Director of Public Prosecutions v Leimonitis

[2018] VCC 586

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-01633

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANNA LEIMONITIS

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JUDGE:	HIS HONOUR JUDGE HIGHAM
WHERE HELD:	Melbourne
DATE OF HEARING:	15 December 2017, 6 & 17 April 2018
DATE OF SENTENCE:	27 April 2018
CASE MAY BE CITED AS:	DPP v Leimonitis
MEDIUM NEUTRAL CITATION:	[2018] VCC 586

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Sim	Office of Public Prosecutions
For the Accused	Mr P. Dunn QC	Balot Reilly Criminal Lawyers
Mr M. Kozlowski

HIS HONOUR:

1Anna Leimonitis, you have pleaded guilty to one rolled up count of obtaining a financial advantage by deception.  The maximum penalty for this offence is a term of imprisonment of ten years. 

2You have no prior criminal matters nor any subsequent matters.

3The offending occurred in the course of your employment as a client manager at Suncorp where you had commenced employment in 2011.  You held various positions in that company before being promoted in August 2012 to the role of client manager.  In that capacity you managed insurance claims and processed payments.  Most of your transactions did not require approval from a second person.

4Between 2 April 2013 and 2 September 2016 you generated 25 fraudulent claims and corresponding payments.  The details of each of the claims were almost entirely fictitious; the name, address and contact details the subject of each of the claims was false.  You created false invoices for insurance claims using real company names on the false invoice.  You then attached those false invoices to false insurance claims which you then sent to the email address [email protected] or [email protected].  You used either your own email account or email accounts you created in false names.  After emailing the false claims you would then approve those very claims.

5I use Transaction 3 as an example.  On 11 June 2013 you lodged a claim (no. H012756252) against a GIO policy in the name of Anna and Michael Papadapilis of 21 Errol Street, Brunswick, Victoria.  A mobile telephone number was also provided.  The claim stated that a hearing aid had been lost. 

6On 12 June 2013 you sent an email to [email protected] reportedly from Michael Papadapilis together with a quote detailing the replacement of the hearing aid, purporting to be from Hearing Life for a value of $10,300.  This quote was on a Hearing Life letterhead, was addressed to Michael Papadapilis and contained details of an audiologist.  The claimants and the claim were all fictitious.

7You then, in your position as client manager, proceeded to process and approve this claim.  On 17 June 2013 a payment of $10,300 was paid into your CBA bank account.  You then closed the claim and it was archived.  On 19 June 2013 the sum of $10,300 was deposited into your CBA bank account.

8Each of the fraudulent claims were executed in a similar fashion whereby you lodged a false claim against a GIO or APIA policy in a false name and provided false contact details for the insured persons.  You then sent a false invoice or quote sometimes on letterhead with a company address before processing the claim and depositing the payment into your personal bank account. 

9Twenty-four payments were depositing into your personal bank accounts and one payment was deposited into the bank account of one of your acquaintances who then transferred the money to your own bank account.  The sum of the
25 fraudulent claims and the total loss to Suncorp was $200,099. 

10In September 2016 Suncorp conducted a random review of claims that you had processed and consequently became concerned about the legitimacy of the claims which underpin the charge that you now face.  You were spoken to by a senior investigator at Suncorp about these claims on 28 September 2016 and you made full admissions to creating the false claims and to receiving payments.  You admitted to creating the email accounts under false names and to sending the supporting emails for the fraudulent claims to Suncorp.  You said that you believed you had made up the policies and lodged the claims whilst at home using your mobile phone and then actioned the claims when you got into work.  You told the company investigators that you had never used a legitimate customer's claim on their insurance policies as part of your fraudulent claims.  Your employment was terminated the following day. 

11You participated in a police interview on 15 December 2016 having travelled down from New South Wales where you were then living to Melbourne and you again made full admissions to the offending.  You were unable to provide an explanation as to why you had offended nor were you able to explain on what you had spent the money.  You were charged on 24 March 2017 and entered a plea of guilty at a committal mention in August 2017.

12I now turn to your personal circumstances. 

