Director of Public Prosecutions v Melnikas
[2015] VCC 1763
•11 December 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-01575
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Christine Melnikas |
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JUDGE: | Lewitan | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 October 2015 | |
DATE OF SENTENCE: | 11 December 2015 | |
CASE MAY BE CITED AS: | DPP v Melnikas | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1763 | |
REASONS FOR SENTENCE
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Subject: Theft
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A Hassan | Vaille Anscombe Acting Solicitor for Public Prosecutions |
| For the Accused | Mr P Higham | Doogue O’Brien George |
HER HONOUR:
1 You, Christine Melnikas have pleaded guilty before me to six charges of theft. The maximum penalty for each of those charges is ten years' imprisonment.
Circumstances of Offending
2 You stole a total amount of $209,134.17 from the Banyule and Districts Netball Association Inc in the period from February 2007 until October 2012.
3 The Banyule and Districts Netball Association Inc (BDNA) is an incorporated association established as a not for profit sporting organisation. It has a home venue that operates out of the Banyule Netball stadium at 2 Somers Avenue, Macleod and was formed by members of the Macleod Netball Club.
4 BDNA runs netball competitions, holiday programs, conducts coaching and umpiring development courses. There are two netball seasons in a calendar year, being spring and winter. Various netball clubs and teams register each season for the netball competitions. These clubs and teams were members of BDNA and include Ivanhoe Netball Club, Macleod Netball Club, Diamond Valley Netball Club, Alphington Netball club and others.
5 In 2004 there were approximately 176 teams consisting of some 1,760 players who played in competitions from under 9s through to open age competition.
6 The statement of purpose of BDNA was to run and oversee the running of a netball complex and competitions, to encourage and promote the game of netball and to promote friendship through sport in the community.
7 You were employed to run the BDNA. You were paid $36,000 per year. You were in a position of trust.
Charge 1: Court Hire Charges
8 Between 5 February 2007 and 3 July 2012 you received payments from competing clubs for the use of the netball courts. These funds were to be recorded in the accounts of BDNA. On many occasions the payments were not recorded and were used by you for your own benefit. You used $100,000 of those funds for your own benefit.
Charge 2: Westpac Cards
9 You and your husband hold a Westpac Visa card. On 18 March 2008 you wrote a cheque from the BDNA Competition Account for $1,680.05. There was no cheque butt or invoice. Its details had been entered into the club’s accounting system in the name of a fictitious payee (Sharp). A copy of that cheque revealed it was made out to Westpac and was credited to your Westpac Visa account on 25 March 2008.
10 On 19 April 2008 you wrote a cheque from the BDNA Competition Account for $947.66. There was no cheque butt nor any invoice created, but it was entered into the club's accounting system MYOB as “BDNA” for $60. A copy of that cheque revealed it was made out to Westpac Visa and was credited to your Westpac Visa account on 23 April 2008.
11 On 20 April 2009 you wrote a cheque from the BDNA Competition Account for $1,756.26. A copy of that cheque revealed it was made out to Westpac Visa and was credited to your Westpac Visa account on 29 April 2009. The cheque butt stated it was for umpires and its details entered into the club’s accounting system MYOB as “Christine Ann Melnikas” for $550.40.
12 On 20 April 2009, you wrote another cheque from the BDNA Competition Account for $1,756.26. The cheque butt stated it was for “BCC” (Banyule City Council). No invoice was created nor its details entered into the club’s accounting system. A copy of that cheque revealed it was made out to Westpac Visa and it was credited to your Westpac Visa account on 22 September 2009.
13 On 24 January 2011 you wrote a cheque from the BDNA Representative Account for $4,445.20. The cheque butt invoice and entry into the club’s accounting system MYOB was for “Comet Netballs”. The invoice read for the purchase of 100 netballs. A copy of that cheque revealed it was made out to Westpac Visa and was credited to your Westpac Visa account on 27 January 2011. Enquiries with Comet Netball revealed they did not raise that invoice, nor had they supplied BDNA.
14 On 1 March 2011 you wrote a cheque from the BDNA Competition Account for $4,445.20. The cheque butt stated it was a payment to “Office Works” but there was no invoice created nor were the details entered into the club’s accounting system. A copy of the cheque revealed that it was made out to Westpac Cards and was credited to your Westpac Visa account on 7 March 2011.
