Director of Public Prosecutions v Mastrangelo
[2018] VCC 87
•12 February 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION CR-17-00239
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VICKY MASTRANGELO |
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| JUDGE: | HER HONOUR JUDGE SEXTON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 25 October 2017 |
| DATE OF SENTENCE: | 12 February 2018 |
| CASE MAY BE CITED AS: | DPP v Mastrangelo |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 87 |
REASONS FOR SENTENCE
---Subject: Criminal Law
Catchwords: Obtaining property by deception
Sentence:TES – 6 months’ imprisonment and community correction order for 2 years upon release.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms L. Dipietrantonio | OPP |
| For the Accused | Ms J. Clark | Ann Valos Criminal Law |
Pages 1 - 13
HER HONOUR:
1Vicky Mastrangelo, on 25 October 2017, you pleaded guilty to a charge of obtaining property by deception, which has a maximum sentence of 10 years' imprisonment. There are 65 separate transactions rolled up in the one charge as set out in the schedule to the indictment, totalling $281,170.80.
2In December 2017, when your case was about to be listed for me to deliver sentence, your counsel requested on your behalf that the case be adjourned to enable a psychiatric report to be obtained. I agreed, and that report, dated
20 December 2017, was provided to the court[1] today together with two other exhibits. I will come back to that report.[1] Exhibit 5
3I sentence you on the basis of the Prosecution Opening[2], which is an agreed summary.
[2] Exhibit A
4In brief, you are a qualified book keeper and began working for the business Stan Cash Superstores in November 2013. Your duties included banking, invoicing and management of the company accounts. In April 2014, five months after you began your employment, you began stealing from your employer. Your dishonesty continued over more than two years, until 7 June 2016.
5Your method involved creating or duplicating invoices from legitimate suppliers to the business, amending the business accounts by changing the supplier bank details to the details of your own bank account. Once the particular transaction was completed by payment made by Stan Cash Superstores to your account instead of that of the supplier, you restored the legitimate supplier bank details in your employer’s business accounts.
6As Mark Caval, one of the three owners of Stan Cash Superstores, detailed in his Victim Impact Statement[3], they had owned this particular business for about two years when you were employed in 2014. The owners expected to be a little short of money, being a new business with not a lot of capital. But they found that the business was short of money every month, which meant juggling which supplier was to be paid first. If suppliers were not paid, the business could not obtain stock, and if stock was not available, customers would cancel their orders, and potentially write bad reviews online about the business and its service. Being short of money and unable to pay accounts had ‘massive implications’ on the business. Mr Caval often discussed with you which suppliers would be paid first as a result.
[3] Exhibit B
7In late 2015, the owners attended on their accountant to go over the previous financial year. The financial result for the business was very low. Mr Caval could not work out what was going wrong and was very stressed about it, and under pressure from the other owners for the business to improve.
8In June 2016, Mr Caval began preparing documents for the end of that financial year. He noticed that one of their two stores had a low bank balance in its account, concerning stock levels, high creditors and some payments had not been made. He raised his concerns with you on 16 June 2016, and you, knowing you had been stealing from his company for over two years, asked if he was accusing you of something.
9Mr Caval looked further into the accounts and found a number of payments were made to three bank accounts which were not registered to any suppliers, and also found that the accounts for both stores had numerous unauthorised transactions. After a difficult conversation with the other owners about his suspicion that the money was stolen, and stolen by you, Mr Caval then spent an entire weekend compiling information that he could take to the police, all the while feeling ‘sick to his stomach’ that a person that was such a trusted employee and even becoming a friend, had done this to the business, and to the people involved.
10On investigation by police, it was confirmed that you were the sole signatory of the three bank accounts discovered by Mr Caval, one of which was opened after you had begun your offending.
11This is very serious offending, because of the gross breach of the trust your employer had in you, the amount that was stolen, the number of transactions, the period over which the offending took place, the impact on your employer, and, I am satisfied, the systematic and calculated method of offending by which you covered your tracks by restoring legitimate bank details, and, in doing so, you not only lied to your employer but also, on one occasion, to a supplier, telling them they had been paid twice when they had in fact not been paid at all.
12I have already referred in part to the impact on the victims of your crime, being the business entity and the owners, and the further details of the full effect of your crime are set out in the carefully worded, powerful statement of Mr Caval, which you heard him read out in court. He mentions the personal and emotional strain on himself, his family and the staff, his inability to fully trust a staff member again, and the thousands of dollars that the business will never recover, including money spent on accountants trying to balance the books again, and that the business is facing unknown GST implications. The impact is a matter I very much take into account in deciding the appropriate sentence.
