Director of Public Prosecutions v Matisi
[2017] VCC 797
•19 June 2017
m
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 17-00244
Indictment G12368681
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Bernard MATISI |
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JUDGE: | JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 and 16 June 2017 | |
DATE OF SENTENCE: | 19 June 2017 | |
CASE MAY BE CITED AS: | DPP v Matisi | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 797 | |
REASONS FOR SENTENCE
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Theft x 6; significant breach of trust; some CCE offences; Over $2.7 Million
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APPEARANCES: | Counsel | Solicitors |
| Department of Public Prosecutions | Mr P Pickering | Office of Public Prosecutions |
| For the Accused | Ms R. Sleeth | VLA |
HIS HONOUR:
1 Bernard Robert Matisi, you have pleaded guilty to six charges of theft. Three of the charges are between dates rolled up charges. All up the dishonesty spanned a little over two years. The other three charges relate to specific transactions on single days within that same period and are isolated in that way as they are continuing criminal enterprise offences. You have one past appearance before the Courts back in 1992. It is of clear relevance to my task as it too involved a significant breach of trust in your employment role within a company. I will return to that matter later in these reasons. You were born on 29 August 1965 and are now 51 years of age.
2 The maximum penalty for theft is ten years' imprisonment. However by virtue of the continuing criminal enterprise offence provisions of the Sentencing Act, the maximum penalty for Charge 3, 5 and 6 is 20 years. Your counsel agrees that this is the position.
Facts
3 The prosecutor Mr Pickering opened this matter to me in accordance with a written prosecution opening that was dated 7 June 2017 and marked as Exhibit A on the plea. Your counsel Ms Sleeth told me that this was an agreed statement of facts.
4 In such circumstances, I see no need to descend to the full factual setting in my sentencing reasons as the summary is an agreed statement and I will not go beyond it.
5 I should still say something briefly about this undoubtedly serious offending. You were working in a position of trust as an accounts payable clerk at a family run company. It had expanded in its operation quite significantly. Your counsel told me it had a turnover of some $45,000,000. You were being paid $75,000 per year and had known one of the directors for quite some time. In fact you had approached that director seeking employment with the company as an accountant and they had taken you on in around 2011.
6 One of your responsibilities was to pay suppliers. You did this. Regrettably at the same time you dishonestly channelled payments into your own bank accounts. By chance on 14 June 2016, the office manager Ms Ruiz noticed two payments for the same amount going to the same supplier. It was unusual as there was a 30 day invoice period for that supplier. So two transactions in the one month was the unusual feature. She showed the transaction to one of the directors. That director thinking the supplier may have changed bank accounts rang the supplier and was told that they only had one bank account. He took the matter up with you and you told him the payment had been made in error into the wrong account. The money was repaid. There the matter may have been left as an innocent mistake. As luck would have it, Ms Ruiz checked the actual account number into which the money had been deposited and found that it was an account in your name. She smelt a rat. She quickly enough established that there were a number of other such transactions totalling over $200,000 where you had purported to pay suppliers and entered those details into the company accounting system whilst in fact the money had been sent to your own account. They typically were done under cover of “bulk runs" where a large number of other payments were being made.
7 In any event, Ms Ruiz took her discovery to the director who spoke to you the next day. You at that stage admitted dishonesty and said the money had been taken for medical expenses. You were dismissed on the spot and escorted from the building. You transferred back to the company $160,000 the next day. Further checks by the company and then later by the police disclosed the true dimensions of your theft. Over $2.7m stolen in a period of just over two years.
8 You were arrested on 25 August 2016 and you were interviewed by the police. You made very full admissions which is to your credit.
9 You pleaded guilty at the earliest stage. That also is to your credit.
10 Enough then of my brief summary of the agreed facts.
Impact
11 I turn now to the impact of your crimes. One of your victims has chosen to make a victim impact statement. That was made by the director who employed you, Michael Riquelme. I have read his victim impact statement again since the day of the plea. To say he feels let down would be a massive understatement. He says that trust is one of the key aspects of running a successful business. He speaks of the trust in which he held you, a trust which was important as the business expanded. The discovery of your theft brought him much anxiety, it brought him sleepless nights and also brought much friction with his father who was one of the co-directors in the business. The business suffered financial stress and staff were laid off. He, Mr Riquelme, feels ashamed and even embarrassed that he was so used by you.
