Director of Public Prosecutions v Lloyd

[2017] VCC 1417

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 1700825

DIRECTOR OF PUBLIC PROSECUTIONS

v

KATE LLOYD

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	28 September 2017
DATE OF SENTENCE:	2 October 2017
CASE MAY BE CITED AS:	DPP v Lloyd
MEDIUM NEUTRAL CITATION:	[2017] VCC 1417

REASONS FOR SENTENCE
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Subject:
Catchwords:  Obtaining Financial Advantage by Deception
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Livistanos
For the Accused	Mr I. Crisp

HIS HONOUR:

1Kate Lloyd, on 28 September 2017, you pleaded guilty to seven charges of obtaining financial advantage by deception on indictment No.H10911623.  The maximum penalty for each of those seven charges is ten years' imprisonment.

2Your offending predominately took place between 29 June 2010 and 31 December 2014.  You were employed in the trusted positions of payroll officer and accounts payable administrator.  You have offended against two separate employers.  In total, you have misappropriated $225,945.76 from your two employers.

3The circumstances of your offending are as follows.

Charges 1 to 3. 

4Your victim in this case in these three charges is SJ Higgins Pty Ltd.

5You commenced employment with SJ Higgins Pty Ltd as payroll officer on 7 February 2005.  You left your employment with this company in September 2011.  Over the period of your employment with SJ Higgins, you obtained a total of $73,443.91 by deception.

6Your payroll officer duties included administering the payroll system and employee leave entitlements.  You also managed some company expense accounts, petty cash claims and prepared client invoices and managed the archiving of the company's files.  You prepared the payroll reports and submitted them to the two directors for authorisation and payment.  Once the authorisation was made by the two directors, payments were then distributed into each employee's nominated bank accounts.

7Commencing in June of 2010, you started creating false payroll reports and directing payment via the ABA Software to your personal bank account.  You concealed your actions in various ways.  For the initial transactions, you created false timesheets and the names of ex-employees or an employee who was on leave.  Sometimes you attributed additional work hours to an employee's payroll report and directed the additional payment to your own account.

8At other times, you would add annual leave entitlements to an employee's ABA file where no annual leave had in fact been taken, directing the legitimate payments to the employee's account and the fraudulent annual leave payments to your own bank account.  You would do the same in relation to onsite allowance and overtime, adding these to an employee's file and crediting the false payments to yourself.

9You tried to cover up your deception by voiding the transactions in the company's accounts and re-crediting the leave entitlements to employees.  This caused additional superannuation payments to be made to the superannuation funds of the employees and an audit of the accounts traced your deception through these transactions.

10During your employment at SJ Higgins, Mrs Lloyd, you caused the following fraudulent payments to be deposited into your account.

11In 2010, which is Charge 1, there were eight deposits totalling a sum of $9,165.68.

12In the year of 2011, which is Charge 2, there were 26 separate deposits totalling $51,335.40.

13They are the Charges 1 and 2.

14Charge 3, over the course of your employment at SJ Higgins, Mrs Lloyd, you also attributed additional annual and sick leave entitlements to yourself.  You were entitled 20 days of annual leave over the 52 weeks, totalling 1,004.45 hours over six and a half years of service there.

15You then recorded a total of 1,267 hours of annual leave, meaning you overpaid yourself $8,274.99.

16You were then entitled to ten sick days leave each 52 week period, a total of 501 hours over the period of your employment.

17You recorded a total of 649 hours of sick leave, meaning that you were overpaid $4,667.84.

18That is a financial advantage by deception, Charge 3.  The total of the Charge 3 deception was $12,942.83.

Charges 4 to 7.

19The victim of your offending in these charges is Tek Ocean Energy Services Pty Ltd.  In September 2011, you left SJ Higgins to take up your position at Tek Ocean as a payroll officer.  You remained as payroll officer for 12 months and then became the accounts payable administrator for a two year period, until you left that company in December 2014.  You offended against this company for the duration of your employment.

20At Tek Ocean, the system was that you would enter the details from timesheets onto the company's accounting system for approval by the chief financial officer, Steven John Gordijin.  The CFO, Mr Gordijin, would approve payments and then payments were made to bank accounts through the online banking system.

21Commencing on 14 October 2011, approximately a month after you had joined the company, you started to direct additional payments from the payroll system into your bank account.  Initially, you did not attempt to conceal these payments.

22After the first few payments, you started to conceal the payments in various ways.  Sometimes you attributed additional work hours or allowances to an employee's payslip and directed the extra pay to your own account.  At other times, you would create a false payslip for an employee and direct the whole of the false payment to your account.  On one occasion, you created a false superannuation payment, which was approved and then deposited into your account.  Payments were mostly made in the name of casual employees whose wages and allowances varied.