13The law also requires, as part of the sentencing exercise, that I take into account the factors that are in the offender's favour.
14The first of these is the fact that you have pleaded guilty, and indicated at an early stage your intention to do so. You are entitled to have that taken into account in your favour and I do. Because of your plea, the community has been spared the time and cost of a trial. As a result, I can tell you that the sentence I intend to impose is less than would have been imposed had you been found guilty after a trial.
15I also accept that you plea of guilty in court indicates remorse for your actions, together with other expressions of remorse in the material I have received, most notably, two letters from you, one of which was read out in court by your counsel and the other received this morning[4].
[4] Exhibit 2 and 6
16Next, I take into account that you have done all that you can to make restitution to the victims of your offending, the owners of Stan Cash Superstores. You were contacted by their lawyers after you were spoken to by police, and after receiving legal advice, you entered into an agreement to transfer your only significant asset - your home - to your previous employer[5]. I accept that you did all that you could and thought this would provide full restitution to your victims. I accept this attitude as a further expression of your remorse, and it is an important factor in your favour. Unfortunately, the owners were not able to fully recoup their losses[6].
[5] Exhibit 4
[6] See Statement of Expenses and Income attached to the Victim Impact Statement – Exhibit B
17Next, I take into account that you have not committed an offence before this period of offending. That benefit is not reduced by virtue of you having been employed in a position due to your good character and work record, a position which then enabled you to commit the offending. I note, and also take into account, that you have not re-offended since your offending was detected.
18Next, I take into account the efforts you have made since the offending, to rehabilitate yourself. Before I turn to those, it is necessary for me to outline your personal circumstances and background, which I also take into account.
19You are now aged 54 years, and were aged 50-52 during the offending. You were born in Greece, and came to Australia with your parents and sibling in 1970 when you were aged about 7. After completing Form 5 (Year 10), you did a year at business college and thereafter held a number of long-term clerical positions, over periods ranging from 4 through to 10 years. You married in 1988 in your late 20’s. You had difficulty conceiving and eventually were diagnosed with endometriosis, resulting in surgery. Attempts at conception through IVF in 1997-98 were unsuccessful, and this ultimately led to you and your husband separating in 2000 and divorcing in 2001. He has remarried and had children.
20You have had two other significant relationships, with the last ending in 2012. You had established a relationship with the children of your last partner, and that contact decreased after the breakup. In the psychiatric report received today[7], it states that you report that you were subjected to physical and emotional abuse in these later relationships, a matter which had not been referred to before. The estrangement between your mother and sister has also been highlighted in this psychiatric report and it was confirmed today that they know nothing about this case.
[7] Exhibit 6
21As a result of these matters, it seems you were diagnosed with severe depression in 2013[8] and it seems you left a job you had held for 7 years at about the same time. You received treatment with medication prescribed by your GP, and saw a psychologist. According to your GP, after 6 months you improved and stopped treatment. This means that, while you had been diagnosed with depression in 2013, by early 2014, you were not then considered to need treatment. Early 2014 coincides with the beginning of the period of offending. You relapsed in early 2016, and were sent back to a psychologist in June 2016, which coincides with the detection of your offending by Mr Caval. Your GP reports that you continued in treatment in 2017, but have not responded as well as previously, and your medication has been changed and remains under review. A further letter was received from Dr Freeman this morning confirming this[9].
[8] Exhibit 3 – letter from Dr Freeman dated 12 October 2017
[9] Exhibit 7 – Letter from GP dated 8 February 2018
22I received a letter from your treating psychologist[10], who saw you for ten sessions from June 2016, and apparently you made progress. You reported to her that you thought your depression began with the unsuccessful IVF cycles after which you had early onset menopause, and she noted that you also referred to the sudden death of your father to whom you were close, which was in 2004, as well as the loss of employment in 2016, as all contributing to your stress. Of course, you lost your job in 2016 because of your offending. The psychologist recommended that you continue with medication and therapy.
[10] See letter from Tatiana Tsiaousis, undated – part of Exhibit 3
23The psychiatrist who saw you on 27 November 2017 recorded that you reported anxiety for many years and the psychiatrist expressed the view that you presented then with worsening symptoms of anxiety despite being on medication, against a background of multiple psychosocial stressors, one of which was the possibility of going to gaol for your offending. In reaching that view, emphasis was placed on your grief over your father’s death in 2004, the worsening of your anxiety and grief due to physical and emotional abuse in relationships, and your inability to reconcile with your mother and sister. The ultimate opinion of the psychiatrist was that you presented with Generalised Anxiety Disorder with panic attacks and unresolved grief in the context of ongoing legal issues and social isolation.