12 I take into account the impact of your crimes. They have been significant.
Mitigation
13 Your counsel, Ms Sleeth, raised a number of matters in mitigation. She relied upon:
· Your very early guilty plea;
· The presence of remorse;
· An increased custodial burden owing to your various health conditions;
· Your prospects of rehabilitation;
· She took me also to your personal background in some detail;
She relied upon a report from a psychologist Ms Warren as well as some personal references from your mother, your two sisters and your brother in law. In addition, she called your sister Frances to give evidence.
14 She made submissions as to the nature of the offending, its relative lack of sophistication and the possible underlying causes of the offending. She sought to differentiate your offending from cases motivated by pure greed.
15 Ms Sleeth conceded that this was serious offending involving as she put it, a ‘grave breach of trust’. She took me to some other instances of sentences being imposed for the crime of theft by other judges.
Prosecution
16 Mr Pickering, who appeared on the plea on behalf of the Director of Public Prosecutions, took issue with some of the defence submissions including the suggestion that the theft was certain to be discovered at some point. He challenged certain aspects of Ms Warren’s report as not actually containing an opinion as to any psychological condition and took me to passages of the police interview dealing with the non-contribution of gambling and the lack of any dire financial pressure, which might be said to have motivated the offending. He raised the similarity in the plea submissions made at two County Court hearings over 25 years apart and questioned the submission as to your having good prospects of rehabilitation. As to the issue of motivation, he submitted that it was not a psychological condition to want to buy friends or be liked or to want to live the high life.
Guilty plea
17 I turn then to consider the various submissions made by your counsel. I move firstly to your guilty plea.
18 You have pleaded guilty and have done so at the earliest stage. That is clearly a significant mitigatory matter. There is a significant utilitarian benefit that applies to an early guilty plea such as yours. You have taken early responsibility for your offending. Not everyone does. Witnesses have been spared the experience of coming to court to give evidence. The community has been saved the time, expense and effort associated with the conduct of a committal hearing in the Magistrates' Court and a trial up in this court, a trial which would have had at least some complexity and obviously some length.
19 You have facilitated the course of justice and I must reward you for your decision to plead guilty and at the early stage which you did. I also take into account your very full co-operation with the police. You chose to cooperate with the police and chose to answer the questions put to you and did not shy away from your guilt. Some people do. You did not need to do answer these questions, you chose to, and freely admitted your crimes. So I take that into account as well.
Remorse
20 As to remorse, you have pleaded guilty and at the earliest stage. A guilty plea is usually evidence of at least some remorse. Here though I have far more than your early guilty plea. I have your full co-operation with the police. I also have your expressions of remorse in the police interview and to others including the psychologist and the various authors of the character references. Your sister spoke of it in her reference and also in her evidence before me. I am actually satisfied that you are remorseful for these crimes. I take that into account in your favour.
Background
21 I turn now to your background. Ms Sleeth set out your family and work background in quite some detail in her oral submissions to the Court. I see no need to set out your background in great depth in my reasons as I accept the personal and work background that has been placed before me. It is not contentious
22 You are 51 years of age. The fact is unlike very many who inhabit the dock, you have had a good upbringing in a very supportive and loving family. You were the oldest of three children. You have two younger sisters. You completed HSC and went on to tertiary studies doing a business degree. You have had on paper an excellent employment record, but of course it is blotted by the criminal conduct targeting one of your employers in the 1990’s being Australian Airlines and this offending which spanned over two years. You received a three year prison term with an 18 month non-parole period for the earlier offending. That offending involved a significant breach of trust. Those reasons for sentence are marked as an exhibit on the plea. You were married for close to 20 years and that relationship came to an end in 2015 during this offending. The relationship had been in its death throes prior to actual separation. There were no children of that marriage and your sister wondered whether your shame at your past offending and concern about the need to disclose such conduct contributed to the decision not to have children.