23After 12 months of employment, as the sole payroll officer, Mrs Lloyd, you started working in the accounts section of Tek Ocean where you were responsible for accounts payable.  In this role, you would receive an invoice from a supplier and enter it into the company's accounting system for approval by the manager.

24Once an invoice became due, you would then upload the payment onto the online banking system for the chief financial officer to approve as part of the bulk payment.  Once that was approved, the bulk payment would be distributed to various suppliers' bank accounts recorded in both the accounting system and program, and the online banking system.  When a supplier's invoice was paid, a remittance advised was sent automatically by email to the supplier.

25After you had moved into the accounts team, you continued to misappropriate funds using similar methods.  Occasionally, you simply directed the payments into your own bank account and recorded the payment under the name of a supplier.  At other times, you created false documentation such as false invoices, remittance advices for false invoices and false purchase order entries, and credited the payments to your own bank account.

26For some payments, Mrs Lloyd, you altered the legitimate supplier invoices by increasing the amount payable.  You would then credit the additional payment to your bank account.  The fraudulent payments were mostly attributed to suppliers whose invoices varied from month to month or who worked infrequently for your employer, Tek Ocean.

27For each fraudulent deposit made into your bank account, either through the payroll or accounts, you manually altered the bank account details recorded in both Tek Ocean's accounting program, as well as the online banking system.  Sometimes this involved changing the BSB and account numbers for legitimate employees or the suppliers.  Sometimes it involved adding your own BSB and account number as an additional recipient.  After fraudulent deposits were made, you would then have to change the details back again.

28During the course of your time at Tek Ocean, you caused the following fraudulent payments to be deposited into your bank account.

29In the year 2011, which is Charge 4, there were five deposits totalling $1,472.68.

30In the year 2012, which is Charge 5, there were 40 separate deposits totalling $44,187.

31In the year 2013, which is Charge 6, there were 23 separate deposits totalling $46,665. In the year 2014, which is Charge 7, there were 22 separate deposits totalling $55,530.75.

32The total of your deceptions on Tek Ocean was $152,501.85.

33As I said, you ceased work a Tek Ocean on 19 December 2014.

34On 15 April 2015, Mr Gordijin received an automated remittance advice which had been sent to your work email indicating that a supplier payment had been made to you by Tek Ocean.  Later that evening, you sent an email to Gordijin from your personal email address stating that you received the payment of $1,963.50 from Tek Ocean in error.  You transferred the money back to
Mr Gordijin.

35No doubt, you were hoping that would be the last you heard of your offending.

36Mr Gordijin thought there was a problem with the accounting system at Tek Ocean.  He ordered an audit of the company's accounts.  The audit uncovered your offending.

37Mr Gordijin contacted you and confronted you about the payments made to your account.  You initially denied any knowledge of the payments to your account.  You then admitted you were responsible, but said you had some financial hardship and you were ashamed.

38The investigation into your criminal activity continued for a year.

39On 2 March 2016, you attended Dandenong Police Station by appointment for a record of interview.  You exercised your right to make no comment record of interview.  You were charged and released on bail.

40The first committal mention was set down for 28 April 2017.  On that day, you entered a plea of guilty and the matter proceeded by way of straight hand-up brief procedure.  To date, you have spent no time in custody.

41I turn to the victim impact statement.

42The officers of the first victim of your offending, SJ Higgins Pty Ltd, declined the opportunity to file a victim impact statement.  Your husband still works there as I understand it.

43Mr Steven Gordijin prepared a victim impact statement dated 28 August 2017.  He was the CFO at your second employer.

44It was read into the record by the prosecutor.  Mr Gordijin set out the gross breach of trust you have perpetrated upon the company “family” as he described it.  He was the person you reported to and he states, he nearly lost his job as a result of your deceptions.  He was demoted from a quasi-managing director position to a CFO.

45He set out the great stress and shame your actions placed upon him.  Most significantly, he sets out that the legacy of your deception is the complete breakdown of trust between fellow workers, which has fractured the easy going, friendly workplace at Tek Ocean.

46The loss of money of approximately $150,000 is only part of the impact of your offending in that company.

47I turn to your personal circumstances.

48You are now 42 years of age.  At the time of your offending, you were between the ages of 35 and 39 years old.  Your mother passed away in 2010.  Your father is alive, but you do not enjoy a close relationship with him.  You are married and have two children aged 14 and ten years old.