13You were born in Melbourne on 15 July 1991 and are thus now 26 years of age, and were aged between 21 and 25 at the time of your offending.  You have one older and one younger brother.  Your father worked in furniture sales and your mother worked in the supermarket.  Your family were Greek Australian with Peloponnese heritage.  You grew up in Campbellfield.  Your parents worked very hard and were often absent from your home.  Your grandparents were thus an integral part of your upbringing.

14You attended local schools firstly in Brunswick and then at Fawkner High. 
You left school at the end of Year 10.  Of significance in your personal history is that in 2006, when you were aged 15, your father opened a wholesale furniture business in Reservoir, sourcing furniture from Malaysia.  The following year your parents opened a takeaway shop in Bay Street, Port Melbourne, which was open seven days a week. 

15Your father was now based full time in Malaysia to better pursue his business interests, only returning home every few months.  Your mother was working full time in the Bay Street takeaway and you children were expected not only to come to the store after school where you did your homework in the back room and often times slept there at least part of the night before being taken home at the end of the working day, but also you were expected to help out in the store on weekends and school holidays.   It appears that this separation and working life placed great strain upon your parents' relationship.  Your mother's eventual response to the strain was to relocate herself to Malaysia when, insofar as I can ascertain, you had just turned 18.

16From leaving school at the end of Year 10 you have a consistent work record.  You worked in retail then moved to telephone sales, first for AAMI and then for Suncorp.  Your first post with Suncorp was in the telephone sales department where you cold-called.  When that department was moved offshore you moved to the insurance claim division of Suncorp in 2012 and it was whilst in this post the offending was committed.

17In February 2016 you requested a transfer from Melbourne to Sydney. 
You were offered a job by Suncorp in the claims department in Sydney which you rejected.  You wanted to work in a department outside of claims.  I was told on the plea that this was an attempt by you to stop your offending well before matters were detected.  In mid-2016 but before the last instance of your offending you were offered a technical support role in Sydney.  In September 2016 you relocated to Sydney finding accommodation in Blacktown.  That same month an audit uncovered your offending.

18Since your dismissal from Suncorp you have maintained two jobs both to support yourself and to make some restitution.  As of today a total of $25,050 has been repaid.  This is a significant matter and one to which I shall give full weight.

19In 2009 your best friend died of an asthma attack.  That same year, although precisely when is not clear to me, your mother relocated to Malaysia. 
In essence, she was abandoning you and your brothers.  You were left in the home and as a woman were expected to look after the two boys notwithstanding that one of them was older than you and notwithstanding your own youth.  Your grandparents provided as much assistance as they could but what has become clear over the course of the plea is that the impact upon you of the abandonment of you by your mother has been lasting.  Indeed it can be described as currently the overarching and defining feature of your personality.

20Your mother's departure was apparently unannounced.  You recall being informed by a third party the following day that your mother had left to meet your father overseas.  You were given no more information and despite expecting your mother to return you received no correspondence from either of your parents throughout the following six years.  Not long after your mother's departure you called your mother to inform her that you were not coping.  Apparently your mother's response was to simply end the call without responding. 

21Whilst not seeking to question the reasons behind your mother's departure,
I accept that your mother's departure had a devastating emotional toll upon you and upon your siblings.  You were overwhelmed by your sense of abandonment and by having to prematurely take on the responsibilities of running a household, a feeling that remains with you to this day. 

22From that point on it seems that your engagement with the outside world consisted in you turning up for work.  In all other respects you retreated, becoming more and more isolated.  You resented being seen by friends, family and neighbours as a victim of your parents' actions.  You felt uncomfortable with sympathy and this fed your relative retreat from the world.  You did have a close relationship with a Mr Michael Azer and it seems that when you were 21 either the relationship ended or Mr Azer left Australia for Lebanon to care for his sick father.  I am prepared to accept that the precarious nature of this relationship fed into your ongoing and overarching sense of abandonment which you still keenly felt.