23 Your family are clearly very supportive of you and that support will continue. That is obviously a good thing. There are some excellent and thoughtful references placed before me and I was much impressed by the evidence of your sister Frances. You have some considerable health issues which undoubtedly will increase your burden in custody.
24 In so many areas of your life you are evidently a decent, kind and generous man. A loving and helpful son, an excellent and kind brother and a devoted and patient uncle. You have not been shy of hard work over your life. You seemingly have had issues with self-esteem for many years and no great success or confidence with women. You have had very significant issues posed by your weight and it would be naïve to think that they were only the physical issues spoken of. You seem to be socially a bit clumsy and the material suggests that you have a strong desire to please and to be liked. Well many do. Though you have given to many including to sporting clubs over the years in a selfless fashion, when I examine your sister's evidence and the other material placed before me, you are for some reason far less able to accept assistance from others. You do not confide in others any of your serious issues or concerns. You are very much a private individual. For instance, you did not tell your sister or family of the collapse of your marriage. Your sister and other family members only learnt of the fact of your being charged from others. Your sister who gave evidence before me only learnt the details of the true dimension of your thefts in the car on the way to Court on the day of the plea last week. It must have made for a most uncomfortable journey.
25 It is not as simple as saying you are a dishonest or greedy man though you have now on two occasions demonstrated significant dishonesty in the manner in which you have breached your duties to your employer. What then to make of your future prospects of rehabilitation in light of the seriousness, scale and duration of your current offending and the scale of your past criminal conduct? Well of course I cannot just ignore all of the positive material placed before me as to your many strengths and qualities. Nor though can I ignore a disturbingly similar setting in this current conduct when compared to the last offending. The sentencing remarks from Judge McNab deal with the submissions made to him. They very much mirror the submissions made to this court 25 years later. There is an uncanny similarity in the claimed reasons for offending. It is quite disturbing.
26 You have been exposed once again as a thief. You have been sacked and tried to commit suicide late last year. I would be surprised if the process of being confronted by your employer, sacked, arrested by police, charged and then sent to prison to serve the large sentence which I will shortly pronounce did not go some significant distance to deterring you from committing crimes such as these in the future. Yet I am surprised also that you offended in the face of the past prison term imposed. The serious offending for which I must pass sentence spans a period of over two years and netted over $2.7m. As the schedule attached to the summary discloses, there were very many individual dishonest transactions. Over 180. Your offending was breathtaking in its audacity and scale and not driven by need. It averages out at around $24,000 per week.
27 It is very difficult for me to know what the future holds for you. It is hard not to be guarded about your prospects. No doubt back in 1992, the Judge hearing that plea would have been told that it would be highly unlikely that you would occupy a position of trust again and yet you did. You did not disclose your past criminal history to the current employer and they took you on trust because they trusted you. I am not being critical of you for that. You had to get on in life. Nor is there any suggestion that you sought employment with any intention of committing these crimes in the future. I do not for one moment reach that conclusion. The fact is you may yet again find yourself in a position of trust in the future though I am told that you are wanting to shift into a different area upon your release and work in a less trusted position such as an odd jobs man or a cleaner. There is obviously a risk of future offending but it is very difficult for me to quantify that risk at this point. Ms Warren thinks it a low risk and I am prepared to subscribe to that view to the following extent. As I have said, you are remorseful. You pleaded guilty at the earliest opportunity and unlike some, you fully co-operated with the police. I believe that you are probably unlikely to commit this style of serious offending in the future. One would hope that the criminal record arising from these proceedings will flag caution to any prospective future employer who actually looks into those areas. The problem is not every employer does. You plainly should never be placed in any position of trust ever again at least in connection with money. It is hard not to be guarded given the scale of your crimes and the existence of the past serious criminality. However, in all of the circumstances I am prepared to assess your prospects of rehabilitation as being reasonably good.
