Director of Public Prosecutions v Maslennikoff, Tania

[2013] VCC 167

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. 12-01721

DIRECTOR OF PUBLIC PROSECUTIONS

v

TANIA MASLENNIKOFF

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JUDGE:	HIS HONOUR JUDGE PUNSHON
WHERE HELD:	Melbourne
DATE OF HEARING:	15 February 2013
DATE OF SENTENCE:	22 February 2013
CASE MAY BE CITED AS:	DPP v Maslennikoff, Tania
MEDIUM NEUTRAL CITATION:	[2013] VCC 167

REASONS FOR SENTENCE
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Subject:  Obtaining by deception
Catchwords:            
Legislation Cited:    
Cases Cited:            

Sentence:                 Total Effective Sentence of 5 years and 2 months with non-parole period of 3 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J. Fitzgerald	OPP
For the Accused	Mr B. Bourke	Bullards

HIS HONOUR:

1       Tania Maslennikoff, you have pleaded guilty to 15 charges of obtaining property by deception and 3 charges of obtaining a financial advantage by deception.

2       The maximum penalty for each offence is 10 years imprisonment.

3       The prosecutor, Mr Fitzgerald, opened the circumstances of the offending in considerable detail.

4       I am not going to recite the factual details of the offending. I will attach the “Summary of Prosecution Opening” to these sentencing reasons.

5       With the exception of charge 14 your offending represents a course of similar conduct between May 2002 and August 2010.

6       Charge 14 is a charge of obtaining a financial advantage by deception and concerns you falsely obtaining just under $50,000 from a finance company to purchase a motorcar in 2007.

7       All other offending occurred in the course of you working as a bookkeeper. There are 4 businesses and associated individuals who are victims of this offending.

8       The indictment structure divided the offending against each victim into years with each year represented by a single rolled up charge.

9       

Victim, Andrew Welsh was a long-term family friend of yours.  He was a carpenter and in 2002, when your offending begun against him, he operated as a sole trader.  In 2006, on your advice, he started a company.  You were not formally paid for your work but you did receive carpentry work and cash gifts from Mr Welsh.  Between May 2002 and April 2008 you obtained payments totalling $474,083.28.  Of this sum only $67,503.75 was paid to meet tax obligations.  Also a total of $3546 had been paid back by you to

Mr Welsh or his employees.

10      

Accordingly, when the plea began last Friday the prosecution submitted that $403,033.53 appeared to have been used by you for your purposes.

Mr Bourke, who appeared for you, informed me that there was a live issue concerning $91,188.62 that you claim was credited to Welsh banking accounts which had not been included when identifying the financial loss to

Mr and Mrs Welsh and their business.  After discussion during the week agreement was reached between you and the prosecution that an additional  sum of $75,567.70 had been transferred by you to the credit of Welsh finances.  Accordingly, the sum of $403,033.53 should be reduced by $75,567.70 leaving $327,465.83.

11      The rolled up charges concerning the Welsh business (AWBS), where the victims are Mr and Mrs Welsh, each consist of cheques paid into an account operated by you on the basis that they represented amounts owing to the Australian Tax Office as tax obligations for the business and under the belief that the money would be applied to the taxation obligations.

12      Your dishonesty had serious tax implications for Mr and Mrs Welsh and the business.  In April 2008 Mr Welsh’s wife Anthea, spoke to a friend about your practices.  The friend inspected the business records and discrepancies were identified.  A few days later Mrs Welsh spoke to a representative of an accounting firm whom you had previously enlisted to assist with ATO enquiries.  Mrs Welsh was informed of a taxation debt of about $109,000.  The police were informed.

13      

Victim, Gregory Watt is the owner of a company trading as a screen-printing company business.  It operated from a small factory in Seaford.  You were engaged as a bookkeeper in 2003 and over the next 5 years your working hours were significantly reduced.  Between 2002 and 2008 you obtained $162,713.62 of which you paid back $9623.  No money was used to pay tax obligations.  In 2007 you engaged the same accounting firm you had with

Mr Welsh to assist with taxation obligations.  Eventually, in 2008, it was this accountant who contacted Mr Watt advising him of a tax debt he was unaware of.

