Director of Public Prosecutions v Mauger
[2021] VCC 860
•25 June 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-00214
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DEBBIE MAUGER |
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JUDGE: | HER HONOUR JUDGE CARLIN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 June 2021 |
DATE OF SENTENCE: | 25 June 2021 |
CASE MAY BE CITED AS: | DPP v Mauger |
MEDIUM NEUTRAL CITATION: | [2021] VCC 860 |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Plea of guilty – theft – rolled up charges – no prior criminal history – older offender – moral culpability high – 6AAA declaration
Legislation Cited: Sentencing Act 1991 (Vic); Crimes Act 1958 (Vic)
Cases Cited: Apted v the Queen [2021] VSCA 151; DPP v Caulfield [2019] VSCA 131; Worboyes v The Queen [2021] VSCA 169.
Sentence: Three years’ and three months’ imprisonment with a non-parole period of one year and ten months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms E. Rutherford | |
For the Accused | Mr S. Thomas |
HER HONOUR:
Introduction
1Debbie Mauger, on 14 December 2016, you, a then 52-year-old woman with an unblemished record and a good work history, stole the sum of $200 from your employer Melrose Sales Pty Ltd, a real estate business trading in Sandringham as Belle Property. That theft was the first step in the path to your appearance before me today. Over the next three years and two months you stole a total of $858,648.03 from Melrose.
2You were able to commit these thefts because of your position within Melrose of office manager and bookkeeper, a position you had had held since 2011. As such, you were responsible for payment of all Melrose's business accounts and payroll and for that purpose had access to its bank accounts. Although technically you stole from Melrose, you knew that in effect you were stealing from its directors, Jennifer Dwyer and Stephen Tickell, who trusted you completely and were, supposedly, your good friends.
3The details of your offending are set out in an agreed Summary of Prosecution Opening which was tendered on the plea. Suffice to say, on 211 occasions between 14 December 2016 and 20 February 2020 you dishonestly transferred sums ranging from $20.41 to $10,570 from one of Melrose's two bank accounts into one of two bank accounts operated by you in your own name.
4On 208 occasions you disguised the transfers by including them in group payments which were almost always for larger amounts and contained legitimate creditors. On 199 of those occasions, you falsely recorded the name of a creditor and expense against the payment that went into your account. For example, you recorded the name 'Printco-BTN' and 'advertising' against various sums that went to you. You also recorded your bank account name as something other than your name, for example, 'DM' or 'Metro Media', 'Westpac', or simply 'Account'.
5The three remaining transfers consisted of single unauthorised transfers totalling $11,847 into one of your accounts.
6In January 2020 Melrose's external accountant Gregory Feutrill began a review of the accounts after noticing various inconsistencies. He spoke to you several times, but to put it simply, you fudged. His enquiries no doubt led to your decision to resign from Melrose, which you did in March 2020, before Mr Feutrill reported his concerns to Mr Tickell.
7On 24 June 2020 you were arrested and interviewed by police. Although you must have expected this would happen, you found the experience traumatic. When the allegations were put to you, you said, 'I can't deny it' and expressed shock at the sum of $850,000, saying you had nothing to show for it. I will return to your interview later in these remarks.
8You were charged on the same day and have been on bail ever since. After several committal mentions the matter resolved on 5 February 2021 and you were committed to this court by way of straight hand-up brief.
9On 10 June 2021 you pleaded guilty before me to three rolled up charges of theft contrary to s.74 of the Crimes Act1958. Charge 1 consists of 45 separate thefts between 7 July 2017 and 20 February 2020 amounting to a total of $198,111.75. Charge 2 consists of 163 separate thefts between 14 December 2016 and 28 November 2019 amounting to a total of $648,689.26. Charges 1 and 2 comprise the group type payments. Charge 3 consists of the three individual transfers directly into your bank account totalling $11,847 which were made on 13 January 2017, 23 May 2018 and 3 February 2020.
10A plea on your behalf was conducted on the same day and it now falls to me to sentence you for your conduct. Your counsel, Mr Gullaci, appropriately conceded the seriousness of your offending and the inevitability of an immediate term of imprisonment comprising a head sentence and non-parole period.
11In arriving at an appropriate sentence, I am required by law to have regard to a variety of sometimes countervailing factors.[1] Some tend towards leniency, and some point the other way. No one factor automatically prevails. Rather, I must have regard to them all and give each one the weight it deserves to arrive at a just sentence.
