposal, I am going to ask you whether you consent to the making of such an order.
I propose at the end of the sentence of imprisonment, you be placed on a community corrections order for a period of 12 months. You will need to comply with the conditions imposed by s.45 of the Sentencing Act. In summary they are as follows:
·you must not commit, whether inside or outside Victoria, during the period of the order, an offence punishable by imprisonment, and I warn you, most offences are punishable by imprisonment;
·second, you must comply with an obligation or requirement prescribed by the regulations, and Ms Kothrakis will explain that to you;
·third, you must report to and receive visits from the Secretary, that is otherwise known as Office of Corrections, during the period of the order;
·you must report to and receive visits from the Office of Corrections during the period of the order, and you will be reporting to the Carlton office;
·you must report to the community corrections centre in Carlton within two clear working days after the order comes into force, and as I indicated, that will be immediately upon your release from imprisonment;
·next you must notify the Office of Corrections of any change of address or employment within two clear working days after the change;
·next you must not leave Victoria, except with the permission of the Office of Corrections, and you must comply with the directions given by the Office of Corrections, that is, to ensure that you comply with the order.
They are core conditions. They attach to every community corrections order. In addition to the core conditions, I propose to impose the following conditions:
·first, that you are to perform 60 hours unpaid community work over the course of the 12 months of the order;
·second, you are to submit to the supervision of the community corrections office;
·third, you are to submit to assessment and treatment, including testing for mental health issues, as directed;
·fourth, you are to submit to assessment for, and to undergo offender behaviour programs as directed; and
·fifth, I would propose that the hours spent undertaking mental health assessment and counselling and offender behaviour programs, reduce the unpaid work hours.
HIS HONOUR: Mr Lay, are you prepared to consent to a community corrections order in those terms?
OFFENDER: Yes I am.
HIS HONOUR: Thank you. The order will be prepared by associate, and I will give it to your counsel in a moment. You will then need to sign it. Now the sentence of the court is as follows.
On all of the charges, you are convicted and sentenced to a period of imprisonment of five months. Thereafter, you are to be released on a community corrections order with those core conditions and then the five matters that I have raised.
·first, to perform 60 hours unpaid community work over the course of the 12 months;
·second, to submit to supervision;
·third, to submit to assessment and treatment, including testing for mental health issues, as directed;
·fourth, to undergo offender behaviour programs; and
·fifth, that the hours spent undertaking mental health assessment and counselling and offender behaviour programs will reduce the unpaid work hours.

HIS HONOUR: I will hand this order down to you, Ms Kothrakis. If you could check it and then have it signed by Mr Lay.
MS KOTHRAKIS: It's been signed, Your Honour.
HIS HONOUR: The 6AAA declaration is but for the plea of guilty, I would have imposed a sentence of 30 months with 22 months to serve.
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[2019] VCC 1062

12 July 2018