23Since your arrest and charge in relation to these matters you have attended
Mr Ross Leonard, clinical psychologist, whose progress report upon you was tendered on the plea as Exhibit 6AL.  He identifies the impact of the loss of your parents and states that:

"Anna reported the sudden death of her ‘closest friend and confident’, from an asthma attack. This loss only further exacerbated her grief and sense of loss, sending her into a very numbing and depressed state without access to her two closest social supports."

24I understand that it was at this point that you told your mother that you were having difficulty coping.

25Mr Leonard states that,

"It is most likely that Anna was suffering from an undiagnosed depression and debilitating anxiety during that time.”

26Mr Leonard's clinical treatment report identified that you lacked adequate coping strategies to deal with any crisis in your life, choosing your isolation and withdrawal from social activities and rapid weight gain through binge eating as a way of self-medicating your symptoms and of self-medicating your emotional pain.

27He identified that you have now engaged with family and friends in both Sydney and Melbourne communities and that you have displayed and maintained a continued and committed involvement in therapy which goes towards developing an improved sense of self-worth and sufficient psychological resilience crucial to your ability to manage both your behaviour and your emotions during times of crisis.

28A further forensic psychological report from Dr Simon Vincenzi was obtained on the plea, Exhibit 8, with a view to determining your risk of re-offending and if possible to provide context to the offending.  His report revealed apparent biographical inconsistencies and Dr Vincenzi therefore gave oral evidence in an attempt to provide clarification.  Dr Vincenzi concluded that:

"Based on Ms Leimonitis' self-description, she appears to continue to meet criteria for a diagnosis of major depressive disorder (MDD) with comorbid anxiety.  She described feelings of loneliness, self-deprecating thoughts (e.g. “I wasn't good enough for my parents to stay”, “I was a bad kid”), low energy, sadness, a sense of emptiness, and fluctuating appetite". 

29Dr Vincenzi spoke by telephone to your mother in Malaysia.  She confirmed the circumstances of her leaving and stated to Dr Vincenzi,

"I think all of this is because I left them… A daughter needs her mother. I’d never left her before… We were best friends.”

30Clarification was sought from Dr Vincenzi as to when your relationship with
Mr Azer ended and any potential connection to the offending: if it had ended before the offending, that may very well have fed into your sense of abandonment and re-awakened past emotions of worthlessness, whereas if it had ended after the offending had begun then such a posited connection could not be made. In this regard Dr Vincenzi stated in evidence that,

"Depression often waxes and waves. If he (your boyfriend) is away then that would accentuate her depression.”

31He further commented that whilst there is no direct correlation between your sense of depression and the offending and whilst you never gave Dr Vincenzi the impression that you were the only one caring for the family, he describes that you found the familial duty an additional stressor in that it reinforced the lack of agency that you felt you had in your life.  In Dr Vincenzi's view there were many things happening in your life that were not under your control.  Whatever inconsistencies there may have been in your biographical account, Dr Vincenzi was clear that,

"In the case of Ms Leimonitis, her mother leaving did impact upon her for a very long time and that is something that stayed with her.”

32Dr Vincenzi was of the opinion that you continued to experience some difficulty with insight and you were unable to satisfactorily articulate what motivated your offending behaviour.  You see yourself as a pro-social person and in that regard your self-concept is at variance with your offending.  You knew at the time that "this is so wrong" but you also felt compelled to continue.  You told Dr Vincenzi that you would spend the money on pampering yourself such as facials or hairstyle appointments stating, "It was like I wanted someone to love me and so I had to love myself".  This was different to what I had been told earlier on the plea which was that you could not assist as to where the money had gone. I make it clear however I do not draw any adverse inference against you from this apparent inconsistency.  The two positions are not, in my view, inexorably irreconcilable.

33Psychological testing administered by Dr Vincenzi indicated:

(i) That you were aware of your shortcomings but that you wanted to appear publicly acceptable;

(ii) That whilst you meet criteria for a diagnosis of major depressive disorder, your condition would not appear to be severe in intensity; and

(iii) That you present as being within the very low risk category for future offending behaviour in the long term.