15 On 15 September 2011 you wrote a cheque from the BDNA court hire account for $4,834.34. The cheque butt stated it was for “BLFM, rep TIG”. There was no invoice created, nor were its details entered into the club’s accounting system. A copy of that cheque revealed it was made out to Westpac Visa and was credited to your Westpac Visa account on 19 September 2011.
16 On 19 March 2012 you wrote a cheque from the BDNA Competition Account for $2,044.61. The cheque butt stated “officeworks” and the details were entered into the club’s accounting system as “Office Works”. A copy of that cheque revealed it was made out to Westpac Cards and was credited to your Westpac Visa account on 22 March 2012. Enquiries with Office Works revealed no invoices for that account.
17 The total value of cheques presented in relation to you Westpac Visa account was $21,888.64.
Charge 3: Direct Netball
18 In 2005 you registered Banyule Direct Netball Competitions, with your husband and parents registered as board members. Between 4 February 2009 and 3 July 2012, you wrote seven cheques payable to Banyule Direct Netball Competitions from the BDNA totalling $17,167.25. There was no justification for those cheques to be written and you were not entitled to those funds.
Charge 4: ANZ Bank
19 On 24 May 2008, you wrote a cheque from the BDNA Competition Account for $678. The cheque butt had been removed and there was no entry in the club’s accounting system. A copy of that cheque revealed it was made out to ANZ cards and was credited to your ANZ visa card on 27 May 2008.
20 On 4 September 2009, you wrote a cheque from the BDNA Competition Account for $1,233.66. A copy of that cheque revealed it was made out to ANZ cards and was credited to your ANZ Visa card on 7 October 2009.
21 On 6 January 2011 you wrote a cheque from the BDNA Competition Account for $2,055.92. The cheque butt stated it was for “Netball Vic” and was entered into the club’s accounting system as Netball Victoria with a different cheque number. An invoice was created for Netball Victoria and read "VNA insurance". A copy of that cheque revealed it was made out to “ANZ cards” and was credited to your ANZ visa card on 10 January 2011. Enquiries with Netball Victoria revealed it was not one of their invoices, nor had they invoiced BDNA for that amount.
22 On 24 January 2011 you wrote a cheque from the BDNA Representative Account for $2,255.59. The cheque butt stated it was for “Rebel Sports” and its details were entered into the club’s accounting system as Rebel Sports. A copy of that cheque revealed it was made out to ANZ cards and credited to your ANZ Visa card on 27 January 2011.
23 On 3 May 2011 you wrote a cheque from the BDNA Representative Account for $2,221.06. The cheque butt stated it was “BLFM” (Banyule Leisure Facility Management) and its details were entered into the club’s accounting system as “B.L.F.M.” A copy of that cheque revealed it was made out to ANZ cards and was placed on your ANZ visa card on 6 May 2011.
24 On 3 February 2012 you wrote a cheque from the BDNA Competition Account for $1,759.53. The cheque butt stated it was “C. Melnikas” and its details were entered into the club’s accounting system to Christine A Melnikas for $1,106.50 and BDNA Competition Account, $650.03. An invoice was created for “Carol Park work over holidays” for $650.03. A copy of that cheque revealed it was made out to ANZ cards and was placed on your ANZ visa card on 6 February 2012. Your signature was the only signature that appeared on that cheque in breach of the club’s constitution.
The total amount paid to ANZ was $10,203.76, none of which you were entitled to.
Charge 5: American Express
25 On 7 July 2004 an application was lodged for an American Express Visa card in the name of Christine and Mark Melnikas. The application was successful.
26 On 8 June 2009 you wrote a cheque from the BDNA Representative Account for $2,000. The cheque butt stated it was for “Banyule Leisure Facility Management (BLFM)” but was made out to American Express and credited to your account.
27 On 5 October 2009 you wrote a cheque from the BDNA Competition Account for $12,096.82. The cheque butt had been recorded as “BCC” (Banyule City Council). Its details were entered into the clubs accounting system as Banyule Leisure Facility Management (BLFM). Enquiries revealed that the cheque was made out to American Express and was credited to your American Express account on 7 October 2009. Analysis of your American Express card account showed an opening balance of $105.57 and the purchase of an overseas holiday. You travelled to Bali with your husband and children from 2 September 2009 to 1 October 2009.