Psychologist
28
I have mentioned the psychologist's report from Ms Warren. She saw you on two occasions in the lead up to court. It is a most unusual report elevating as it does a variety of personality traits or failings to “conditions". Things such as ‘lack of intrapersonal intelligence’, ‘rationalisation of behaviour’ and ‘financial incompetency’. Whatever one makes of those conditions, even in combination, they and others fall short of any formal psychological diagnosis. Your counsel made plain that none of the principles from the Court of Appeal decision of
R vVerdins were enlivened here and I do at least agree with that submission. I take into account that report though I believe it has significant limitations. I am dubious of the suggestion that ‘financial incompetency’ or ‘rationalisation of your behaviour’ are psychological ‘conditions’. The reference in her report to excessive gambling runs counter even to your own interview account.
Ms Warren, and I am not critical of her for this, but what she is doing is trying to find or glean some reason for your offending. She speaks to you. She receives your account, your insight, and then probes into your personality. She then comes up with these theories. That is what they are. One thing is for sure; you have no intellectual failings at all. You are in the superior range of intelligence. You are not an abuser of drugs or alcohol.
29 As to rationalisation of your behaviour, well there are probably often some endeavours to rationalise a large scale theft. It happens all the time. The fact is there are probably always a mixture of reasons for all large scale thefts that come before the court. It is never black or white or so simple as greed or need, one thing or the other. There is often a mixture of motivations. You speak of financial concerns as being there at the outset and your counsel developed that submission, but they really can’t have been the main driver of this offending. The fact is your counsel, Ms Sleeth, has chosen not to place before me any details of your level of indebtedness and you speak of some relatively modest amounts in your police interview. In any event, the scale of your thefts would have put paid to those financial concerns within months even if they had been the driver of this offending. The offending continued.
30 I am prepared to find that there are aspects of your personality commented upon by Ms Warren (and indeed by your family members) which may have contributed to some degree to some of your offending. I cannot just ignore the fact that there was something pretty significant happening in your life. Your marriage of many years was falling apart. It was failing. Home was unpleasant in such a setting as that. Whether by choice or as a feature of your personality, you internalised the emotion arising from that sort of event, not even discussing it with your family until pressed. You avoided discussing these issues. You do wish to please others and to be liked. You are socially quite clumsy and I have no doubt that like many committing crimes such as these, you did find a way of rationalising your conduct. Of thinking that your employer would not necessarily feel the loss. None of this by the way is greatly mitigatory. I do not accept for one moment any suggestion that you were not awake to the seriousness of your wrongdoing. You were. You also must have been fixed with an understanding of knowledge of the scale of your thefts, of their dimensions. You were probably not thinking about being caught or the consequences. There is certainly nothing in the way the offending was committed that suggests you were. There was no complex trail to unravel. This money was going into your own account. However, I do not accept any suggestion in the submissions to me that you did not seek to hide your conduct. You obviously did. The payments were, to anyone else looking at the system, payments to suppliers. Of course you tried to cover up your conduct, even lying to the director when confronted with the double payment. To your credit though, when confronted the next day, you then admitted your dishonesty.
31 I have no doubt at all that you knew what you were doing was seriously wrong and seriously criminal. You were, for whatever reason, prepared to take the risk and you had found a way of rationalising your behaviour. You were using some of the money to assist others including but not limited to the Korean woman referred to in the course of the plea. Your desire to be liked no doubt had a role to play. However, you were to some extent living the high life yourself, staying at Crown Towers and eating at expensive restaurants and the like. You probably had a strong sense of dissatisfaction in your normal life. In any event, I do take into account the report of Ms Warren and I am prepared to find some very modest reduction in your criminal culpability owing to some of those matters raised in the report. But it is not a large matter, I can tell you.
Increased burden
32 Your counsel argued that I could take into account an increased custodial burden owing to the various health predicaments commented upon in the medical materials. She spelt out very directly the conditions relied upon (Venous insufficiency and cellulitis, diverticulosis [a serious bowel issue] and the consequences of lap band surgery. She spelt out also the manner of hardship and the way in which these things would impact upon you and I see no need to restate them all now in my reasons. I conveyed my acceptance of those submissions during the plea and nothing has changed since.