34Dr Vincenzi concluded that the distress you experienced following your parents' relocation appears to have contributed to ongoing issues with a depressed mood and anxiety which symptoms appear to have manifested in response to a sense of powerlessness.  You reported to him that your offending provided you with a sense of control while your life felt otherwise void of personal agency.  Dr Vincenzi drew the analogy with anorexia nervosa, a disorder that most commonly impacts individuals of the same gender and age as yourself at the time of the offending and which symptoms are often manifest in response to similar urges within individuals to exert control in their lives during periods of perceived powerlessness.  Dr Vincenzi was of the opinion that your offending could be viewed as a dysfunctional coping strategy as an attempt to retain agency over your world. 

35I turn now to the submissions of counsel on the plea. 

36Mr Sim, for the prosecution, in concise and detailed submissions reminded me that those who commit white collar crime, as offending of this kind is often called, usually have no prior history and that the prospects of rehabilitation of such offenders were generally very high and thus specific deterrence often would carry less weight.

37He pointed to the absence of any demonstrated causal connection between your mother's departure, its impact upon you and the offending with which you are charged and to which you have pleaded guilty.  He submitted that howsoever and wheresoever the idea of the offending had been conceived you nonetheless put the idea into execution by going from your home into your office to process the claims and to authorise payments into your personal bank accounts.  In short, Ms Leimonitis, you put the plan into effect.

38He submitted that the offending involved sustained and repeated acts of dishonesty whereby you used your position and designated authority in the company to enrich yourself.  It thus constituted a gross breach of trust over a period in excess of three years.  In line with well-established sentencing principle, sentencing purposes of general deterrence and denunciation, he submitted, have particular significance. 

39Mr Sim concluded that having regard both to the circumstances of the offending and to your personal circumstances, neither a Community Correction Order standing alone nor a combination sentence were within the range of appropriate sentencing disposition.

40Your counsel, firstly Mr Dunn QC and then Mr Kozlowski, detailed your personal and family history and emphasised the lasting impact upon you of your mother's abandonment of you which was then compounded by the separation from your friend, Mr Azer.  The resultant lack of self-esteem and overwhelming negative self-image which had earlier manifested itself in binge eating, constituted the emotional context for your offending.

41He described your consistent work history and how you regarded Suncorp as a terrific employer.  He submitted that you had made requests to be transferred to a different department which I should view as an attempt to stop your offending before its detection.  Your move to Sydney to a different department could likewise be seen as an attempt to place yourself out of the temptation's way.

42He described the inception of the offending as occurring in your bedroom where you were alone and isolated and began playing on your device making up these claims.  At that point the criminal enterprise had not yet been fully formed in your mind but rather you continued with the nascent idea that became in Mr Dunn's words, "like a snowball rolling down the hill".  He reminded me that apparently your work supervisor had been concerned about you.

43He confirmed that you were at a loss to explain the reason behind your offending.  You said, "I'm responsible.  I don't know why I did it".  It was not driven by need nor it seems could you now identify where the money had gone.  There was no evidence of excessive or ostentatious acquisitions but rather the monies have simply been incorporated into your regular expenditure.  I note in this regard what you said to Dr Vincenzi as to some of the monies going on pampering and making yourself feel loved.

44Your counsel submitted that your offending was relatively unsophisticated and emphasised that there have been no attempt at concealing your wrongdoing apart from archiving the closed claim.  I accept that submission insofar as there was no attempt by you to disguise or camouflage the conduct in question over and above the falsification required to complete the offence and there was no elaborate construction of paper trails so as to frustrate and make more costly any investigation.

45He submitted that you were a youthful offender who had been compelled to negotiate the important late adolescent years without the constant guiding presence of your mother. 

46Your counsel emphasised the attempts that you have made at restitution by taking two jobs and working six days a week.  You have already paid $25,050.

47He pointed to your early plea of guilty which I regard as having been entered at the earliest opportunity as attracting not only the utilitarian benefit, that is to say the benefit that comes in terms of saving to the community of the time and expense of a trial and the trauma and unnecessary distraction to individual witnesses to have to come and give evidence, but also your early plea could be regarded by me as an indication of your remorse.  I again accept that submission.  I have no doubt that although you cannot now articulate why it was you acted as you did, you are both regretful and you are remorseful for your conduct. 