24I was told on the plea by your counsel that your offending was committed in order to gamble. You had previously been a player of poker machines at a ‘social’ level beginning in 2011-2012, but in 2014, while still unemployed, you began spending more and more time gambling, eventually spending hours in this activity three or four times a week, losing track of time. As I said earlier, you were not seen to require treatment in 2014, so that does not seem to explain the offending beginning at that time after you were employed. On the other hand, if your depression had returned, you did not return to your doctor to deal with any psychological issues.
25Your counsel submitted that your theft of the large amount of money from your employer was not an exercise in greed or enrichment, and that you were not using the money to pay off your mortgage or acquire other assets, but were driven by the desperation of gambling. However the prosecutor submitted that your motive in stealing was greed; while the purpose of the theft was to fund your gambling, it was submitted that ultimately, the stealing allowed you to gamble and not use your own money, which would have raised a risk of losing your home.
26In my view, you did use your employer’s money to gamble, and used your own money to keep your other commitments going, such as your mortgage and credit card debt, the latter arising from your increased gambling habit while you were unemployed. You did not return to your doctor to deal with any psychological issues but instead embarked on this path of criminality over a two year period. While it is true that there was no enrichment by gaining other assets, and you did not directly use the stolen funds to pay your mortgage, your use of your employer’s funds, to their financial detriment, enabled you to continue to gamble without any further impact on your own financial commitments.
27It is in this context that I turn to consider the steps you have taken to rehabilitate since your crime was detected. First, as already mentioned, you did finally return to your GP and go back onto antidepressant medication and receive psychological counselling.
28Next, in July 2016, following discovery of your criminality, you were referred, or referred yourself, to a Gamblers’ Help program[11]. On initial assessment, you were considered to have severe levels of depression, anxiety and stress as well as a high sense of desperation and were using gambling as escapism. You engaged in 12 sessions involving a range of therapies and techniques, as well as a ten week cognitive behaviour therapy group, before you were discharged in June 2017 following successful completion[12]. You reported that you did not gamble throughout attendance at the program, and told the therapist that you felt you were able to function better after this program. A letter attached to your certificate of completion[13] states that you were dedicated and committed to the group, supported other members of the group, and achieved steps towards personal growth and progress each week.
[11] Exhibit 3 – letter dated 10 October 2017 from Archana Bhat, psychologist, IPC Health
[12] Exhibit 3 – Certificate from IPC Health dated July 2017
[13] Exhibit 3
29To your counsellor and in your first letter to the court, you expressed interest in helping others to avoid the situation you were in, looking to volunteer with a Gambling Awareness Speakers Bureau, which trains former gamblers to become community educators.
30At the same time as the referral to the Gamblers’ Help program, you began attending a financial counsellor with IPC Health. As at October 2017, you remained a client. You attended five face to face sessions and had multiple telephone communications aimed at resolving what was described as financial hardship resulting from your gambling behaviour. You were also linked in with a legal service which helped you to negotiate the transfer of title of your home to Stan Cash Superstores. You are reported to have demonstrated commitment to meeting your financial obligations and regularly expressed remorse for your actions[14].
[14] Exhibit 3 – letter dated 12 October 2017 from Rebecca Denny, IPC Health
31Both counsellors at IPC Health expressed the view that you have a positive prognosis based on maintaining your payment plan, seeking further financial counselling as required, using constructive coping strategies instead of escapist behaviours, seeking active consultation with the counsellors when you encounter difficulties, actively seeking and maintaining your current employment and offering to volunteer to help other gamblers in recovery as I just described.
32At some stage, you have obtained further employment as a credit officer, and after some initial difficulty in finding somewhere to live after you moved out of your home following the transfer of title, you are now in private rental accommodation, and financially supporting yourself. After some reluctance to involve friends due to your shame and embarrassment for committing the criminal offences, as at October 2017, you had confided in some of them and a couple attended court to support you, and supported you in other practical ways. However, this has not continued and you remain in self-imposed isolation.
33In October, your counsel described you as facing up to your emotional and psychological issues. However, after the plea, perhaps with the full realisation of the seriousness of your offending, your anxiety has worsened and it seems you are not coping as well as before. Further submissions today highlighted your isolation, including from friends, as I have just mentioned, who were referred to last October, who could support you. It is troubling that continuous isolation contributed to your offending through gambling and that you are again isolated.
34Despite this, on the basis of all of the material, I consider that your prospects of rehabilitation are quite good if you can work with professionals to restore your mental health, and that you are unlikely to reoffend again.
35However, as well as those matters personal to you to which I have referred, including your rehabilitation, I must also take into account the need for general deterrence. That means that my sentence of you must seek to deter others from committing similar offences. This is an important sentencing objective in a case involving dishonesty by an employee. Because of your previous good character, and your prospects for rehabilitation, the need for my sentence to deter you from re-offending is less important, but still has a role to play.
