Director of Public Prosecutions v Milton

[2019] VCC 2019

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-01036

DIRECTOR OF PUBLIC PROSECUTIONS

v

JUDIT REPKENYI (JUDY MILTON)

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JUDGE:	HIS HONOUR JUDGE DOYLE
WHERE HELD:	Melbourne
DATE OF HEARING:	28 November 2019
DATE OF SENTENCE:	6 December 2019
CASE MAY BE CITED AS:	DPP v Milton
MEDIUM NEUTRAL CITATION:	[2019] VCC 2019

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW
Catchwords:  Sentence, theft, plea of guilty

Legislation Cited:  Sentencing Amendment Act (Abolition of Suspended Sentences and Other Matters) Act 2013

Cases Cited: R v Verdins [2007] VSCA 102, DPP v Kerry Caulfield, 2019 VSCA 131

Sentence:   Total effective sentence of 22 months

Section 6AAA declaration: 28 months with a non-parole period of 18 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Sharp	Ms T. King
For the Accused	Mr C. Terry	Ms J. Kennedy

HIS HONOUR:

1Judit Repkenyi, you have pleaded guilty to one charge of theft, framed as a course of conduct charge, for which the maximum penalty is 10 years' imprisonment.

2You have no prior convictions.

Facts

3The facts of this matter are set out in the prosecution opening tendered as Exhibit 1 on the plea. I incorporate this document into my reasons for sentence.

4In 2009 Angele Grondin and her husband, Robert, employed you as a bookkeeper for Robert Grondin’s plumbing business. You were trading under the business name “After Dark Accounting”. Robert Grondin was approximately 59 years of age at that time. He is now 70.  As I understand it, Angele Grondin is slightly younger than him.

5In July 2008 the Grondins opened a café in Mount Eliza, named Café Gourmand. In 2009 they hired you to do the bookkeeping for this new business. For this purpose you went to their home in Mount Waverley once a fortnight for three to four hours. Included in your duties was the payment of bills associated with the running of the business using on-line banking. Angele Grondin would log on and then you were given access to the computer to pay the bills. You were not given the password to the bank account but somehow you obtained access to the login details and the password. You were authorised to pay business accounts and also to make payments to your National Australia Bank account as remuneration for your bookkeeping services. As I understand it, your use of on-line banking to pay bills was to take place either at the Grondins’ home or at the business. You had no authorisation to use the account from a remote location but you did have authorisation to enter the details of invoices and payments using the MYOB software on your home computer. You had no permission to access the bank account for the business without the Grondins' permission.

6In 2010 Angele Grondin was diagnosed with breast cancer and Robert Grondin closed down his plumbing business and he began to assist at the café.
Ms Grondin remained largely responsible for the running of the business.

7At the end of 2014 the Grondins closed down the business for a two-week period over the Christmas holidays. On 22 December 2014 you attended to pay invoices using online banking. Ms Grondin told you that she was returning to work on 20 January 2015.

8Over the holiday period when the café was closed Ms Grondin asked her husband, Robert, to obtain printed statements from the bank. She looked at the statements for November and December 2014 and noticed a number of suspicious payments, including some payments that had been made in the middle of the night.

9She asked her daughter-in-law, Evette Grondin, an accountant, to examine the business accounts. She noted a number of payments that had been made after the business had been closed for the Christmas holidays. Evette Grondin saw that a number of the transactions involved deposits into your account. On further examination of the accounts she noticed that the suspicious payments went back more than 12 months. When Angele Grondin realised that you had been making payments to yourself she changed the login details, the password and the account numbers to the account. She did this on or about
15 January 2015.

10On 20 January 2015 you sent Angele Grondin a text message, telling her that you were unable to attend that night to discharge your bookkeeping duties.
Ms Grondin sent you a text in reply asking you to come later in the week. A few days later she sent you another text telling you that the computer was not working. You never returned to work and you never contacted the Grondins again. You never answered any of Ms Grondin’s subsequent phone calls. No doubt you had worked out by then that your offending had been detected.

11On 16 February 2015 Ms Grondin sent you a text requesting that you send all relevant accounting documents and data back to her so that her daughter-in-law could do the bookkeeping. She said in the message she was waiting for an answer from you. You never replied.

12The Grondins reported the matter to the police in January 2015 but no investigative action was taken by police until 8 March 2016 when Senior Constable Adam Pagram commenced an investigation into your offending.

13The business records obtained by the police were examined by a forensic accountant, Kirsten Hills, who found that, between 12 March 2009 and
15 January 2015, the transfers that you made from the Café Gourmand account were almost exclusively transferred into your National Australia Bank account, distributed under 10 different categories, which are set out in a table at paragraph 21 of the prosecution opening.

14Using the login details for the Grondins’ internet banking, over a period of five years you transferred approximately $250,000 of their funds into your own account for your own use and benefit. You had no authorisation to use the Grondins’ on-line banking other than when using their computer at their home or at their business and you were not authorised to transfer these amounts into your account.

15It has not been possible to establish the exact amount you obtained dishonestly in this case, due to the way in which the payments were classified, the absence of invoices for your bookkeeping services each month, and consequently, the difficulty in reconciling amounts that you were entitled to receive for your bookkeeping work against hundreds of payments transferred into your account from the Café Gourmand account. The unauthorised transfers are set out in Annexure A to the prosecution opening. The total number of transactions is 646.  Mostly the transactions were for relatively small amounts, which meant your conduct remained undetected for many years, although, in the last few years of your offending, it seems Robert  Grondin, at least, had some inkling that they should have been doing better financially from the café.