33 I am pretty confident that prison will be difficult enough for you quite aside from those various health concerns. You are going there at the age of 51 though of course you have been there before in your 20’s. You would likely have no allies or friends there. I am prepared to find an increased custodial burden owing to the health conditions spelt out on the plea. There is certainly nothing suggesting that your raft of medical conditions cannot be adequately managed in a prison setting but I do take into account the increased burden in the ways argued by your counsel.
Purposes of sentence
34 As to the offences themselves, your counsel conceded that this was serious offending with a grave breach of trust. She was right to make that concession. I will come back in a moment to discuss the gravity of this offending
35 I want to deal now though with some of the purposes of sentencing that I have to pay regard to. You are an intelligent man and have been dealt with in the past for serious offending. I am sure you are aware that a judge has to consider a number of purposes of sentencing, not only your prospects of rehabilitation. I am required to impose a just and proportionate sentence in relation to your offending. You must be punished. Well, you understand that your conduct must be met with consequences and one consequence is punishment. Just punishment is an important sentencing purpose in this case. This was very serious criminal conduct.
36 I must also denounce your conduct. Again, denunciation is an important matter. Your conduct was extremely dishonest and it was of a reasonably long duration and of very high value. The breach of trust was high indeed. There is no great reduction in moral culpability here. I must and do denounce your conduct. It was disgraceful to act in this way directly against the interests of your employer, but you did it for years.
37 There are other purposes of sentencing and one such purpose is the need for specific deterrence. That is the need for this court to seek to deter you from offending in the future ever again. I must give that principle, that is the principle of specific deterrence some weight in my sentencing task. As I have said, this was very serious and sustained offending of high monetary value by a person in a position of trust and by a person with a significant prior appearance before the courts. Now you served the sentence for that past offending and don’t fall to be sentenced a second time by me for it, but it is a real worry that you have committed these serious crimes notwithstanding that a term of imprisonment was previously imposed upon your for far more minor theft, at least in terms of monetary amount and duration. Yet, you have offended again.
38 You must be deterred. That is surely obvious enough. I must also give some weight to protection of the community. Now as I have announced earlier, I believe that you have reasonably good prospects of rehabilitation and I assess you as having a relatively low risk of reoffending in the same way in the future. I believe that I can moderate to a degree the weight to be given to each of these purposes but they are still relevant to my task. They must be given at least some weight. Your working life is far from over. You are only 51. You will be older upon your release, but you have worked predominantly in positions of responsibility or trust. You obtained this job with your victim in 2011 despite the past prison sentence imposed in this Court in 1992. You may yet again obtain employment and in circumstances where future employers may not be alert to your past misconduct. I have to try to deter you from offending in the future. So I give specific deterrence and community protection some weight.
39 General deterrence is undoubtedly a very significant purpose of sentencing in this case. This court must send a clear message to other individuals in the community, to those who are in positions of trust within a corporate structure and who might be tempted to commit this sort of serious dishonesty offending.
40 These were not isolated or minor criminal acts committed by you. It can hardly be said that you have acted out of character given that you have committed over 180 dishonest acts rolled up within these transactions over a period of greater than two years and in a setting where you have acted very dishonestly in the past. In this case, you acted deliberately. You made a choice, it was a bad choice obviously, but a choice nonetheless to commit these serious and sustained crimes against your employer. You were not deprived of your will to act. You made a choice. Of course you hoped not to be detected. Probably every offender does.
41 White collar crime is difficult to detect and often enough that is because of the trust invested in the offender by the employer. As unsophisticated as your crimes undoubtedly were, they were still demonstrably the sort of crimes that can be difficult to detect. Not because of any complex measures taken to hide the transactions and to avoid detection, but because of the bond of trust existing. They were detected by chance. You were acting as an account payable clerk. You were in a position of trust. You used your position of trust to commit crimes upon the very organisation which was paying you to administer the system. The organisation that had trained you to administer the systems in place. You knew the weaknesses of the system and the gaps in supervision or oversight, gaps no doubt arising because you were so trusted to perform your job. You could defeat the system and that was because you were trusted. That is why you could commit the offences and go undetected for as long as you did. Certainly, I accept that the crimes were not particularly sophisticated with the money being channelled directly into your own accounts. The answer really is that they did not need to be sophisticated. You did what needed to be done to steal the money and got away with it for over two years.
