Director of Public Prosecutions v Levy

[2017] VCC 837

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01899

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL LEVY

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	20 June 2017
CASE MAY BE CITED AS:	DPP v Levy
MEDIUM NEUTRAL CITATION:	[2017] VCC 837

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pickering
For the Accused	Mr A. Tickner

HER HONOUR:

1Michael Levy, you have pleaded guilty to two charges of theft, Charges 1 and 2 and uplifted Summary Charge 201, being a charge of dealing with property suspected of being the proceeds of crime.  The maximum penalty for theft is 10 years imprisonment.  The maximum penalty for dealing with property suspected of being the proceeds of crime is two years' imprisonment.

2The prosecution made application for the taking of a forensic sample from you.  The making of that order was not opposed.

3The circumstances of your offending are set out in the Summary of Prosecution Opening, which was tendered as Exhibit A.  The circumstances in brief are as follows.  In 2013 and 2014, you were employed at the Dandenong distribution centre for Schneider Electric.  Your role included restacking pallets following delivery, scanning barcodes and picking customer orders.  The company became aware that Schneider Electrical products, such as electrical switches and cabling, were being sold on eBay at below retail or wholesale prices. 

4A police investigation revealed that you had been stealing stock from Schneider Electric between 23 February and 4 September 2014.  You had sold some of that stock to other people directly or via eBay.  After a period of time, you had sold your stock to one purchaser, Mr Jaensch, who then on-sold it over the internet. 

5Search warrants were executed on 16 September 2014 on the property of
Mr Jaensch and your home.  Your partner provided police with keys to storage units which were rented by you.  On 1 October 2014, a search warrant was executed at two storage units rented by you.  Police seized records which documented sales to third parties between 27 February 2013 and 24 June 2013 of $275,965, of which $11,535 related to sales to Mr Jaensch.  It is the prosecution case that after 24 June 2013, you were selling directly to Mr Jaensch. 

6Police also seized a Holden SS Commodore sedan believed to be the proceeds of crime.  That vehicle is the subject matter of Summary Charge 201. 

7In an initial interview with police on 16 September 2016 you made full admissions to the thefts.  You said you had taken the products due to financial circumstances.  You were re-interviewed on 3 October 2014.  You again made full admissions saying that you had a gambling problem.  You also admitted the Holden Commodore was purchased using the money from the sales of the stolen goods. 

8Based on the records seized and sales to Mr Jaensch, the total value of the goods stolen by you between 23 June 2013 and 31 December 2013 was $341,625.50 (Charge 1), and between 1 January 2014 and 4 September 2014 was $177,000 together with other transactions of unknown dates, amounting to $17,690 (Charge 2).  The total value of the thefts was $536,315.50. 

9In sentencing you, I have taken into account your personal circumstances, which were outlined in the Plea Hearing Submissions of the Accused (Exhibit 1), and in the psychological report of Dr Paul Grech dated 22 May 2017 (Exhibit 2). 

10You were born in New Zealand.  Your only sibling died when she was a baby.  Your parents had difficulty coping with her death and ultimately separated, with your father moving to Australia.  You finished Year 12 in New Zealand in 1990 and came to Australia to find work.  You found work on a farm and lived there for approximately three years.  You met your first partner shortly after moving to Australia.  You and she had a child.  She developed post-natal depression, and you took six months off work to look after her.  In 2004, your family lost everything in a house fire.  As a consequence, you became a volunteer fire brigade member, and then applied for and obtained a position as a full-time firefighter in Sydney.  In 2007 and 2011 you had a further two children.  During 2011 you separated. 

11In 2012, you met your current partner and moved to Melbourne.  When you moved to Melbourne with your new partner, your previous partner stopped you seeing your children.  You became depressed, and at some point began gambling, and developed a chronic gambling problem.  In more recent times, you have had far more contact with your children, and have stopped gambling.  You have been seeing Dr Grech in respect of your depression.  Up to the time of your plea, you were working full-time in a permanent job loading interstate trucks. 

12In sentencing submissions, your counsel submitted that the appropriate sentence would be a combination of a sentence of imprisonment with a community correction order.  Your counsel particularly relied on your early plea of guilty, your remorse, your full and frank admissions, your mental state at the time of offending, the lack of any relevant prior offending and strong prospects of rehabilitation.  Your counsel said that you are providing financial support to your three children and three step-children.  Your counsel said that you had demonstrated remorse and taken steps towards your rehabilitation.

13You have admitted a prior criminal history, which is limited to three court appearances involving driving-related offences. 

14Dr Paul Grech gave evidence.  Dr Grech said he had seen you about 32 times since you were referred for psychological treatment on 7 August 2016.  Dr Grech said that you definitely had symptoms of severe clinical depression, which during the period of the offending had contributed to your gambling problem.  He said that when he first saw you, there were still signs of moderately severe clinical depression which had improved, and that in more recent times, there were signs of mild depression.