48Your counsel submitted that your prospects of rehabilitation were excellent and that you are unlikely to trouble the courts again.  I accept that submission and accordingly regard the need for specific deterrence as having been, in your case, diminished albeit not eliminated.

49Your counsel also emphasised the delay between you first being questioned in September 2016 and the final resolution of the matter.  I accept that you have been impacted by this delay and that you have used the period to make significant efforts at restitution.

50Your counsel's ultimate submission, both from Mr Dunn QC and repeated by
Mr Kozlowski on the sentence, was that sentencing purposes could be met by the imposition of a Community Correction Order or alternatively a term of imprisonment of no more than 12 months combined with a Community Correction Order.  Ms Leimonitis, I cannot accept that submission.

51I turn now to the seriousness of the offending. 

52Ms Leimonitis, your offending involved the repeated, deliberate taking of monies that belonged not to you but to your employer.  Offending of this kind will always be viewed by the courts as serious.  It is not a species of victimless crime as some are apt to regard it.  The impact of such offending is reflected in the higher premiums charged by the companies and that the rest of the community have to pay.  It was a gross abuse of the trust that had been placed in you by your employer.  Your position as claims manager enabled your offending.  You had the delegated responsibility for approving claims and in authorising payments in satisfaction of such claims. 

53Whilst the offending might not be described as sophisticated, elaborate or complex, it nonetheless required forethought, some degree of planning and on each occasion a decision by you to complete the fraudulent transaction. 
Your offending covered a period of three years and four months and you obtained a sum in excess of $200,000. 

54The courts have made clear that general deterrence is of particular importance.  It is precisely because offending of this kind is easy to commit, may be difficult to detect and is usually committed by persons who hold a position of trust and who are otherwise of good character that the message needs to be sent to anyone contemplating exploiting or abusing their employed position so as to dishonesty enrich themselves, be careful.  If you are caught you will be punished.

55Ms Leimonitis, in sentencing you I must have regard to a range of different factors.  I must give effect to principles of general deterrence, that is, I must deter others from behaving as you did.  I accept that you are unlikely to come before the courts again and thus the need for specific deterrence is, in my view, greatly diminished although not entirely eliminated.  I must express the community's denunciation of your conduct and I should promote, if possible, your rehabilitation.  I must have regard to current sentencing practices and to the statutory maximum penalty for your offending.  I must try, in short, Ms Leimonitis, to balance your personal circumstances with the circumstances of your offending.

56Principles of general deterrence and denunciation are clearly the primary sentencing considerations in your case. I give full effect to all of the mitigatory factors to which I have been referred.  For the avoidance of doubt
I have particular regard to the following:

(i) Your plea of guilty which was entered at the earliest opportunity. 

(ii) Your genuine remorse. 

(iii) Your full and frank admissions to your offending made both to your employers upon enquiry and to the police. 

(iv) The delay between first investigation and final resolution. 

(v) The efforts that you have made to effect restitution. 

(vi) Your engagement in counselling so as to address what underlies your offending behaviour and to attempt rehabilitation. 

(vii) The evidence of Dr Vincenzi as to the lasting impact upon you of your mother's abandonment and your ongoing depressive disorder. 

(viii) Your relative youth both now and at the time of the offending. 

(ix) Your prospects of rehabilitation, which I regard as excellent and the fact that this will be your first time in custody.

57However, Ms Leimonitis, in my view the sentencing purposes of general deterrence and denunciation can only be met by an immediate term of imprisonment in your case.

58If you can stand up, Ms Leimonitis.

59On the charge of obtaining a financial advantage by deception you are sentenced to a term of imprisonment of 21 months.  I fix a non-parole period of 12 months.

60Pursuant to s.6AAA of the Sentencing Act 1991, had you not pleaded guilty you would have been sentenced to a term of imprisonment of two years and six months with a non-parole period of two years.

61I make the order for compensation in the sum of $175,049.

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