14      Victim, Peter Rigby is the owner of a sign writing business.  He employed you in 2002 but not on a set wage.  Your role was to manage the bookkeeping records of the business and provide the accountant with records required to complete the BAS and tax returns.  In 2004 you encouraged Mr Rigby to transfer part of an inheritance for use in meeting business expenses.  You then deposited sums from this account into your own account.  A single transfer of $65,000 was made in 2004 and sums totalling $36,750 were transferred between late 2004 and late 2005.  Two days after the transfer of the $65,000 you transferred $10,000 back into Mr Rigby’s account.  In 2005 amounts of $700 and $500 were also transferred back into Mr Rigby’s account, Aaron Signs.  In 2008 Mr Rigby was told by Mr Watt that you had stolen from him, that is Mr Watt.  Mr Rigby was also advised by the ATO of an outstanding tax debt.  Mr Rigby spoke to you and then had his books checked by another bookkeeper.

15      Mr Welsh and Mr Watt spoke to police in May 2008 and an investigation began.  You were interviewed and made no comment.

16      

Victim, Wayne Harris operated a business installing automatic gates mostly on farms but also residential properties.  He met you in 2005.  In August 2007 he separated from his wife, who had been his bookkeeper.  In May 2008 you told Mr Harris that you had cancer and needed someone at your home before the hospital would allow you to live there.  He moved in, paying board for a room and meals.  You confessed to Mr Harris that you had laundered over $500,000 from a GST account belonging to 3 clients.  You also told him of the fraud concerning the car.  Mr Harris’ accounts were a shambles since his wife ceased bookkeeping.  You offered him advice and, in time, took over the management of his finances.  This continued after he ceased living at your premises.  You were not paid and he believed you acted out of friendship.  In 2009 you transferred seven amounts totalling $8,314.85 and in 2010 you transferred 18 amounts totalling $8,040.83 for purposes unrelated to

Mr Harris’ business and to your financial advantage.

17      This is a very brief summary of the facts constituting the offending.

18      The offending is very serious.  The betrayal of trust is grave. The offending spans a very long period and involves in total a very substantial sum.  Clearly, your fraudulent conduct after police involvement and interview is very worrying.

19      Of course you must benefit from your pleas of guilty.  I accept that you indicated an intention to plead guilty expeditiously.  A case like yours requires care on the part of your advisers before appropriate advice to plead guilty. Had the matter been contested I expect it would have required much time and expense.  Accordingly, time and expense and of course the need for witnesses to give evidence has been spared.  I accept that by pleading guilty you have facilitated the course of justice and accepted responsibility for your conduct.

20      Victim Impact Statements from Mrs Welsh, whose husband is now deceased, Mr Watt, Mr Rigby, Mr Harris and Angela Campbell on behalf of the victim finance company, were tendered.  I will make the various orders sought including the compensation orders.  It is to your credit that you consented to me making these orders.

21      The impact on your victims has been very considerable.  I was cautioned by Mr Bourke not to place excessive weight on the moving statement of Mrs Welsh, who blames you for her husband’s decline and resort to alcohol as a result of his financial problems and business failure.  I accept that the weight given victim consequences needs to be kept in proportion but as already noted your capacity to win the trust of others and then betray that trust is a very serious aspect of your offending.

22      Evidence was led of statements made by Mr Watt and Mr Harris concerning their regret that things had come to the stage they had where you face prison.

23      You have relevant prior court appearances. In 1987 you were given an adjourned bond for obtaining property by deception (10 charges); in 1988 you were fined for 4 charges of obtaining property by deception and given an adjourned bond for an additional 30 charges of obtaining property by deception; in 1989 you were given suspended terms of imprisonment for 5 charges of obtaining by deception and in 1992 you were again given a suspended term of imprisonment for obtaining by deception.  Accordingly, there seems to be a gap of about 10 years before the current offending began.

24      A number of character references were tendered on your behalf.  The writers consider you to be loyal and trustworthy, big hearted and generous amongst other qualities.  These are glowing references.  Of course they need to be read in the context of your offending.

25      Character evidence was also called.  These witnesses spoke of your deteriorating health around 2003 at the time of the Youth World Cup.  As I understood you became reclusive thereafter and in the 2006 – 2008 period, in particular, your weight was drastically reduced to the point of extreme emaciation.  I accept that you have a close and loving relationship with your young child and your mother.

26      A medical report and attached records was tendered as was a psychological report from Julie Brown.  Ms Brown also gave evidence.

27      The medical report and attached records refers to your laparoscopic gastric band procedure in 2006 and ongoing complications together with your collapse in 2008 and subsequent diagnosis of hypokalaemia, catatonic depression and suicidal ideation.

28      Ms Brown has treated you since early 2009 and had seen you on 44 occasions at the time of the plea submissions last Friday, 15 February.

29      She has been informed of your medical history and has access to medical records.

30      She outlined your background noting a somewhat dysfunctional childhood. Your grandmother was primarily responsible for raising you.