[1] Section 5(2) of the Sentencing Act 1991.
Your personal circumstances
12Turning first to your personal circumstances. These were outlined in defence submissions, a report of forensic psychologist Sandra Cokorilo dated 2 June 2021, a letter from your treating psychologist Zoi Penoglou dated 20 May 2021, and a medical certificate from Dr Taryn Laurie dated 25 May 2021.
13You were between 52 and 56 years old at the time of the offending and are now 57. You were born in Melbourne and have one maternal half-sister, 18 years you senior, with whom you have no contact. According to Ms Cokorilo you described a difficult and traumatic childhood. Your father died of an asthma attack when you were five years old, whilst you and your mother were driving him to hospital. Thereafter, your mother worked hard to support your family but failed to provide you with the love you craved. On top of that you were sexually abused from age 10 by a family member.
14Despite these hardships you performed well in school and had positive relationships with teachers and peers. You left school after Year 9, as you wanted to start working. You worked for three years in a jewellery factory before joining your mother in clothing manufacturing. You then completed a secretarial course at a business college, after which you worked for a printing company, then as an import/export manager.
15You met your husband at age 21 and moved out of the family home and in with him. Whilst raising your three daughters – now aged 27, 31, and 32 - you intermittently did office work at various hotels in which your husband was also employed. You also taught dancing until you were 30. You worked in reception and payroll for Hodges Real Estate from 2006, before taking up your position at Melrose in 2011.
16Approximately two months after resigning from Melrose you found part time work as an office manager in an allied health practice and later you supplemented that with another job as a medical receptionist. You have recently finished both those roles in anticipation of your sentence today.
17Family is important to you. You are close to your daughters and grandchildren. Your 92-year-old mother lives with you and your husband. There have been some difficulties in your marriage but more recently your husband has been supportive.
18You have no history of mental health issues or substance or alcohol abuse, although you apparently drink alcohol to excess on a fairly regular basis.
19In June 2020 you reported anxiety, depression, and suicidal ideation to your general practitioner in the context of this matter. You were prescribed antidepressants which you still take. You commenced seeing clinical psychologist Ms Penoglou in August 2020 and as at the date of her report had seen her 14 times. You also sought treatment from a psychiatrist in 2021, but it was too expensive to continue.
20Ms Cokorilo saw you once, on 19 May 2021, and as well as interviewing you, performed psychometric testing. She diagnosed you with generalized anxiety and persistent and major depressive disorders. She considered difficulties and traumas experienced by you throughout your life, including 'early prenatal loss, perceived marital rejection and childhood sexual abuse' contributed to the development and/or exacerbation of these disorders. She also inferred that your poor coping mechanisms led to you developing a gambling disorder.
21Physically, you suffer from Celiac disease, ulcerative colitis, asthma, chronic lower back pain, and bursitis. You also told Ms Cokorilo that you had two falls in 2016 and 2017, which you believe caused concussion and may have negatively impacted your memory, however you have never sought medical treatment or confirmation of this.
Objective Gravity of your offending and moral culpability
22The crime of theft is punishable by a maximum penalty of 10 years and covers a wide spectrum of offending from simple shop thefts to sophisticated frauds.
23Your charges are serious examples of the crime by virtue of their being rolled up counts involving repeated offending over lengthy periods, large sums of money and gross breaches of trust.
24You not only breached the trust reposed in you as an employee, but also the trust reposed in you as a friend and colleague. It is hard to fathom the depths of your deception. For over three years you interacted and socialised with Ms Dwyer and Mr Tickell, all the while knowing that you were stealing from them. You had ample opportunity over the more than three years of your offending to reflect on your conduct and desist, but you did not; instead making repeated separate decisions - 211 to be precise - to steal from them. You only stopped when questions started to be asked by the accountant and then you attempted to deceive him.
25Your offending also involved subterfuge in that you disguised payments to you by including them in group payments, and also by falsifying business records. Whilst I accept, as Mr Gullaci submitted, that your methodology was not highly sophisticated and that you were bound to be detected eventually, the fact remains that you did attempt to conceal your behaviour. This adds to your overall criminality.
26The obvious question is why? What caused you, a woman with so much to lose, to do this? There is no doubt you knew what you were doing was wrong. You readily admitted this to the police in June 2020 and said it was especially wrong given that you idolised your employer.