28 On 4 May 2010 you wrote a cheque from the BDNA Holding Account for $2,933.88. The cheque butt had been removed and its details not entered into the club’s accounting system. Enquiries with Westpac revealed it was made out to American Express and was credited to your American Express account on 6 May 2010.
29 On 31 August 2010, you wrote a cheque from the BDNA Competition account for $2,251.09. The cheque butt stated it was for Ocean Software. It had been entered into the club’s accounting system as Ocean Software. An invoice had been created for Ocean Software. Enquiries with Westpac revealed that the cheque was made out to American Express and was credited to your American Express account on 2 September 2010. Enquiries with Ocean Software revealed that they had never raised this invoice or dealt with BDNA.
30 On 6 January 2011 you wrote a cheque from the BDNA Representative Account for $4,170.44. The cheque butt stated it was for “Netball Victoria”. Its details were entered into the MYOB system as “Netball Vic”. An invoice was created for Netball Victoria NMAS contract 2011. Enquiries with Westpac revealed that the cheque was made out to American Express and was credited to your American Express account on 10 January 2011. Enquiries with Netball Victoria revealed that it does not charge affiliates for NMAS system usage and have never invoiced BDNA for that amount.
31 On 7 March 2011 you wrote a cheque from the BDNA Competition Account for $4,089.35. The cheque butt stated it was for “RAM Enterprises”. An invoice had been created for RAM Enterprises. Enquiries with Westpac revealed that the cheque was made out to American Express and was credited to your American Express account on 7 October 2009.
32 On 3 May 2011, you wrote a cheque from the BDNA Representative Account for $3,000. Its details were entered into the clubs accounting system as “Netball Victoria”. The cheque butt had been removed and an invoice had been created for “VNA rego for academy players”. Enquiries with Westpac revealed that the cheque was made out to American Express and was credited to your American Express account on 9 May 2011. Enquiries with Netball Victoria revealed that they have never invoiced BDNA for that amount.
33 On 5 September 2011, you wrote a cheque from the BDNA Competition Account for $5,000. The cheque butt stated it was for Pro Comp-Comp and its details entered into the club’s accounting system as such. Enquiries with Westpac revealed that the cheque was made out to American Express and was credited to your American Express account on 8 September 2011. Enquiries with Prowess Sports revealed that they have never invoiced Banyule and Districts Netball Association for that amount.
34 On 5 September 2011, you wrote a cheque from the BDNA Competition Account for $5000. The cheque butt stated it was for NE Blaze September to December contract fee. You failed to enter the cheque details into the club’s accounting system. Enquires with Westpac revealed that the cheque was made out to American Express and was credited to your American Express account on 8 September 2011.
35 On 5 November 2011, you wrote a cheque from the BDNA Competition Account for $6,052.36. The cheque butt stated it was for “court hire rep trials” but its details were not recorded into the club’s accounting system. Enquiries with Westpac revealed that the cheque was made out to American Express and was credited to your American Express account on 8 November 2011.
36 On 16 January 2012 you wrote a cheque from the BDNA Representative Account for $4,152.62. The cheque butt stated it was for “Pro Comp”. The details entered into the club’s accounting system was “Prowess competition software and service”. Enquiries with Westpac revealed that the cheque was made out to American Express and was credited to your American Express account on 20 January 2012.
37 On 5 June 2012, you wrote a cheque from the BDNA Representative Account for $2,680.97. Enquiries with Westpac revealed that the cheque was made out to American Express and was credited to your American Express account on 7 June 2012.
38 On 2 October 2012, you wrote a cheque from the BDNA Competition Account for $3,193.09. There was no cheque butt. The details entered into the club's accounting system were “Banyule Leisure Facility Management (B.L.F.M).” Enquiries with Westpac revealed that the cheque was made out to American Express and was credited to your American Express account on 8 October 2012.
39 The total value of these cheques was $56,619.80. You were not entitled to any of the $56,619.80 paid to your American Express Card (charge 5).
Charge 6: Bank of Melbourne
40 In 2002, an application for a Visa card was made in the names of Christine and Mark Melnikas with the Bank of Melbourne with a card issued with a credit limit of $12,500.
41 On 21 September 2012, you wrote a cheque from the BDNA account for $3,253.90. The details of the cheque were entered into the club’s accounting system as “Banyule Leisure Facility Management”. A copy of that cheque revealed it was made out to Bank of Melbourne and was credited to your Bank of Melbourne Visa account on 25 September 2012. You were not entitled to these funds.