31      You left your mother’s home aged 16 taking a younger brother with you to protect him.  You suffered guilt for not removing a sister with you also.

32      Your education was very limited and you worked to support your siblings.  You received training in bookkeeping.

33      You had children young.  Your daughter, aged 23, and son, aged 21, attended court to support you as did your son’s girlfriend.  The latter two live with you and your partner.

34      You and your partner had a child two years ago.  You also care for your mother.

35      You have complex health problems and Ms Brown found it difficult to confidently identify your history prior to first treating you.  Important to your background are the surgical interventions you have undergone to address your weight.  In 2006 you suffered severe potassium deficiency; hypokalaemia.  It was in this setting that your physical and mental health declined particularly over the next 2 years.  Ongoing surgery for your bariatric condition has continued.

36      Ms Brown expressed views concerning your deteriorating mental health particularly in 2006, 2007 and 2008 before she began treating you in early 2009.

37      Currently, Mr Brown states, you meet the criteria for Adjustment Disorder with both Mixed Anxiety and Depressed Mood – severe and chronic.  You also meet the criteria for Panic Disorder with Agoraphobia.

38      You are currently severely depressed, reporting strong suicidal themes.  You avoid leaving your house.  You clearly need close monitoring.

39      I accept that you suffer physical and psychological problems that will make imprisonment particularly difficult for you.

40      It was accepted of your behalf that a sentence of imprisonment was inevitable.

41      Mr Bourke asked me to act on the basis that your child will probably be able to join you and remain with you until he is 4 years old.  However, there will be some time required for administrative arrangements to deliver your son to you. You will experience considerable stress about him in the interim.

42      It will be essential that your mental health be closely monitored in prison to ensure that you do not seek to harm yourself.  Your current sense of hopelessness and worthlessness place you at risk.  Ms Brown has become increasingly concerned about your mental health particularly in the last 6 months.  Although you have continued to see her, this was at her insistence.  I accept that you will struggle in prison and be at very significant risk of suicide.  There is a considerable risk of a deterioration in your mental state.

43      I propose to provide the authorities with the medical and psychological material tendered.  The psychological material contains information relating to your upbringing that are private however you have consented to me providing the unedited material to the authorities.

44      You will suffer stress and guilt about not being able to care for your mother whilst you are in prison.

45      Ms Brown notes the severe psychological illness you experienced between 2006 and 2008 and suggests that it is possible that this state impacted upon your judgement at the time of some of the offending.  Given the speculative nature of this opinion your counsel did not seek to argue that your moral culpability was reduced under the Verdins’ principles.  Of course, as noted, your ongoing problems require intensive scrutiny and will make imprisonment difficult for you.

46      Both the prosecution and defence argued that I should sentence you to an aggregate term.  I indicated that, with the exception of charge 14 I thought this was appropriate.

47      The prosecution submitted that a total effective sentence of between 5 and 7 years with a non-parole period of between 3 and 5 years was appropriate.

48      Mr Bourke argued that a sentence of about 4 years might be open but a non-parole period of no more than 18 months should be imposed.  A significant disparity between the sentence and minimum term was appropriate, argued Mr Bourke.

49      I appreciate that prison will be very difficult for you but a significant disparity between the head and minimum sentence is often supported by evidence of remorse and strong rehabilitative prospects.  There is no positive evidence of remorse albeit I accept that you feel hopeless and worthless and I could not be confident about your rehabilitative prospects.

50      Mr Bourke noted the absence of any evidence of substantial betterment.

51      You will be convicted of Charge 14 and sentenced to 12 months imprisonment.

52      You will also be convicted of all the remaining charges and sentenced to an aggregate term of 4 years and 10 months imprisonment.

53      The aggregate sentence is to be the base sentence.  I order that 4 months of the sentence on charge 14 be served cumulatively on the aggregate sentence.

54      That makes for a total effective sentence of 5 years and 2 months imprisonment.

55      I fix 3 years as the term you must serve before being eligible for release on parole.

56      Had you not pleaded guilty I expect I would have sentenced you to about 7 years imprisonment and ordered that you serve about 5 years before being eligible for release on parole.

57      Any factual error that counsel can identify? 

58      COUNSEL:  No, Your Honour.

59      HIS HONOUR:  Anything that counsel want to say? 

60      COUNSEL:  No, Your Honour.

61      HIS HONOUR:  Anything further that I need to do?

62      MR FITZGERALD:  No.  Your Honour has made those ancillary orders.

63      

HIS HONOUR:  I have made them and I have signed them so my Associate will have them.  I will leave the Bench so you can speak to your client,

Mr Bourke.

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