Director of Public Prosecutions v McKernan

[2017] VCC 316

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-02010

DIRECTOR OF PUBLIC PROSECUTIONS

v

RACHAEL McKERNAN

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	28 March 2017
CASE MAY BE CITED AS:	DPP v McKernan
MEDIUM NEUTRAL CITATION:	[2017] VCC 316

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Kenna
For the Accused	Mr N. Brown

HIS HONOUR:

1Rachael McKernan, you have pleaded guilty to five charges of obtaining a financial advantage by deception and one charge of theft.  You have admitted your criminal record, which contains a conviction for a similar matter, on
15 November 2009 at the Broadmeadows Magistrates' Court, obtain property by deception, false account required for accounting purposes for which you were placed on a community-based order for 18 months and I note with conditions to undergo gambling counselling.  Indeed, as I work out that period, you began offending approximately six months after you would have stopped the CCO.

2Would you gentlemen just check that and I will see if I am right, that it is
18 months, which brings it to 2010, about May 2011, and the offending began on 27 November 2011?  Thank you.

3Your criminal record matter is obviously a relevant matter here for my sentencing purposes as it goes to what is called specific deterrence, that is I have to impose a sentence upon you that might convince you not to re-offend.  As I have just noted, you were re-offending approximately six months later in a similar way but on a much larger scale after undergoing an 18 month CCO.

4The facts of the matter are set out in the summary of prosecution opening, Exhibit 1.  I will not recount them in any great detail.  They are not disputed by your counsel.  Any reader of these reasons can refer to that summary to place the sentence in its factual context.

5Briefly stated, the offending occurred between November 2011 and April 2014 when you were aged between 31 and 34.  You had commenced employment as a bookkeeper on 10 October 2011 with Vehicle Development Corporation.  Within four weeks of commencement at that company you began to steal company funds and overall stole funds by way of electronic transfer from company accounts into your own accounts, misuse of credit cards and use of fuel cards to the value of $1,128,506.26.  Your employer uncovered your offending on 7 November 2013 and your employment was terminated on
13 November 2013.  You had provided false information to VDC relating to your previous employment upon an interview for the job with them.

6What is of concern here is not only the size of the money taken but the repetitious nature of your offending.  That is set out in the summary of the charges in paragraphs 30 to 35 of the prosecution opening.

7You deposited $743,460 into your TAB account during the period of your employment from 18 April 2012 to 14 December 2013 you deposited $652,290 via a credit card and $10,952 in cash into your TAB account and placed bets to the value of $1,641,341 and withdrew from the account 408 - $348,990.  Paragraph 46 of the prosecution opening sets out further items of expenditure including corporate boxes for AFL matches to the value of $67,160, vehicle, hotel accommodation, concerts, et cetera.

8You have no substantial funds and no recovery has been made.  The total amount taken, only $84,000, has been recovered by the victim.

9A victim impact statement was tendered and read to the court by Darren Trevor Waugh, the owner of VDC.  Amongst other things he says that he had to take out a mortgage of $1 million on his family home to cover the misappropriated moneys.  It has cost him around $60,000 in legal fees to bring a civil case to court, apart from the stress and toll that it has taken upon himself and his family.  There was a civil court order to the tune of $1,273,403.08.

10You fully admitted the matters to the police and entered an early plea of guilty.

11I have taken into account the following matters:

(1) your plea of guilty and your full admissions.  The plea has meant that the court is saved the cost, expense and trauma of a jury trial. Also it is an acceptance of responsibility by you and in these types of financial fraud where trials can be lengthy it is not a matter of insignificance;

(2) your personal background, which is set out in your counsel's outline of plea submissions, and also in the psychological report he tendered from Ian Joblin, a forensic psychologist.

12You have five children from two relationships.  You have a complicated history of mental health issues, which are set out by the reports of Dr Yasser Alaskary, the medical documents from the North Western Mental Health concerning an admission on 1 November 2015 in relation to a suicide attempt.  You completed Year 11 at school.  You became pregnant in 1996 but terminated the pregnancy.  You grew up with your parents.  Your sister gave evidence and substantiated the matters you told Mr Joblin in relation to the very disturbing circumstances of the violence you suffered in the family, particularly from your mother.  Your father was an alcoholic.

13Your counsel told me that at the moment you have been living at your mother's place but rarely venturing outside the room that you sleep in.  On
23 January, Dr Alaskary details a self-harm episode relating to Boxing Day.  In a report dated 15 September 2016 he notes that you suffer from agoraphobia and details the medication that you are on.  His last report on 21 March 2017 says that you are on Valium.  The line previous to that said that you are also on Lexapro.