36Before I turn to the sentence, there is one other matter I must deal with. Application has been made for an intimate forensic sample to be taken from you and through your counsel you have not objected to this. I am satisfied that it is in the interests of justice, that in all the circumstances, I order that an intimate forensic sample, namely saliva, be taken from you. The sample may be taken by a doctor or nurse or other authorised person. A saliva sample is taken by wiping a swab inside your mouth. I must inform you that if you change your mind, the police may use reasonable force to enable such a procedure to take place.
37Turning then to the sentence, your counsel submitted that a community correction order was an appropriate disposition in your case, and would meet all the sentencing objectives. You were assessed and found suitable for such an order.
38The prosecutor submitted that a sentence of imprisonment combined with a community correction order was an appropriate disposition but also submitted that a community correction order by itself was within the range of available sentences.
39I can only impose a sentence of imprisonment if I consider it is the only appropriate disposition. Your counsel submitted that I should not do so because you would lose your current employment and be limited in finding further employment subsequent to a prison term, with a conviction and given your age. It was also submitted that you may lose your current accommodation.
40The psychiatrist provided the opinion that a term of imprisonment would hinder your access to treatment and greatly impact on your mental state and recovery. Your counsel relied on this to reinforce the submissions she made last year and that I should take this into account in respect of the burden a term of imprisonment would have on you, and potentially an adverse effect. The prosecution conceded these last two points were proper for me to take into account, and I do.
41In summary, on the one hand in your favour are the facts that you have no prior convictions, pleaded guilty early, expressed remorse, made as much reparation as possible, commenced rehabilitation in respect of your gambling and psychological issues, found new employment and have ongoing mental health issues which would adversely affect you if sent to prison, and increase the burden of imprisonment. On the other hand, the offending was very serious, involving a gross breach of trust, a large sum of money and occurred over a significant period of time. Weighing these factors as best as I can, I have decided that there is no alternative to a term of imprisonment. However, because of the factors in your favour, I will combine a short term of imprisonment with a community correction order.
42Although the terms of the community correction order were probably explained to you at your assessment, that was some time ago and I need to explain them again.
43After serving a term of imprisonment, if you agree you will be released on a community correction order for 2 years.
44That order will have the conditions that are attached to every order, which are: that you must report to and receive visits from Corrections Victoria, must notify Corrections Victoria of any changes of address or employment, must not leave the State of Victoria without the permission of Corrections Victoria and must comply with any direction given by Corrections Victoria.
45I will also order that you comply with other conditions during those two years. The other special conditions are:
· You must perform 70 hours of unpaid community work; and
· You must undertake assessment and treatment for mental health conditions
46I will also order that the hours in the mental health treatment will count towards the unpaid work hours.
47Ms Mastrangelo, do you agree to those conditions being attached to a community correction order?
48OFFENDER: Yes, Your Honour.
49HER HONOUR: If you are ill or there are exceptional circumstances, this order may be suspended for a period of time. If your circumstances change, the court may change the order or cancel it. In either case, you must tell the Community Corrections office you will be attending and I recommend you also get legal advice.
50If you do not complete any condition of this order, including by committing other offences, you will be brought back before me to be re-sentenced on the original charge and also be dealt with for the breach of the condition. What will happen then will depend on a number of circumstances but you should be aware that my options are limited and one of those limited options is more imprisonment. Ms Mastrangelo, do you understand what will happen if you do not complete this order, including by reoffending?
51OFFENDER: Yes, Your Honour.
52HER HONOUR: The order of the court is that on the charge of obtaining property by deception, you are convicted and sentenced to 6 months' imprisonment, following which you are to be released on a community correction order for 2 years on the core and other conditions that I have just described.
53I will put on the court record the issues in respect of mental health and your medication for the prison authorities.
54Finally, I advise that if you had not pleaded guilty but had been found guilty after a trial, the sentence I would have imposed would have been a term of imprisonment for two years with a minimum of 12 months.
55Just take a seat please because we will need to print out and sign the community correction order. Ms Clark, would you go with my associate in case
Ms Mastrangelo has any questions?56Ms Mastrangelo, I have signed that order as well and so that will be in force from when you are released from imprisonment and I will provide a copy to
Ms Clark, I think is the best thing to do. Any further orders? I have handed down the forensic sample order.57MS DIPIENTRATONIO: Yes, Your Honour, I was just checking that they had been provided last time. There is nothing further, Your Honour.
58HER HONOUR: Yes, thank you. Yes, Ms Mastrangelo may be removed.
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