42 Your counsel spoke of the certainty, and she suggested, the immanency of discovery and suggested that that certainty was because as large as the turnover of the business was, your dishonest conduct was eating very sizeably into the profits of the company and that your conduct would shortly have been discovered. There are few things to say about that submission. Firstly, the likelihood of discovery is not of itself a matter in mitigation at all. Secondly, you were discovered purely by chance. You had not desisted voluntarily or gone to your employer and confessed your crimes. You made a mistake entering two payments to one supplier in one month and that happened to be spotted and then pursued. That was a matter of luck. Good luck for your employers, bad luck for you. You were caught out and very much by chance. You had not been discovered for over two years and had been taking a very sizeable chunk of the profits for that period and without detection.
43 Companies are complex structures. They are not easy to break down to examine the workings and the financial performance. As large as its turnover was, this was a family company with trusted employees. You were one of the trusted employees. It can sometimes be difficult to see where things are going wrong in such a structure. No doubt if a forensic accountant had been brought in, they could have unearthed these irregularities, maybe even very swiftly. That is not a matter in mitigation. That hadn’t occurred and there was no suggestion it was going to. This was serious offending committed in the setting of a grave breach of trust
44 I do pay regard to current sentencing practices as I am obliged to. I have considered the Sentencing Advisory Council's snapshot in relation to the offence of theft. That is snapshot number 202 of April 2017.
45 Having read it though, it is of very little use to me. Theft covers a multitude of offending in many different factual settings. Differing acts and amounts and relationships. Sometimes there is no element of breach of trust in a theft. Sometimes there is a gross breach of trust, such as in this case. There are differing amounts and durations of offending. I have to pass sentence for your thefts and they are very serious. Your counsel concedes that. Three offences involve rolled up between dates offending so the sentencing statistics which always have real limitations have even greater limitations than is usually the case. The remaining three charges have the increased maximum. The snapshot is of no great use to me at all.
46 I have looked also at the selection of cases held at the Judicial College of Victoria Sentencing Manual and the cases to which I was referred. As to the cases your counsel referred me to, Ms Sleeth introduced them in her submissions as ‘authorities’. They very plainly are not authorities for anything. Other sentences passed in other cases are not precedents or authorities at all. Even the briefest examination of them discloses a multitude of differences in each direction. They are not even comparable cases. The case of Pope for instance, had a higher monetary amount but stolen by someone with no prior history at all. McKernan a much lower quantum but by a person with a disadvantaged background and longstanding mental health issues and a sizeable delay. They are decisions of a judge of this Court. There are many other such decisions of single Judges of this Court including one of my own which prosecution counsel referred me to, the case of Tan. Again though there are plainly differences in the case of Tan. In her case, there was a far lower amount ($1.3m) stolen over a much longer duration but committed by a woman with no prior history at all and with a dependent child doing VCAL. She however was an offender with very limited remorse and there was a nastiness to her offending in that she as the bookkeeper represented to the directors the dire financial position of the company and need to put in personal funds to keep the company afloat, funds which when they were deposited, she then pocketed. As to De Sieno, well in that case, there was a far greater value and duration but by someone with no prior history. I have read those various decisions that I have been referred to and they take me nowhere at all. There is no arithmetical equivalence demanded by sentences passed in other cases. What I have to do is to come back to your case to look at the nature and gravity of your offending.