49After the birth of your daughter in 2007, you experienced feelings of depression and anxiety.  At that time, you were prescribed medication and referred to a psychologist.  You have given a history to doctors at the Maroondah Hospital that you had suffered depression and anxiety back to your teenage years when you were sexually assaulted by a neighbour.

50You attended Mentone Girls Grammar and completed Year 12.  Between 1992 and 2004, you worked for ADJ Contracting as an office administrator.

51In 2004, you commenced your work at SJ Higgins.  Your offending commenced in 2010 around the time of your mother's death.

52In 2011, you started work with Tek Ocean.

53In January of 2015, you started work at Acushnet, but lost that job after the frauds of Tek Ocean were discovered in 2015 and they notified your then current employer.

54In April of 2015, you were admitted to the Maroondah Hospital after your first suicide attempt.  You were admitted to Casey Hospital on 28 May 2015 after presenting with suicidal ideation and auditory hallucinations.  Your medications at that time were changed to this Desvenlafaxine and Ziprasidone.  On that admission, you gave a history of hearing voices since you were 18 years old.

55On 16 February 2016, you presented at Eastern Health after a further suicide attempt.  You had complications from lap band surgery at that time, according to the note in the hospital records.

56You remained in hospital for some two weeks.  At that time, you were diagnosed as suffering from depression and anxiety.  There is also a hospital note querying a diagnosis of post-traumatic stress disorder, secondary to CSA, which is child sexual assault.

57A report dated 30 August 2017 by Dr George Camilleri, psychiatrist, was tendered on your behalf.  He notes your third hospital admission on 21 August 2017 as a voluntary patient with suicidal ideation.  Dr Camilleri states, your suicidal ideation is in context of flashbacks of sexual abuse when you were young, and to a lesser degree, to your charges for embezzlement. 

58Dr Camilleri diagnosed your condition as borderline personality disorder in the context of child sexual abuse and chronic low mood due to these court proceedings.

59You attended PARCs in Narre Warren for two weeks since your release from that hospital and are now under the care of Casey Hospital outpatients.

60In 2017, you made a statement to police about the sexual abuse offending against you.  Investigations are ongoing and no charges have been laid at this stage.

61You are currently employed at an aged care facility as I understood it, as a carer.  Evidence was called from Lorraine Mucis, Rosslyn Slater, Stacey Rolf and Lois Cox.  Each of these witnesses speak of your dedication to your family and your depression.

62Your auditory hallucinations are a recent piece of history to them.  They attest to not observing any lavish holidays or other signs of lavish living in the sense living it up on other people's money.  You expressed surprise to Mrs Mucis as to how much money you had in fact defrauded.

63You have good and decent family and friends who support you and they will continue to support you in the future. 

64I turn to sentencing considerations.

65The basic purpose for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation and denunciation of your actions, and the protection of the community.

66In sentencing you, I must have regard to a range of factors such as the seriousness of your offending and your culpability for it, and your personal circumstances.  I am also required to balance the interests of the community in denouncing your criminal conduct with the interest of the community in seeking to ensure, as far as possible, that you as an offender are rehabilitated and reintegrated into society.

67I am also required to take into account current sentencing practices in fixing your sentence.  That enquiry is directed particularly but not exhaustively to the kinds of sentences imposed in comparable cases and the statistics relating to those sentences.

68I have considered the statistics and current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case, as indeed they are from one another.

69I am mindful of the provisions of the Sentencing Act. In particular, s.5(4C) which directs the sentencing court to consider whether a community corrections order can achieve the purpose for which this sentence is to be imposed.

70I have reviewed the case of Boulton considering if a community corrections order would be appropriate in your case, and I have had you assessed for that community corrections order.  You have been assessed as suitable.  That is not the end of the matter.

71You have pleaded guilty to these charges.  Your plea of guilty was indicated at an early stage.  Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice.  There is a certainty of outcome and the resolution of the substantial issues is raised by your offending.

72Your plea allows for the preservation of the court and police resources to deal with other matters.  Your plea also vindicates the public confidence in the legal process set up to protect the community.  Your plea is also a clear acknowledgement by you that you accept responsibility for your criminal behaviour on these occasions.  Your plea also recognises you are willing to facilitate the course of justice in the community and I accept that your plea of guilty to these charges indicates and demonstrates some remorse on your behalf.

73Mr Crisp conceded that Verdins Principles had limited application in your case, due to the length of time that your offending covered, the sophistication of your deceptions and that you offended against two separate employers.  That concession is properly made on your behalf.

74Mr Crips relied on Verdins Principles in the following aspects.