27The police asked you why you stole $850,000 and you said this:
'well why is because, you know, maybe you want to buy the kids something and didn't have enough of my own money, you know, with paying rent and all those bills.'[2]
[2] Q and A 117 to 118.
28You told the police you were earning about $85,000 a year and specifically denied having any mental health issues or being in financial difficulty, albeit you also said that the money you stole assisted your financial situation. You struggled to account for where the money went, saying you did not own a house, investment properties or shares. You said you spent a lot on your children and grandchildren and some on clothes and rent and bills. You also told the police that you gambled on the pokies and guessed that you might have spent $100,000 doing that and probably could spend $1,000 in a night.
29You presented a somewhat different scenario to forensic psychologist Ms Cokorillo when you saw her in May 2021. You claimed you were experiencing financial pressure due to your husband being mainly unemployed and claimed you were 'desperate to appease him' as you feared he would end the marriage and you wanted to 'avoid disagreements with [your] husband about spending'. You said you then started gambling in the hope of winning money to pay back what you stole and found yourself in a downward spiral.
30Based on the account you gave her Ms Cokorillo considered your depressive and anxiety disorders existed at the time of your offending as well as at the time she saw you. She said:
'Whilst [your] gambling disorder undoubtedly contributed to your criminal activity, [your] compromised mental health and underlying personality disposition are thought to have played a significant role in the offending and predisposed [you] to a gambling disorder'.
31As I indicated to Mr Gullaci during the plea I have some difficulties with Ms Cokorillo's opinion and the account you gave her. In oral submissions Mr Gullaci clarified the situation thus. Your husband was out of work briefly in 2016. He was at times financially controlling and verbally aggressive. When you first started to steal you discovered a sense of freedom from not having to account to him for your expenditure. At least half the money you stole went on gambling, however you were not a pathological gambler.
32Mr Gullaci did not contend that your gambling was a mitigating circumstance as opposed to a partial explanation. He also did not contend that your moral culpability was reduced on account of any mental impairment you suffered at the time of your offending. That is, he was not relying on the well-known case of Verdins in that respect.
33I accept the oral submissions of Mr Gullaci and the position as clarified by him.
34Your bank statements were forensically analysed to try and determine what you did with the money. They showed the following transactions during the period of offending:
$257,000 cash withdrawals consistent with you gambling on poker machines;
$178,000 of untraced transfers entitled flexi loans, which Mr Gullaci believed was another means of you accessing cash;
$151,000 spent via eftpos, BPAY or card purchases;
$66,000 spent on Apple iTunes store;
$40,000 to third parties related to you, such as your daughters;
$31,000 spent on healthcare/cosmetics or pharmacy expenses;
$20,000 on credit card;
$12,000 on travel; and
$7,000 on lotteries.
35In essence you were stealing to give you financial freedom and to maintain a lifestyle of your choosing, which lifestyle included gambling. Your offending was calculated, premeditated and protracted. Whilst I take into account the hardships you have faced throughout your life, they have little bearing on your moral culpability, which I regard as high.
Current Sentencing Practices
36One of the matters to which I must have regard in arriving at an appropriate sentence for you is current sentencing practices which may be gleaned from statistics or sentences imposed in other cases or both.[3]
[3] The rationale for doing this is to promote consistency of approach in sentencing, particularly, the application of relevant sentencing principles.
37Statistics are of limited assistance in this case given the vast disparity in seriousness of the offence of theft, even within the County and Supreme Courts. Sentences imposed in comparable cases are of more use and I am grateful to the prosecutor Ms Rutherford, and to Mr Gullaci for referring me to a number of cases involving thefts from employers, including the often-cited case of
DPP v Caulfield.[4] To those cases I would add the case of Apted v The Queen which was determined by our Court of Appeal on 7 June 2021.[5] Apted was charged with obtaining financial advantage by deception not theft, but that is of no consequence. She misappropriated $970,000 from her employer over four years by means of 201 separate transactions using a group type transfer to disguise the payments, just as you did. She was 57 at the time of sentence, had no prior convictions, pleaded guilty and was remorseful. There was a mitigating factor, which you do not have, of a long delay between detection and charge. She spent the money on gambling and drinking and made no restitution to her victims. She had experienced some hardship in her life and was diagnosed with post-traumatic disorder, depression, alcohol use and gambling disorders. Her offending, like yours, had a dramatic effect on her employer, which was a small family business. She was sentenced to four years with a non-parole period of two years, six months at first instance which was reduced on appeal to three years, nine months with a non-parole period of two years, three months.[4] [2019] VSCA 131.