47 Well, as I have said it was a very serious breach of trust committed for a period of over two years and with a high monetary value. All of those matters are conceded. Your counsel argues that this was unsophisticated offending in that the money was going to your accounts. As I have already commented, I accept that it was not sophisticated. There was no complex arrangement to hide the payments or to distance you from the accounts in to which they were paid. They went directly to one of your three bank accounts so you were not thinking too deeply about the consequences, I am sure that is the position, but of course the destination was masked by your conduct in entering supplier details into the system and in masking the transactions in the bulk of other transactions on the same day.
48 You were trusted and the level of that trust can be gleaned from the fact of this conduct spanning over two years.
49 I believe your criminality is high. You commenced the offending in 2014 and kept at it until unmasked over two years later. It only stopped when you were caught and sacked and your offending was relentless when we examine the schedule attached to the opening which gives a true insight into the frequency of acts and the large amounts taken. Enormous amounts of tax free money on a monthly basis, monthly nett amounts very often dwarfing your entire annual gross income. On and on your dishonesty went until you were caught.
50 This was very serious offending and not committed out of any genuine financial need at all nor to support some pathological gambling habit or drug addiction. A large amount of money which you stole and which you spent. Frittered away aimlessly on luxury and lifestyle items, with a large amount spent on prostitutes, jewellery, accommodation and on fine dining and the like. I am sure that you did engage in generosity and demonstrate largesse to others with money other than your own and that was demonstrated not just to the woman spoken of but others that you refer to in the interview. Your desire to be liked and to please is not a matter of any great mitigatory value at all. As I have said I have found some very modest reduction in your moral culpability but your criminality is still very high.
51 As the cases disclose including some of those I was taken to, there are some thefts that are larger in monetary value, but as I said in the case of Tan, some large value dishonesty offences can be committed with a single loop of the pen on a cheque or with merely a handful of dishonest transactions. Indeed your last offending was seemingly a handful of dishonest acts. Then, there are those like your current offences involving consistent, sustained and large scale dishonesty over a two year period. Each act arising out of the trusted position that you held and the trust and the faith that others placed in you.
Totality
52 I have taken into account the principle of totality.
53 I have engaged in a last look at the sentence imposed by this court in endeavouring to guard against the imposition of a crushing term upon you and to ensure that the sentence is commensurate with your overall criminality. Your criminality was very high indeed.
Section 464ZF
54 I have been requested to make a forensic sample order. That application is not opposed and I have signed the order and now pronounce it. I order that pursuant to s.464ZF(2) of the Crimes Act that you undergo a forensic procedure for the taking of a scraping from your mouth in accordance with Subdivision 30A of Part 3 of the Crimes Act until a sample of sufficient standard is obtained for placement on the database. I am satisfied that in all the circumstances, the making of the order is justified owing to the seriousness of the circumstances of your offending, the existence of the prior conviction alleged against you and the fact that the order is not opposed. I judge the order to be in the public interest.
55 What that deals with, Mr Matisi, is the taking from you of a scraping from your mouth. It is a forensic procedure. I am not authorising a blood sample at this stage. So I am authorising the less invasive of the procedures. It is not a difficult business and it would involve the authorities asking you to run a swab around the inside of your cheek, on either side. It will not be invasive. I have to tell you though that the police may use reasonable force to engage in that process. They should not need to and if they encounter any difficulties, no doubt I would be met with an application to authorise a blood sample, which at this point I have not authorised. So that is all that is about.
Compensation
56 There is also a compensation order that is sought by the prosecution in favour of your past employers for the outstanding amount. Again, it is not opposed. I have signed that order as well. I am satisfied that that order which is sought under s.86 of the Sentencing Act is appropriate to make. You are convicted of theft. I am satisfied that the employer, Markham Australasia Pty Ltd has suffered loss and that loss is that which is spelt out in the order which I have signed of $2,616,180.80. So I have signed that compensation order. That operates as essentially a judgment debt against you.
Sentence
57
Your counsel, Ms Sleeth, argued that I could deal with you by way of the imposition of an aggregate sentence as across six charges, rather than imposing individual terms and pronouncing the levels of cumulation.