Arrest
42 On 19 July 2013 members from the Banyule (Heidelberg) Crime investigation Unit attended your home, where a search warrant was executed. Police seized computers, bank records and other relevant documents in relation to the investigation. You were interviewed at the Heidelberg police station on 19 July 2013 after receiving legal advice. During the interview you denied any wrongdoing.
43 The facts in this case are very serious and disturbing. The aggravating features include the gross breach of trust and the element of pre-planning. You offended over a period of more than five years from 2007 to 2012. You were the only person who had access to the club’s accounting system, MYOB. Over that period you deliberately attempted to hide the discrepancies by falsifying invoices and payments. You stole this money from a not for profit organisation set up to promote the sport of netball for the benefit of young children and the community.
44 Six victim impact statements have been filed by persons associated with BDNA. Rhonda Watson[1], Julie Hibberd[2] and Peter Weir[3] (vice president and assistant treasurer of the BDNA) spoke of the disruption, personal stress, loss of trust and countless hours spent by the board members in reconciling the accounts of BDNA. Leo Pentoni[4], board member, stated that BDNA struggled to meet costs and continually tried to raise funds through sponsorship and fundraising. Frustrated at the luck of funds, young children had to leave the game as their families could no longer meet the increasing financial costs. Kelli Lambert[5] said that the children are “the real victims in this case.” Alan Watson was the president at the time BDNA began investigating significant discrepancies in the financial transactions of BDNA. He stated:
[1] Exhibit A.
[2] Exhibit C.
[3] Exhibit D.
[4] Exhibit B.
[5] Exhibit E
BDNA is a volunteer, not for profit association doing our bit to make the community a better place.
…
As a result of her sustained and significant theft of community money over a long period of time, thousands of families were subjected to significantly higher club and representative playing fees. And sadly, many children missed out on playing representative and club netball because their families could not afford the inflated fees being charged.
At one end of year netball celebration, the Association had no money to supply trophies for our award winners and had to reuse old trophies that had been in storage for several years and were looking tired and worn. The old trophies were rebadged and engraved with the award winners for our Association; embarrassingly one of the trophies still has a plaque from the previous year on it with another player's name on it. Some of the coaches went and bought their own trophies, including myself, as we were too embarrassed to present rebadged trophies to our players. It was a very awkward and dark moment for our Association.
Almost immediately after Ms Melnikas was removed from her paid position, the Association’s financial position changed. Our strong current financial position has allowed us to lower playing fees significantly, to encourage and allow children to play netball within our Association. As a not for profit association we are now able to put money back into our Association by absorbing court hire costs and constantly updating equipment and supporting local club teams.[6]
[6] Exhibit F.
45 As has been pointed out by your counsel, there are, however, some mitigating factors. You have pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea, been spared the time and cost of a trial. Witnesses have been spared the ordeal of giving evidence upon your trial. I take it into account in your favour that you intimated early your intention to plead guilty to these charges. I accept that the pleas of guilty indicate remorse for your behaviour.
46 I have been told something of your personal history and your circumstances. You were born on 13 April 1961 and are 54 years old. Your mother worked for Heinz until you were born and then stayed at home caring for the family. Your father had his own cabinet making business and worked long hours. You have two younger siblings, a sister who is now 50 years old and a brother aged 48.
47 You commenced your education at Macleod Primary School and then attended Macleod Technical School. You found school difficult, both academically and socially. You attended Dr McKenzie for a psychological assessment on 25 September 2015. In Dr McKenzie’s opinion it may be that you have been dyslexic but not diagnosed.
48 You were bullied at secondary school as a consequence of being “tall, ugly and dumb.” You felt ostracised.
49 You left school at the age of 15 at the end of year nine and enrolled at Stott’s Business College. You attended the college for a year, learning secretarial skills and bookkeeping. You graduated at the top of the year.
50 You immediately applied to join the police force but were not accepted because you did not pass the English exam. You then took a position with an accountancy firm in Carlton attending to reception work and completing clients’ tax returns. After approximately six years in that role, you were approached by one of the clients to work for Safcol in Brunswick. You took the position and reported that your boss taught you all aspects of running the business. After ten years you were transferred to Safcol in Footscray, but left after a year because you found the increased travel difficult. You then worked for a fur company for a year, leaving when your father asked you to work with him. For the next 12 years you worked in your father’s cabinet making business, performing administrative work, bookkeeping and reception.