15It is Dr Grech's opinion that at the time of the offending, you were suffering from severe mental impairment, and that your gambling dependency is now in remission.  Dr Grech said that in his opinion, given the history that you had provided, that you had been severely clinically depressed at the time of the offending, and severe clinical depression would mean that you had struggled with rational thinking and distinguishing right from wrong.  Dr Grech referred to your suicidal ideation.  He said that the gambling dependency propped up your mood, and that the severe clinical depression was a link with your gambling, and the consequence dealing to cover your gambling losses. 

16Dr Grech said he had been treating you with cognitive behavioural therapy, and identifying triggering events in order to encourage relapse prevention.  He said that your thought processes were now clearer, and your mood had improved.  He thought that treatment should be ongoing for 12 months.  He said you were suffering under the fear of incarceration, and the loss of the ability to support the children was weighing heavily on you.

17Dr Grech was of the opinion that you might temporarily unravel if imprisoned, given your lack of contact with the family and the reality which might hit you extremely hard.  He said you would probably not be able to access psychological treatment in custody.  His opinion was that you would suffer more than the average person in the custodial environment.

18Dr Grech was cross-examined about the tests that he had used to assess your level of depression.  Passages from the record of interview in September 2014 were read to Dr Grech.  In those passages, you said that you had offended because of financial hardship and debts, including a debt of your partner's. 
Dr Grech agreed that there may be some discrepancy in motivation, given that you had told him that your offending was to cover gambling debts.  Dr Grech said that you had told him that you had stopped gambling when you were caught by the police.

19Dr Grech was asked about the passage in the second record of interview on 3 October 2014, when you said that you had stopped gambling when you were told that you could see your children, which was about 13 months before that record of interview, which would place it around Christmas 2013.  Dr Grech agreed that that was inconsistent with what he had been told.  He agreed that he might need to make some reassessment of your mental state given those matters.

20In answers to questions from myself, Dr Grech said that you may have had a touch of obsessive compulsive disorder in your behaviour.  This would be anxiety-based, and was often the case with gambling addictions.  He said you were suffering under a high level of stress with severe clinical depression, which would not permit rational thought.

21In re-examination, Dr Grech said that his opinion was based on a combination of what you had told him, and his observations of you.  He thought your offending was out of character, given that you did not have a criminal record. 

22Your counsel argued that there should be some application of the principles in R v Verdins (2007) 16 VR 269.  Your counsel argued that your moral culpability ought be somewhat reduced because of your mental state.  He also submitted that any time in custody would be very difficult for you because of your mental state.

23The prosecutor in sentencing submissions accepted that you were at risk of deportation, as you are not an Australian citizen.  If you were sentenced to a period of imprisonment of 12 months or more, then your visa under the current legislation would be cancelled.  You could appeal that decision, and it is uncertain whether you would ultimately be deported.

24The prosecutor accepted that you would suffer from some anxiety about your prospects of being deported from Australia, and the impact on your family.  The prosecutor submitted that there ought not be any application of Verdins principles.  The prosecutor referred to the decision in DPP v O'Neill [2015] VSCA 325, and said that a clear causal connection had not been established between an impairment of mental functioning and your offending.  The prosecutor submitted that there was insufficient cogent evidence, as the conclusions about your state were based on your self-reporting.  What you said in the records of interview indicated that your decisions as to what you had stolen had been those of a rational man.

25In respect of your gambling, the prosecutor submitted that the cases of
R v Grossi [2008] VSCA 270, and R v Wang [2009] VSCA 67, were relevant.  The impact of a gambling addiction could only be the absence of an aggravating motive, rather than any mitigating effect.  The prosecutor submitted that you were suffering from a milder form of depression now.  He accepted that your plea of guilty was earlier and well-prior to committal.  He accepted that this would have been a complex trial, and that you have no relevant prior history.

26The prosecutor further submitted that these offences were difficult to detect, and constituted a breach of trust over a period of about 18 months.  The prosecutor submitted that general deterrence and denunciation were very important sentencing considerations, with specific deterrence being important, although not as relevant as general deterrence and denunciation.

27Mr Levy, your offending was very serious.  The value of the property stolen was very large.  A very large number of items must have been stolen over a period of about 15 months.  The items were taken out of the warehouse and put into your ute.  You must have taken relatively small amounts at a time in order to remain undetected.  On your own admission, you tried to take higher value items.  You engaged in deliberate dishonesty and careful planning and organisation in the taking of the items and then on-selling them.

28Your thefts constitute very serious breaches of the trust of your employer, in such cases general deterrence is a very important sentencing consideration in order to deter other employees from taking the risk of stealing from their employers. 