Mr Pickering, the prosecutor initially argued against such an outcome owing to the higher maximum sentence applicable for the continuing criminal enterprise offences but seemed to retreat to a degree from that position at the end of the day and suggested that really it was a matter for the court. Well there is that differing maximum as between the six charges. Three have the ten year maximum. Three have the 20 year max. But the conduct is the same, there is really no distinction. There is, in that sense, great unity as between the six charges. It is, in my judgment, a series of offences clearly of the same character broken down purely by way of the calendar in relation to three of the charges, and in the instance of the other three, that is the individual charges, the preference to have them stand alone owing to the higher maximum penalty at play. When sentencing a serious sexual or violent or drug offender, there is a prohibition upon aggregation in such a setting. The same cannot be said of a continuing criminal enterprise offender.
58 It would be open to me to pass six individual sentences then to make an order as to the base sentence and then pronounce levels of cumulation upon the base sentence. But I really see no need to here. I am unpersuaded that the fact of the higher maximums should rule out consideration of an aggregate sentence in this case. The fact is the most serious individual charge obviously would be the $1.4m theft, the subject of Charge 2, and it is punishable by the lesser ten year maximum. The continuing criminal enterprise offences, though carrying a higher maximum are far less serious than any of the rolled up transactions given that they involve a single transaction and of far lesser values than any of the rolled up charges. Though they have a higher maximum, that is as far as it goes and I see no need to impose individually greater sentences on those continuing criminal enterprise matters or even factor in a greater sentence for those matters within the aggregate sentence. I am going to pass an aggregate sentence in the circumstances of this case. I believe it is appropriate to do so.
59 Would you stand up please, Mr Matisi?
60 On Charges 1 through to 6 on this indictment, being the six charges of theft, I convict and sentence you to an aggregate period of six and a half years' imprisonment. That therefore is the head sentence.
Non-Parole Period
61 I fix a period of four and a half years' during which you will not be eligible for release on parole.
Pre-sentence detention
62 You have been in custody in relation to these matters for a period of four days and that period has already been served under this sentence. That s.18 declaration is to be noted in the records of the court.
CCE Offender status
63 So too your being sentenced as a continuing criminal enterprise offender on Charges 3,5 and 6. That is also to be noted in the records of the court.
Section 6AAA
64 I have taken into account your early guilty plea. I have passed a lesser sentence because of that fact. Had you been found guilty of these offences by a jury, I would have convicted and sentenced you to nine years' imprisonment. I would have fixed a non-parole period in those circumstances of seven years' imprisonment. That statement, made under the provisions of s.6AAA, is also to be entered in the records of the court. Have a seat please.
65 Now, Mr Pickering, Ms Sleeth, have I dealt with everything I need to deal with in terms of the formalities?
66 MR PICKERING: Yes, Your Honour.
67 MS SLEETH: Yes, Your Honour.
68 HIS HONOUR: Yes. Is there anything I have overlooked at all or nor, in terms of the formalities? No.
69 MR PICKERING: No, Your Honour.
70 MS SLEETH: No, Your Honour.
71 HIS HONOUR: How is your client going, Ms Sleeth, in terms of the medical issues? Has he had the Metamucil?
72 MS SLEETH: He did not get it for one day, the day Your Honour ordered it, unfortunately. But since then he has been having it each day.
73 HIS HONOUR: All right. Well I hope things pan out well for him. There is probably no need for me to make any further custodial orders, is there, at this stage and management?
74 MS SLEETH: No, Your Honour.
75 HIS HONOUR: You do not need me to?
76 MS SLEETH: No, Your Honour.
77 HIS HONOUR: Yes. Will you go down and see him downstairs?
78 MS SLEETH: Yes, Your Honour.
79 HIS HONOUR: Where has been in the last handful of days?
80 MS SLEETH: At MAP.
81 HIS HONOUR: Has he got access to visitors out there yet or not?
82 MS SLEETH: He had a visitor on the weekend.
83 HIS HONOUR: Good, all right. Grab a seat then. Yes, all right. I have signed that order. So that completes the matter. So Mr Matisi can be removed, thank you.
84 MS SLEETH: As Your Honour pleases.
(Prisoner removed.)
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