51 In 1999 you started to work on setting up BDNA. After your father retired, you continued work for BDNA in the evenings and worked with a plumbing company during the day.
52 Approximately three months after your arrest and having to leave BDNA, you obtained a position as a receptionist with a podiatry clinic, primarily working the afternoon shift. You have been working there for over two years and stated that you enjoyed the work and got along with your employers and your co-workers. Your employers are aware of the charges against you and have informed you that your position is dependent on the court outcome and they will have to dismiss you if you have a criminal record. You are uncertain of what you will do if you lose that job.
53 In relation to your financial circumstances, your home address is valued at $600,000 and mortgaged for $500,000. You own a property in Phillip Island jointly with your husband and your parents, which is valued $450,000 and mortgaged for the sum of $400,000 It is currently rented out. Your husband Mark Melnikas works with the defence force in information technology and earns about $100,000 per year. You earn approximately $500 per fortnight.
Relationships
54 You reported that your first serious relationship was when you were 18 years old. You were together for two years, but you left that person after he “raped” you. You remained single for the next ten years before meeting your husband, Mark, when you were 30 years old.
55 Your first child was stillborn at full term in 1990. It was later discovered that you suffered from antiphospholipid syndrome (a form of lupus). Four weeks before the due date for the birth of your son Ryan, you had an emergency caesarean. Ryan was born with a missing right pulmonary valve and a hole in the heart. Ryan has had three heart operations but is now a healthy young man studying for a degree in Paramedicine and Nursing at Ballarat University.
56 Your daughter Ashleigh was born in 1995 and is healthy. Both your children have been diagnosed with dyslexia. You believe that both your father and brother are also dyslexic.
57 Your 25 year marriage has had its ‘ups and downs” but you remain committed to each other. Four years ago your husband had a heart attack and had triple bypass surgery.
Medical and Psychiatric History
58 Prior to being charged with these offences, you had not been diagnosed or treated for any mental health issues. You became depressed after being charged and experienced frequent suicidal ideation. Your doctor prescribed Valium and referred you to a psychologist for five sessions. You attended the psychologist who used hypnosis to help reduce the anxiety. You have not been prescribed antidepressants.
59 All of your family members are aware of these offences and have remained fully supportive.
60 You were introduced to netball by your parents when you were 12 years old. You loved the sport. Your mother, Mrs Bullas had been running the Macleod Netball club for over 44 years. Your father used to coach netball in the afternoons.
61 You played netball from the age of 12 up to the representative level and then began to coach netball.
62 At the time of your first involvement with the Macleod Netball Club, there was no stadium for netball teams to play. You and others who were very involved and passionate about netball decided that the netball community needed a netball stadium in the Heidelberg/Banyule area. In 1997/1998 a campaign was started to secure the construction of a netball stadium. That campaign was successful and resulted in the opening of the stadium known as the Banyule Nets Stadium in Somers Avenue Macleod. You and your immediate family considered yourselves to be at the forefront of the campaign. You were very proud of the creation of the stadium. You felt a sense of ownership of the stadium.
63 The stadium started operating in 2003. You were on the BDNA board as secretary and it was agreed that you would be paid for your services. You were employed for 25 hours per week on a casual basis but stated that your duties far exceeded these hours. You reported that the additional hours you worked at the stadium were taken later as time in lieu. You stated that initially the board comprised members of the Macleod Netball Club and remained that way for many years. However, as more parents from other clubs became involved, the composition of the board altered. Changes were proposed in relation to how the association was run which you opposed and found insulting, given that you had been able to build BDNA from just an idea to one of the top netball associations in the area.
64 In 2007 you formed your own company running night netball competitions for adults. The name was Banyule Direct Netball Competition. Although permission had been granted by both BDNA and the Banyule City Council for you to do so, in the following years you became increasingly aware of hostility directed against you. You said that you felt harassed and bullied. Although you became convinced that the board wanted you out of the organization, you refused to leave. You informed Netball Australia of how you were being treated in the workplace and they advised you to go to Fair Work Australia to make a formal complaint. You stated that Fair Work Australia initially told you that you had a case but they informed you that they could no longer assist you a month before you were arrested.
