Director of Public Prosecutions v Maher

[2014] VCC 1287

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 12-01940

DIRECTOR OF PUBLIC PROSECUTIONS

v

GAYLE MAHER

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	13 August 2014
CASE MAY BE CITED AS:	DPP v Maher
MEDIUM NEUTRAL CITATION:	[2014] VCC 1287

REASONS FOR SENTENCE
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Subject: two charges of theft -  obtain financial advantage by deception- sentence indication-plea-no priors- delay-restitution- good prospects-
Catchwords:
Legislation Cited:
Cases Cited:
Sentence: total effective sentence of 24 months  wholly suspended for two years. 

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr B. Nibbs
For the Accused	Ms K. Ballard

HIS HONOUR:

1Gayle Maher, you have pleaded guilty to three charges, two of theft and one of obtain financial advantage by deception.  The circumstances of your offending is contained in a lengthy summary of prosecution which was Exhibit B on the plea.  This document will be retained on the court file for future reference.  It is very detailed, over some 1600 paragraphs, outlining your course of conduct during the offending period.

2Briefly stated, you commenced employment as an administration controller and property manager with Aitken Pty. Ltd, a real estate agency, and reported directly to Mr Aitken.  You were responsible for the management of all client monies, issuing receipts and banking them into the company trust account.  These sums were for rental or rental deposits, usually received over the counter at reception in cash at that time from tenants or administrative staff.  A regular procedure was adopted.  Its steps are outlined in the summary in relation to the handling of that cash.  The business was audited by a company on a yearly basis.  Random audits were also conducted by consumer affairs Victoria, a group operating within the Department of Justice.  Such an audit was conducted in July 2007 and you were informed prior to the audit that it was occurring. 

3The Department of Justice auditor noted an un-presented deposit for over $100,000 in the July end of months reports and when Mr Aitken was notified of this discrepancy he directed the auditor to you.  You rectified that matter in August 2007 but in September of that year another audit was to be conducted by a different audit company.  You and your staff had no notice of it.  The same un-presented deposit from July was again identified and when Aitken again directed his orders to you this time, the auditor was not satisfied with your explanation.

4He further investigated and found another anomaly and a significant deficiency was detected.  Police were notified.  When questioned by police you denied any involvement in the thefts.  Unbeknown to you and others at the agency, including Aitken, the director, the designer of the accounting system used by the agency, had incorporated a hidden timestamp into the software and this enabled details of the relevant transactions to be obtained.  You would receive rent in cash and enter a negative transaction in the arrears account that satisfied the double entry accounting requirements of the computer program.  You did this on 16 occasions for a total of over $119,000.  This was the basis of Charge 1.

5When the practice of receiving cash changed ,you could no longer take rent money.  You then began taking cash bond monies in the same way.  You would receipt the cash bonds, then enter a negative transaction as before.  You did this on five occasions for a total of just over $5500, the basis of Charge 2.

6The negative transaction effect countered the positive receipt so that there was not monies to bank, allowing you to appropriate the money, all of which, when it was stolen, were issued a receipt so that the landlords were paid from the trust account as were management fees.  You backdated many transactions to disguise when the transactions had occurred.  You also endeavoured to alter some leave and holiday entitlement dates to give yourself an alibi.

7When interviewed in September 2007 and again in June 2010 you denied involvement in any thefts.  Although you had remained in substantial personal debt , you had gone on overseas holidays and other monies were spent providing for your family.  By the 2010 interview you were employed by Ray White Real Estate as a property manager at first, then as senior manager.  You were again in charge of bond payments claims and paying funds back to tenants when they vacated the premises.  Investigators found two transactions that showed a direct transfer into your bank account.  Your employment was terminated the same day after it was discovered that a significant amount was missing.  A subsequent audit revealed missing bond and rental monies totalling over $44,000 which you had appropriated for personal use.  In July 2010 you signed an agreement to repay the amount of $43,695.  This course of conduct, the subject of Count 3, represents 36 occasions of theft in all. 

8The investigators had discovered that in relation to the Aitken transactions that on 52 occasions the time between the receipt to the trust account and the negative transactions with the error account occurred within a very short time, within minutes, with 35 of them occurring almost immediately.  In relation to Ray White you endeavoured to cover up by your deceptions with a relatively intricate series of transactions including false file notes.  You also arranged for bond claim moneys to be paid into various bank accounts controlled by you or in the name of your children or partner.

9These offences are examples of dishonest and deceptive conduct which fundamentally undermines the economic relationship of trust and honesty which are the foundation of commercial and financial arrangements in our community.  Not only are they a breach of trust but strike at the structure of financial transactions upon which the economic security of members of the community is founded.  Such a breach accompanied by dishonesty and deception calls for the court to denounce this conduct as totally unacceptable.  Those who are like-minded should clearly understand that they will be detected and be brought to penalty and cost. 