14In his report and also in his evidence Mr Joblin set out his assessment of you.  He said you are extremely despondent and depressed.  You are of reasonable intellect.  He recounted that you had had a number of suicidal thoughts, which is reflected in the material that has been tendered.  You outlined to him your drug problems, particularly with methamphetamine.  You said to him that some of the moneys that you were taking were used to finance your drug problem in addition to your gambling.  He opines that while some of the money went into gambling he as not of the view that the motivation of the offending was to support a gambling habit, rather, it seems the gambling was designed to attract finance, he said, which you could own legitimately and also, more importantly for you, to pay the ice dealers.  In my view, the funds taken were substantially used to fund a gambling problem in addition to your drug issues.

15In his opinion he said you were very disturbed, you have been troubled over the last few years of memories of sexual abuse, although you could not be specific about that.  He detailed the violence you had suffered from your mother during your upbringing.  He said there are two possible diagnoses.  One would be a diagnosis of bipolar or borderline personality.  He said you had a very strong suicidal ideation.

16The submission was made that points 4 and 5 of the well known case of Verdins were invoked by the report of Mr Joblin in paragraph 16 of his report, when which he said:

"As indicated, in my opinion, she's a very disturbed lady with a diagnosis of either bipolar or borderline personality disorder".

17No evidence has been put before me to substantiate that, or that medication that has been prescribed for you would not be given to you whilst you are in custody and that the mental health issues that you do have cannot be adequately dealt with, so I reject that submission.

18However, I do take into account your longstanding mental health issues which reflect the context of your offending and no doubt you will have a difficult time in prison because of your mental health issues.  I take into account the delay in the matter.  Your employment ended on 13 November 2013.  However, you were not interviewed until 1 February 2016 and the matter was pleaded to on 1 November 2016.  Delay is an important mitigatory factor, in my view, in this case.  It goes to the issue of the stress that you have been placed under with the matter hanging over your head for that period of time.  Often that period of time is used by people to enable the submission to be put that rehabilitation has occurred.  It is not suggested that you have re-offended during that period of time, so that is a positive thing from that point of view.  That is re-offended in this way but there is more than a suggestion that you have used illegal drugs during that period of time.

19I have taken into account the principle of totality, that is to impose a sentence that is proportionate to the offending, this is your first time in custody.  As I said, your sister gave evidence and I was impressed by what she said about you. 

20The basic purposes for which a court may impose a sentence are punishment, general deterrence, both general and specific rehabilitation, denunciation and protection of the community.  In sentencing you I must have regard to a range of matters, such as the seriousness of the offending, your culpability for it, your personal circumstances and those of the victim, if any.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure, as far as possible, offenders are rehabilitated into society.

21I express my denunciation of your behaviour.  You were in a position of trust by your employer.  You abused that trust.  These types of cases, unfortunately, are all too common in this court where very significant amounts of money are taken by employees, often in the position of a bookkeeper or an accountant.  A number of cases were put to me as to what other courts have done in relation to this type of offending and the amounts involved.

22Pursuant to s.9(1) of the Sentencing Act, if I am satisfied of the prerequisite matters there I can impose an aggregate sentence. I intend to do so because, in my view, the offences are founded on the same facts or form a part of a series of offences of the same or a similar character. That is your conduct involved you taking, in a repetitive fashion, large amounts of money in your capacity as a bookkeeper from your employer, as is set out in the opening, Exhibit 1.

23Taking all those factors into account and the submissions made by both parties, including current sentencing practices, the nature and gravity of the offending, your culpability for it, I sentence you to a term of imprisonment of four years and nine months with a non-parole period of two years and nine months.  It is clear that the period of five days that you have already served be reckoned to be part of the term of imprisonment that I have just imposed.

24Pursuant to s.6AAA of the Sentencing Act that if you had proceeded to trial and you were convicted by a jury of these matters, I always add a caveat, I find it extremely difficult to give a 6AAA declaration. There are all sorts of other factors that could be apparent after trial, but as I am required to do so I will make a speculative estimate of the sentence I would have given you. It would be in the order of seven and a half years with a non-parole period of six years.

25Were there 464 orders?

26MR KENNA:  Your Honour, you have previously signed that order.

27HIS HONOUR:  I have signed those?  All right.  Any other orders I need to make?

28MR KENNA:  No, Your Honour.

29HIS HONOUR:  Any other matters I need to attend to?

30MR BROWN:  No matters from my view, Your Honour.

31HIS HONOUR:  All right, thank you.  Take Ms McKernan out, thank you.

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