65 In a report dated 25 September 2015 Dr McKenzie stated:
Being able to establish the BDNA and successfully lobbying for building the stadium have played a major role regarding her sense of personal identity and achievement. After dedicating so many years to the development and expansion of the organization, she felt a strong sense of ownership and entitlement. The actions of the BDNA board to usurp her and the founding members of the association appear to have been reminiscent of the bullying she experienced at school and she became increasingly resentful and embittered. The resentment and sense of entitlement appear to have underpinned her crossing the line and committing the offences.[7]
[7] Exhibit 10.
66 In her report, Dr McKenzie also stated :
Ms Melnikas reports a number of difficulties consistent with a significant depressive experience. She admits openly to feelings of sadness, a loss of interest in normal activities, and a loss of pleasure in things that were previously enjoyed and experiencing suicidal ideation. However, there appear to be relatively few physiological signs of depression and the symptom picture appears to be relatively free of changes in appetite, weight, and sleep patterns.
67 Your counsel did not seek to rely on the principles in R v Verdins[8]. In DPP v O’Neill[9] the Court of Appeal recently stated that “a moderation of general deterrence will not ordinarily be required where the condition arises after the offence as a reaction to the discovery of the offender’s crime or the prospect of a lengthy term of imprisonment”.
[8] (2007) 16 VR 269 (Verdins).
[9] [2015] VSCA 325.
68 I take into account the nine references which were tendered on your behalf. Malcolm Gould[10], inaugural president of BDNA, spoke of your dedication and drive behind the creation of the stadium. Your mother Beverley Bullas[11] and your husband Mark Melnikas[12] also spoke of your devotion to your family and your hard work and dedication to the sport of netball throughout the years. Lorenzo Barbanera[13] parent and former board member of the BDNA spoke of your role as a coach of young netball players and your work for BDNA over the years. Janet Ryan[14], Sue-Ellen Fitzsimmons[15], and Maree Dinan[16] members of the association; John Williams[17], former president of Banyule Districts Netball Association; and Sean Ryan[18] spoke of your hard work for and dedication to the sport of netball. Your husband Mark Melnikas, your mother Ms Bullas, Mr Gold, Mr Barbanera, Mr Williams, and Ms Dinan were all in court to support you.
[10] Exhibit 1
[11] Exhibit 2.
[12] Exhibit 9.
[13] Exhibit 3.
[14] Exhibit 4.
[15] Exhibit 5.
[16] Exhibit 8.
[17] Exhibit 6.
[18] Exhibit 7.
69 You have no prior convictions. I sentence you as a person of previous good character. You have been in no further trouble since these matters. Dr McKenzie stated that your risk of reoffending is low. I take into account your family support. I am, on balance, satisfied that the chances of your rehabilitation are reasonably good.
70 However, as well as the matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this. I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your reoffending. I am called upon by the Sentencing Act 1991 to manifest the community's denunciation of your conduct and generally to impose a just punishment.
71 Your counsel conceded that your offending was serious and that even though the decision in Boulton & Ors v The Queen[19] had changed the sentencing landscape, the sentencing considerations identified in Bulfin v The Queen[20] remain relevant to the sentencing exercise.[21] In Bulfin, Charles JA referred to the fact that white collar offenders usually had no prior criminal history and that the prospects of rehabilitation of such offenders were generally very high. Charles JA observed that specific deterrence would often not feature largely in the sentencing consideration but that these features had a tendency to distract attention from the importance of general deterrence.[22] Charles JA concluded:
The element of general deterrence will usually carry particular significance in sentencing for crimes such as the present, both in relation to the total effective sentence and the non-parole period; together with a requirement for strong denunciation by the sentencing court.
[19] [2014] VSCA 342
[20] [1998] 4 VR 114.
[21]Dyason v The Queen [2015] VSCA 120 (Dyason).
[22] See reference to Dyason [33].
72 Your counsel conceded that general deterrence is a primary consideration. However, your counsel submitted that Boulton has recast the sentencing landscape and that the matter can be dealt with by means of a non-custodial sentence. He referred to the amount involved, the circumstances underlying the offending, the relative unsophisticated mode of offending, the guilty pleas indicated at the earliest opportunity in relation to these charges, your demonstrated remorse and excellent prospects for rehabilitation. Your counsel also submitted that you have been banned from netball in Victoria. Your daughter plays but you have been banned from attending her games and this remains a constant powerful and potent source of grief for you. Your counsel referred to the deleterious and negative impact of imprisonment referred to in Boulton.[23]
[23] [2014] VSCA 343, [108].