75(1), Your psychological condition may have a bearing on the type of sentence and the conditions of its service.

76(2), Your psychological condition is such that a sentence will weigh more heavily on you than others of normal mental health.

77(3), There is a serious risk that imprisonment may adversely affect your current mental health.

78I accept that a term of imprisonment will weigh more heavily upon you as an offender of normal mental health.  I take this matter into account when fixing your sentence.

79You are a person of previous good character and I take that into account in assessing the appropriate penalty for this offending.

80I regard your prospects of rehabilitation as good if you receive the appropriate mental health management and care.

81Your offending is serious.  You have persisted in your deceit of two employers in a systematic and sophisticated manner.  You offended for four years.  You were in a key and trusted position in each of these companies.  You could and did cover your tracks because of the trusted position and role you held with each of your employers.

82A very small amount of the money has been repaid by you.  On the basis of your plea, there is little chance your former employees will recover any of the funds from you.

83There is no real explanation for your offending.  On the evidence, your motive for this offending was to provide a better life for your family.

84In the report of Sophie Simone, psychologist, dated 29 August 2017, you stated that your suicidal ideation is ongoing and your mental health is unstable.  She notes the possibility of a serious self-harm or suicide in relation to the outcome of your legal challenges as a likely result.

85At the time of that report, you were still in hospital under the care of Dr Camilleri.  Your medications have been adjusted and you are now back at home and work and you are stable.

86Dr Arnould, your general practitioner, gave evidence on your plea that your condition is now stable on your current medication regime of Thyroxine, 200 milligrams, Lurasidone of 80 milligrams, Quetiapine a total of 400 milligrams, Pristiq of 400 milligrams and Imovane sleeping tablet.

87Your mental health diagnosis of depression, anxiety has been longstanding.  You are currently medicated for these conditions and as I say, your condition is stable.

88You have been diagnosed by Yogendra Agruwal, in a report dated 11 July 2016, as suffering from psychotic depression and chronic complex post-traumatic stress disorder.

89Dr Simone in her report diagnosed your condition as major depression with post-traumatic stress disorder.  She also states you have a borderline personality disorder.

90I note that Dr Camilleri also diagnoses you as suffering from borderline personality disorder.

91Your current medication regime has stabilised your psychiatric conditions according to the evidence of your general practitioner.  If your medication is maintained, then your psychiatric condition will or should remain stable in custody.

92The sentencing principles of general deterrence, just punishment and denunciation of your actions are to be given due weight in sentencing you.  The balancing factors in your favour are your previous good character, your plea of guilty and you diagnosed and treated depression, anxiety and post-traumatic stress disorder.

93The offending against each of your employers is two sets of continuous periods of offending.  A combined sentence of a CCO and imprisonment is the appropriate course as a total sentence in this case.

94Could you stand please?

95On Charges 1, 2 and 3, you are convicted and placed on a two year community corrections order that commence immediately upon your release from prison.

96The conditions are (1) supervision.  (2) Assessment and treatment for mental health. (3) Assessment and treatment for medical conditions and that you are to report to the Community Corrections Service within 48 hours of your release from prison.

97On Charges 4, 5, 6 and 7, you are convicted and sentenced to an aggregate term of imprisonment of eight months.

98That is a total effective sentence of eight months imprisonment.

99But for your plea of guilty pursuant to Section 6AAA, I would have sentenced you to two and half years imprisonment with an 18 month non-parole period.

100I have signed the two compensation orders sought and I will sign the s.464ZF order when it is made available to me.

101I have signed three of those, thank you.

102Just to explain to you what that means, Mrs Lloyd.  The authorities are authorised to take from you a swab from your mouth in order to obtain a DNA sample.  Do you understand?  If you do not comply, they have the right to use reasonable force to obtain it.  All right.

103Thank you.  Is there anything else?

104COUNSEL:  No, Your Honour.

105HIS HONOUR:  Thank you.  If you will remove the prisoner, thank you.  Sorry, we have got to sign something.  Yes.  Sorry, I have got to have the CCO signed.  Sorry, just take a seat there, I am just preparing the CCO.

106Can you just check that, Mr ‑ ‑ ‑

107MR CRISP:  Yes, Your Honour.

108HIS HONOUR:  Thank you.

109Ms Lloyd, I will just announce these matters.

110This is a custody management issue.  I have just noted here that it is your first time in custody, that you have been diagnosed with depression, that you have suicidal ideation and that you are to be - you are on medication, all right?  You take note of that.

111Thank you for your assistance.  We will adjourn until 9.30 tomorrow.

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