29There are a number of matters to be taken into account in mitigation of sentence.  You pleaded guilty early.  You saved the expense and difficulties of a potentially complex trial.  Your plea of guilty has a high utilitarian value, and you are entitled to a significant discount.  I also accept that your plea of guilty is an expression of your remorse.  You are entitled to mitigation for the full and frank admissions you made to the police.

30I consider that your prospects of rehabilitation are reasonably good.  You have no prior criminal history involving dishonesty.  You have been remorseful and cooperative.  You have engaged in counselling with Dr Grech.  You have taken steps towards your rehabilitation.  Your depression has been improving prior to your incarceration.  You had stopped gambling some time before the offending ended.  You have a history of hard work.  You have made efforts to support your family.  You have spent a lengthy period working as a firefighter, and later used those skills to rescue a person.  Those matters suggest that you have reasonably good prospects of rehabilitation. 

31I turn to the application of Verdins principles and the subject of mental impairment.  I do not consider that your gambling addiction in itself constituted a mental impairment such that your moral culpability ought was reduced, or such that general deterrence ought be moderated.  Your offending was systematic and well-organised.  On what you said to the police, you stopped gambling well before the offending ceased.  You also initially told the police you stole to cover debts.  I note Dr Grech's evidence that there might be a discrepancy in what you had told him and what you told the police.

32I do not accept that gambling was your sole or continued motivation, or that because of the gambling addiction, your judgment was impaired in a way that would attract the application of Verdins principles. 

33Having carefully considered Dr Grech's evidence in respect of your depression, I accept that you had suffered a major depressive disorder.  I am satisfied that your gambling began in the context of your depression after you were unable to see your children. 

34Your depression continued until you commenced seeing Dr Grech to a moderately severe clinical depression, which prior to your incarceration was at a mild level.  Your offending extended over many months, during which you were working and stealing in a systematic and organised fashion.  You also stored and sold the items in an organised way.  You were clearly capable of making rational decisions, but I accept that your depression meant that your capacity to resist the temptation to do the wrong thing, or to tell right from wrong, was reduced to a degree.  To that restricted degree, your moral culpability is reduced.  Your depression does not reduce your suitability as a vehicle for general deterrence.

35I have taken into account in mitigation that your current level of depression will make imprisonment more difficult for you.  You have written a letter, which is tendered as Exhibit 3.  In that letter, you describe how you are feeling in custody whilst on remand.  It is clear that you feel as though you are utterly depressed, having now been incarcerated.  It is clear that you are worried and anxious about your relationship with your partner.  I am advised by your counsel that your relationship with your partner is in difficulties due to the full disclosure of your offending.

36I am also advised that Dr Grech has been able to visit you in custody, and that he is able to see you from time to time.  You have said, and I accept, that you will be prepared to continue counselling with him.

37One of the matters that you are concerned about is the prospect of deportation.  You are now 43 years old.  Your counsel has advised, and I accept, that you no longer have any ties in New Zealand.  You have no support networks in New Zealand.   I have taken into account that your anxiety about your prospects of deportation will make imprisonment more difficult for you.  I have also taken into account that your anxiety about your inability to support your family will make imprisonment more difficult for you.

38A sentence of imprisonment is clearly warranted for the purposes of just punishment, denunciation and general deterrence.  Specific deterrence ought be a less significant sentencing consideration, given your reasonably good prospects of rehabilitation.  I have had you assessed for a community correction order, having told you that I was considering the option of imprisonment without a community correction order, or imprisonment with a community correction order.  You have been assessed as suitable for such an order.

39Given the objective seriousness of your offending, and taking into account matters in mitigation, I do not consider that a sentence of imprisonment of 12 months or less to be followed by a community correction order would be sufficiently severe to meet the sentencing considerations to which I have referred.

40Can you please stand up, Mr Levy?

41On Charge 1, you are convicted and sentenced to two years and six months' imprisonment;

42On Charge 2, you are convicted and sentenced to one year and six months' imprisonment;

43On Summary Charge 201, you are convicted and sentenced to three months' imprisonment.

44The sentence on Charge 1 is the base sentence.  Six months of the sentence on Charge 2 is to be served cumulatively on the sentence on Charge 1.  The total effective sentence is three years' imprisonment.

45I declare that the period you are required to serve before being eligible for release on parole is one year and eight months.  I declare that you have served 22 days of this sentence by way of presentence detention.  But for your plea of guilty, I would have sentenced you to a term of imprisonment of four years and six months, with a non-parole period of three years and three months.

46I am also making the order for the taking of a forensic sample from you.  I have made that order because of the seriousness of the circumstances of your offending, and that the making of the order is not opposed.  I am required to tell you, Mr Levy, that you must cooperate with the authorities when they come to take a sample.  They will come to take a sample by a saliva swab, buccal swab, from your mouth.  I am sure that you will cooperate.  If you do not cooperate, they are entitled to use reasonable force and to take a blood sample.  As I have said, I am sure that you will cooperate. 

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