[5] [2021] VSCA 151.
38I have referred to the case of Apted in some detail because it is the most recent and is quite similar, but I have considered all the cases to which I was referred. It is important to state that sentences imposed in other cases are not binding precedents to be applied or distinguished, nor do they set the outer parameters of appropriate sentences. They are however a convenient yardstick against which to measure the sentence I propose in the unique circumstances of your case.
Impact of your offending
39Other matters I am required to take into account are the impact of your offending on your victims, and their personal circumstances.[6]
[6] Section 5(2)(daa), (da) and (db) of the Sentencing Act 1991 (Vic).
40Victim impact statements from the two directors of Melrose, Ms Dwyer and Mr Tickell outlined the enormous impact of your crimes on their business and themselves personally.
41Ms Dwyer expressed despair and bewilderment as to how someone she trusted and respected could betray her in the way you did. She suffered feelings of self-doubt and anger and questioned her right to be a business owner at all. Further, she described how the toll of dealing with the aftermath of your crimes, which included efforts to prevent the business from collapsing, seriously affected her ability to perform her professional role as a real estate agent. She said that because of your offending retirement is 'not even remotely possible' at this time, despite having worked 20 years in the real estate field. She explained how not knowing what you did with the money added to her anxiety and anger.
42Similarly, Mr Tickell experienced a roller-coaster of emotions in coming to terms with what you did, including feelings of humiliation, self-doubt and embarrassment. He confirmed that Melrose, which was a small real estate business, struggled to survive following your thefts. He said it had suffered serious damage to its reputation and had only recently managed to repay its unpaid creditors. At age 62 Mr Tickell has had to delay his retirement plans by several years because of your crimes. Referring, finally, to the longstanding friendship his family had formed with yours, he asked 'if you can’t trust such close friends, who can you trust?' and said that your actions have left 'a scar that cannot be erased'.
43It is a common response of victims of your sort of offending to question their judgement and feel embarrassed, however I can assure Ms Dwyer and Mr Tickell that they are in no way responsible for what happened. The blame lies entirely with you.
Plea of Guilty, co-operation and remorse
44You are entitled to a significant discount in your sentence for the fact you pleaded guilty at a very early stage. In so doing you facilitated the course of justice, took legal responsibility for your crimes, and spared your victims the experience of coming to court to give evidence. Your early cooperation with the police also avoided the need for further investigation by them. The need for sentences to reflect the high value of pleas of guilty in the current COVID-19 environment has been recently reinforced by our Court of Appeal and I take this into account.[7]
[7] For example Worboyes v The Queen [2021] VSCA 169 at [39].
45Whilst indicative of remorse, a plea of guilty does not, of itself, prove remorse which is more than simply regret at being caught. I do not know precisely how you explained your conduct to your character witnesses, however they consistently described your deep shame and regret at the suffering you have caused, not just to your family, but to your former employer. The two psychologists similarly described your anguish.
46I doubt these expressions of remorse are of any comfort to Ms Dwyer and Mr Tickell who still struggle to understand your absolute betrayal and, it must be said, have not received a cent from you.[8] Further, the repeated and protracted nature of your offending does tend to militate against a finding of remorse. In the end however, the preponderance of the evidence has persuaded me that you do genuinely feel sorry for what you did and the harm you have caused. I take that into account in your favour.
[8] Failure to make restitution is not an aggravating feature, rather it is the absence of a mitigating factor.
Your character and risk of reoffending
47You have no prior or subsequent criminal involvement and up until this offending were a worthwhile contributing member of society. Whilst this is not uncommon for offending such as yours, it is still a matter in your favour.
48Six character references were tendered on your behalf. They were from friends, your son in law and one of your subsequent employers. All stated that you had told them what you had done. In short, they described you as honest, respectful, reliable, responsible, caring and loyal. It is hard to reconcile the person described in those references with the person who acted so selfishly and dishonestly over more than three years, but I accept that that is how they know you.
49You have not gambled since being charged. Treating psychologist, Ms Penoglou says in her letter to the court that through self-reflection and therapy, your outlook has changed enormously, and you have 'learned a lot and created a positive change already'. Forensic psychologist Ms Cokorilo assessed your risk of reoffending as low on account of your absence of criminal priors, stable prosocial history, social and family supports and desire to improve yourself.