10In this sense general deterrence is primary in these matters.  In setting an appropriate sentence in this matter I have also considered your personal circumstances and all other relevant sentencing principles.  The course of the prosecution in such matters is never simple.  The investigations required are often lengthy and complex and not all matters can be adequately uncovered or demonstrated for that matter.  This led in this case to a sentence indication that upon a plea of guilty certain consequences would follow.  I am bound by that indication.  In these circumstances I accept that the plea of guilty facilitates considerably the course of justice.  It has a powerful utilitarian benefit of avoiding what would have been a lengthy trial or trials and the inconvenience and cost to many.  It is also, I accept, motivated by regret and accompanied by remorse.  But for this plea a different disposition would have been appropriate.  Substantial savings to the community within the context of some acknowledged deficiencies  in the prosecution case have meant that the outcome of this plea will be as indicated according to the statutory scheme.

11You are the mother of two children, now aged 22 and 16, and both reside with you.  You are no longer in a relationship since earlier this year.  You have no prior criminal history or subsequent or pending matters.  I take this and your plea into account when assessing your prospects for rehabilitation and I assign little weight to specific deterrence in this case.

12You have a longstanding and excellent work history which is to your credit.  You commenced work in 1989.  Apart from two periods of maternity leave you have been consistently employed.  Upon resigning from Ray White you have been employed by Kent Corporate Relocations until June 2013 and you now work with Xero Australia as a senior national facilities manager.  This history must of course be balanced with the aggravation of the theft being from an employer.  However, I accept that the chances of re-offending are low and that your prospects are good.

13There has been a significant gap of time since the commission of the offences and the final disposition of the matter, since delay is often of the making of the difficult and factual circumstances, usually stemming from the criminality which you have engaged in.  However, the time has elapsed and it is significant and it becomes an important factor when one looks to what occurred in the intervening period.  In this context I accept you have taken steps to redress your offending.  You have completed restitution in total to Ray White Real Estate and the required amount of over $43,000.  You are willing and accept to pay the outstanding compensation to Steven Aitken Real Estate and you understand the obligations upon you and inevitable consequences of the order for compensation and its effect.  In this context I take into account the victim impact statement written by Mr Aitken, the principal of the agency.  Your conduct has had a very serious and deleterious impact on him and his family.  Apart from the flagrant breach of trust and consequent sense of betrayal and frustration, these events and their long sequela have caused anxiety, stress, strain in his family and on his company.  Your criminality affected morale in the staff and financial security of the company and to Mr Aitken personally.  This was relieved somewhat by insurance payout but a significant sum is outstanding.  Other costs have been substantial, increasing accounting, security and insurance costs, the repercussion of all the dishonesty and deception which follows these type of offences.  I take this impact into account in deciding that imprisonment is the only viable and appropriate disposition.

14I have received three written testimonials on your behalf.  These letters attest to your wide band of friends who respect and trust you.  Some of them have entered into loan arrangements with you which you have honoured.  One of them, your mother, wrote about it in a reference.  Your former de facto wrote of your ongoing friendship and support.  He attests to your devotion to your children in difficult periods during which their father did not assist you at all.  Your best friend has also written of the impact of this predicament over the last three years, including at a time when your son was seriously injured.  I take all these matters into account and I note also that you have agreed and are prepared to meet compensation and that you agreed to have a charge over your assets, both to secure proper representation, which has now been lifted and which, given the level of equity, will enable you to begin to make proper restitution in order to fully discharge the order.

15Given the restraint upon your assets, these are not likely to be dissipated and so it is hoped that they will, with some diligence on your part, repair the damage done, at least as far as the financial side of it is concerned.  In my view, the aims of the sentence are adequately met by a wholly suspended sentence.  This means that this sentence will hang over your head for a period of time during which any criminal activity will mean that you will breach this sentence and will return you to the court for sentence on the breach and to be re-sentenced on these offences.

16On Charge 1, you are convicted and sentenced to 18 months' imprisonment. 

17On Charge 2 you are convicted and sentenced to six months' imprisonment.

18On Charge 3 you are convicted and sentenced to nine months' imprisonment. 

19I order that two months on Charge 2 and four months on Charge 3 be cumulative upon Charge 1 making a total effective sentence of 24 months or two years.  That period will be wholly suspended for two years. 

20I have signed orders for compensation to Vero Insurance in the sum of $50,000 and to Stephen Aitken in the sum of $69,046.97.

21I should add that but for your plea your sentence would have been of two years' imprisonment. 

22The relevant addresses of Aitken Real Estate and Vero Insurance are within the body of the order.  I will hand them back.  Are there any other orders that are required, Mr Nibbs?

23MR NIBBS:  No, Your Honour.

24HIS HONOUR:  Thank you. 

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