73 In the alternative your counsel urged me to consider the imposition of a combination sentence. Such a disposition would address the issue of deterrence, take into account your previous good character and your prospects of rehabilitation.
74 The prosecutor submitted that there is a need for an immediate custodial sentence but that that an immediate term of imprisonment combined with a Community Correction Order would be within range. The prosecution relied on Dyason. She referred to the gravity and the seriousness of the offending. She submitted that your offending was ongoing and repeated, involving many deliberate acts. It was a breach of trust and you stole a significant amount of money. The victims were the young people who were supposed to benefit from the support of this community organisation to play sport.
75 The prosecution did not dispute that this was not sophisticating offending but submitted that it was brazen offending because you had complete control of the books in this community organisation that was not audited.
76 These are without doubt a serious offences involving a breach of trust of a not for profit organisation seeking to promote sport in the northern suburbs. I have considered s.5(4C) of the Sentencing Act 1991. Having given the matter a great deal of thought and notwithstanding the matters advanced in mitigation, a term of actual imprisonment is required. In my judgment the imposition of a Community Correction Order in this case would not give sufficient effect to the principles of general deterrence, the community's denunciation of your conduct and the need to impose a just punishment.
77 Upon analysis of all the evidence and the submissions made by counsel, I propose to order that in respect of Charges 1, 2, 3 ,4 5 and 6 you serve an aggregate term of imprisonment for 18 months followed by a Community Correction Order for a period of 18 months.
78 As you know, I have sought and received a pre-sentence report in this matter. That report indicates that you are considered a suitable candidate for a Community Correction Order. I am only able to make such an order if you consent to my taking such a course. So that you are in a position to make an informed decision in the matter, I should tell you something about the course I propose.
79 First, the length of the order will be 18 months. Every Community Correction Order, including the one I propose in this case, contains certain core conditions. They are:-
1.You must not commit another offence punishable by imprisonment during the period of the order.
2.You must comply with any obligation or requirement prescribed by the regulations.
3.You must report to, or receive visits from, the Secretary during the period of the order.
4.You must report to the Greensborough Community Correction Centre within two working days after you are released from custody.
5.You must notify the Secretary of any change of address or employment within two clear working days after the change.
6.You must not leave Victoria except with the permission of the Secretary.
7.You must comply with any direction given by the Secretary that is necessary for the Secretary to give, to ensure that you comply with the order.
80 The conditions that apply in addition to the mandatory terms are:
1.You must perform 250 hours of unpaid work over a period of 18 months as directed by the Regional Manager.
2.You must be under the supervision of a Community Correction Officer for a period of 18 months.
3.You must undergo mental health assessment and treatment, including but not limited to, mental health, psychological, neuropsychological and psychiatric in a hospital or residential facility as directed by the Regional Manager.
4.You must undergo programs consistent with the purpose of treatment and rehabilitation, which may include but is not limited to, employment, educational, cultural and personal development programs as directed by the Regional Manager.
5.You must realize that if you breach the order you should expect to be brought back to court and dealt with for such breach. You should expect to be imprisoned, perhaps be fined and perhaps other sorts of orders would be made if that occurs.
81 Do you consent to the making of a Community Correction Order containing the terms I have outlined? Do you want to consult with your client, Mr Higham?
82 MR HIGHAM: May my instructor?
83 HER HONOUR: Yes, thank you.
84 OFFENDER: I consent, Your Honour.
85 HER HONOUR: Thank you. I propose to record a conviction on each of Charges 1, 2, 3, 4, 5 and 6, and sentence you to an aggregate term of imprisonment of 18 months. On those charges I will also impose a Community Correction Order that commences upon your release from custody, for a period of 18 months.
86 Yes, I have signed that order. Do you have the other orders you want me to make, Madam Prosecutor?
87 MS COOMBES: Your Honour, copies of the draft orders, both the forensic sample and compensation.
88 HER HONOUR: Yes, thank you. Pursuant to s.86 of the Sentencing Act 1991, I order you to pay the Banyule And District Netball Association Inc. compensation of $209,134.