50Whilst the repeated and protracted nature of your offending is again very troubling, I consider that your prospects of rehabilitation are good for the reasons expressed by Ms Cokorilo.
The burden of imprisonment
51In determining the appropriate sentence, I must consider how a term of imprisonment would be likely to impact you.
52There are a number of reasons why a term of imprisonment may be particularly difficult for you and I take them all into account in your favour.
53First, you are aged 57 with no prior convictions of any sort. Facing a term of imprisonment for the first time is difficult for anyone, let alone someone of your age with absolutely no prior involvement in the criminal justice system.
54Secondly, your depression and anxiety will probably mean that the experience of prison will be harder for you than someone not suffering from those conditions.
55Thirdly, it is likely that imprisonment will have a detrimental effect on your mental state.
56Finally, although this is not peculiar to you, you are being sentenced during the COVID-19 pandemic. I accept that a term of imprisonment during the pandemic is generally harder than at other times. Whilst the worry of contracting the virus in prison has probably abated, the curtailment of various activities and programs, the reduction or suspension of personal visits and the occasional lockdowns are all additional burdens.
Purposes of Sentencing
57In addition to specifying matters to which I must have regard in arriving at an appropriate sentence, the Sentencing Act 1991 (Vic) prescribes the purposes, indeed the only purposes, for which a sentence may be imposed. These are just punishment, deterrence, rehabilitation, denunciation, and protection of the community. I am obliged not to impose a more severe sentence than is necessary to achieve those sentencing purposes. A custodial sentence must only be imposed as a last resort and then must be the absolute minimum required.
58Further, when there are multiple charges, as here, the total effective sentence must not offend the principle of totality, particularly given the overlapping nature of the charges. What that means is that you must not be punished any more than is proportionate and appropriate to your overall criminality. I have sought to ensure that does not happen by my orders for cumulation and concurrency.
59The courts have repeatedly emphasised the importance of general deterrence in cases such as yours. The offences are often difficult to detect and investigate and are usually committed by people in positions of trust with no prior criminal history. The sentence I impose must deter other like-minded individuals from acting as you did. They must know that the sentence they will receive if caught outweighs any short-term benefit. My sentence must also denounce your conduct, which was reprehensible.
60I do not see specific deterrence or community protection as significant sentencing considerations in your case. Further, the need for just punishment requires that in fixing my sentence I take into account the various mitigating factors that apply to you and I do so. I have already outlined those factors in detail during the course of these remarks.
61Balancing the competing considerations as best I can I sentence you as follows.
Sentence
62And I will ask if you could stand up please now.
63On Charge 1, I convict and sentence you to 12 months' imprisonment
64On Charge 2, I convict and sentence you to three years' imprisonment. That is the base sentence.
65On Charge 3, I convict and sentence you to three months' imprisonment.
66I direct that three months of the sentence imposed on Charge 1, be cumulative on the sentence imposed on Charge 2. I direct the sentence on Charge 3 be wholly concurrent with the sentences on Charges 1 and 2. So that makes a total effective sentence of 39 months, or three years and three months, and I set a non-parole period in respect of that sentence of 22 months. In other words, one year and 10 months.
67So, that that means that is the earliest time at which you can be released. That is one year and 10 months from today. It is up to the Adult Parole Board as to whether or not you are released at that time.
Pre-sentence Detention
68You have not served any pre-sentence detention in respect of this sentence and I order that this be entered in the records of the court.
Section 6AAA
69If you had not pleaded guilty to these charges and been found guilty by a jury, I would have sentenced you to a total effective sentence of imprisonment of four years and eight months with a non-parole period of three years and three months.
70So, Ms Mauger, do you understand that sentence?
71OFFENDER: Could you just the last one.
72HER HONOUR: The last one is what I would have sentenced you to if ‑ ‑ ‑
73OFFENDER: Would’ve, thank you.
74HER HONOUR: ‑ ‑ ‑ you had not pleaded guilty.
75OFFENDER: Thank you.
76HER HONOUR: So the sentence I actually sentenced you to is three years and three months, that is the total effective sentence. Non-parole period, 22 months.
77Can I ask counsel are there any other matters that I need to attend to?
78MR THOMAS: No, Your Honour, as Your Honour pleases.
79MS RUTHERFORD: No, Your Honour.
80HER HONOUR: I will leave the Bench, I understand your husband's in court? Yes. I will leave the Bench and just allow you to say goodbye and then you will be removed and taken into custody.
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