89 I make an order pursuant to s.464ZF that you provide a sample of your saliva. I am required by law to say to you that those charged with taking that sample are authorised to use such force as may be necessary to effect the taking of the sample.
Section 6AAA statement
90 But for your plea of guilty I would have sentenced you to a term of imprisonment of 27 months, to be followed by a Community Correction Order to commence upon your release from custody for a period of 27 months. Are there any further matters?
91 MR HIGHAM: Your Honour, I think it's incumbent upon Your Honour to set a non-parole period if it's over 12 months. There have been several recent authorities indicating - - -
92 HER HONOUR: Is it over 12 months? I thought it was two years. Well, can you take me to the section?
93 MR HIGHAM: If I'm wrong - Your Honour, I don't have my statute with me. Your Honour, I know there is recent - - -
94 HER HONOUR: I know there is recent authority. I have had occasion to look at it, but I have not looked at it for a couple of months, so I will just have a look at it.
95 MR HIGHAM: Your Honour, the most recent case was in the last couple of weeks, and it was in the last couple of weeks, and Your Honour, the position is - my submission to the court is, the limit for the combination order, Your Honour is right, is two years. But if the sentence is more than 12 months, there requires to be a non-parole period. But Your Honour I'm sometimes wrong, and if I am, I make it very clear.
96 HER HONOUR: I do not know if you have got that authority with you.
97 MR HIGHAM: I can go back to chambers.
98 HER HONOUR: But if you have a look at s.11 of the Sentencing Act, it says that if the court sentences an offender to be imprisoned - you may take a seat - for the term of his or her natural life, or a term of two years or more, the court must as part of this sentence fix a period during which the offender is not eligible to be released on parole, unless it considered that the nature of the offence or the past history of the offender make the fixing of such a period inappropriate. So you have to fix a non-parole period if the offender is to be imprisoned to a term of two years or more.
99 MR HIGHAM: Yes, that's so, Your Honour.
100 HER HONOUR: And then, if a court sentences an offender to be imprisoned in respect of an offence for a term of less than two years, but not less than one year, the court may as part of the sentence fix a period during which the offender is not eligible to be released on parole.
101 Now, the case that I have had regard to, and I cannot remember the name, was a case where the judge had imposed a sentence of imprisonment of two years, and then the obligation was to impose a non-parole period. Had the judge sentenced the offender to a period of let us say 23 months, it would not have been necessary to fix a non-parole period.
102 MR HIGHAM: Because it would not have been obligatory.
103 HER HONOUR: Because under s.11.
104 MR HIGHAM: Yes. Your Honour, I have come ill-prepared. I'll sit down, Your Honour, for now. And I'll go back immediately to chambers.
105 HER HONOUR: Well, that might be too late. Because I do not believe that what you are submitting is correct.
106 MR HIGHAM: If it's wrong, it's wrong, Your Honour. Your Honour, as I read that, then Your Honour's saying that Your Honour has discretion, that Your Honour wants a sentence of actual 18 months to be served.
107 HER HONOUR: Yes, I do not have to. What is your position, Madam Prosecutor?
108 MS COOMBES: Your Honour, unfortunately I don't have my legislation with me either, so I can't double check, but my understanding was, it was over two years. I'll just check. My instructor's walked in, she may have some legislation.
109 HER HONOUR: Two years or more.
110 MR HIGHAM: Two years or more.
111 HER HONOUR: And there is that decision of Judge Quin. Yes.
112 MS COOMBES: It's s.11.
113 HER HONOUR: Yes, have a look at Boulton, which I did not bring with me, and I usually do.
114 MR HIGHAM: I think the case I'm thinking of, Your Honour, was Deng-Mabior, Your Honour. And it's me.
115 HER HONOUR: And that is Judge Quin? Yes, well that is two years.
116 MR HIGHAM: Your Honour is right.
117 HER HONOUR: And the Court of Appeal decision was more than two weeks ago, Mr Higham.
118 MR HIGHAM: When I'm wrong, Your Honour.
119 HER HONOUR: Yes, thank you.
120 MR HIGHAM: When I'm wrong, I admit it, Your Honour.
121 HER HONOUR: That is right. I just wanted to make sure that that was correct. Yes, thank you. Would you please take Ms Melnikas into custody. Yes, no further matters?
122 COUNSEL: No, Your Honour.
123 HER HONOUR: I will leave the Bench.
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