16You were interviewed by police on 29 March 2016. You exercised your legal right not to answer questions.

Gravity of the Offending

17The offence of theft covers a wide range of conduct. In your case the charge has been framed as a course of conduct charge, which reflects the large number of individual transactions over five years that constitute your offending. Your offending involved an appalling breach of trust. The Grondins were older people doing their best to run a small café as they approach retirement age. You were entrusted to be their bookkeeper, and to that end you were allowed into their house and their business and you were given access to their computer in order to conduct their banking. You took advantage of this by obtaining the login details and the password to their internet banking. When you did this you must have intended to steal from them. You then used this knowledge over a period of five years to systematically steal approximately $250,000 from them. The payments that you made to yourself were disguised in the accounting records as legitimate business expenses. You have not repaid any of the money you stole and it is unlikely you will ever have the capacity to do so. Your dishonest conduct was very serious offending. It involved a very large number of transactions over a long period of time and you stole what was a large amount of money, on any measure, but particularly when compared to what the café was generating. You do not dispute that you were aware that the café was not generating large profits. The impact of your crimes on the victims has been significant.

Victim Impact

18I have received victim impact statements in this matter from Angele Grondin, tendered as Exhibit 2, and Robert Grondin, tendered as Exhibit 3. To some extent both blame the breakdown of their relationship on your conduct. The prosecution and the defence agreed that this is not a matter that I should have regard to, given the evidence discloses that there were pre-existing problems in their relationship.  I have not taken this matter into account.

19Both victims speak about the financial difficulties your conduct caused them. Robert Grondin, who is now 70, describes that he still needs to work a six day week due to his financial circumstances. He refers to lost investment opportunities as a result of your conduct. His work causes him to be too tired to see his friends or his grandchildren.

20Angele Grondin says that she completely trusted you and had faith in you. She says she had no knowledge of internet banking. She describes sleepless nights and anxiety. She says she does not have financial security anymore and that at the age of 67 your conduct has prolonged her work life. She feels there is no hope of retirement or going on holiday or leaving money to her children. She also speaks of lost opportunities for investment. She says in her victim impact statement that she and her husband worked hard for five years and they will not be reimbursed.

21It is not surprising that the impact of your crimes on the victims is substantial and enduring.

Guilty Plea

22You were charged on 17 June 2016 and thereafter the matter was booked in for a contested committal proceeding, which proceeded on 25 May 2017, during which both victims were cross-examined. The case was then booked in for a trial in this court which was listed to commence on 23 April 2018. This listing was adjourned at the request of the prosecution in order to obtain some additional evidentiary material. The trial was next listed in March 2019. I am told the matter resolved after two days in the reserve list. You pleaded guilty to the charge that was on the trial indictment but, as I understand it, the period of the offences was reduced to some degree. Your plea of guilty can only be regarded as a very late plea. It is not put on your behalf that there is any evidence of remorse or that your plea is indicative of any significant remorse.

23Of course, you are entitled to the utilitarian benefit of your plea. You have saved the community the time and cost of what may have been a complicated trial. You have also spared the elderly victims the ordeal of giving evidence at a trial, although, of course, they were cross-examined at a committal proceeding.

Personal Circumstances

24I turn to your personal circumstances.  Ms Milton, you are now aged 64. You were aged between 54 and 59 when you committed these offences. You were born in Budapest, Hungary in 1955. Your father was a teacher and later an engineer and your mother was a housewife, although she also worked as a seamstress on a casual basis. You started work at the age of 18 after finishing school at 17. When you were 19 you studied at night school and obtained qualifications in business and accounting. This took three years.

25You lived at home with your parents until you were aged 29. You worked for different employers using the skills you had obtained from your study. You were married at the age of 29 and lived in a rural area outside Budapest with your husband for a period of approximately five years. Your only child, Rosanna, was born in 1984. You and your husband left Hungary with your daughter for a better life and came to Australia on a humanitarian visa. You and your husband and your daughter arrived in Australia in 1987. You settled in Oakleigh and you attended regular English classes. Your husband worked in a factory and you stayed at home, looking after your daughter. Some two years after arriving the family moved to Brisbane, eventually returning to Melbourne to buy a house in Rowville.

26In 2000 your husband started a relationship with another woman and left you and your daughter. I am told you were left alone with a large mortgage and the sole care of your daughter. You had few family and friends in Melbourne and you had not worked for some time.

27You obtained work as a bookkeeper and registered with a number of employment agencies as a cleaner, bookkeeper or process worker. I am told that after you had turned 50, and in the aftermath of the global financial crisis, work dried up and you were unable to keep up with your mortgage repayments. Your circumstances did not improve and eventually in 2009 you were forced to sell the family home. You were left with $40,000 in savings. You moved into rental accommodation with your daughter and I am told you quickly spent the rest of your savings. It was after this that the offending commenced.

28Your present situation is that you have been staying with a friend at a rental house in Pakenham. You have not sought your own accommodation because of the risk that you will have to serve a period of imprisonment. You have not worked since you were arrested for this offending. You are currently receiving a Social Security benefit.

29Although your daughter did not attend the plea hearing in this matter, I am told by your counsel Mr Terry, you remain very close to her. She is now in her 30s, works as an artist and lives in Warragul. I am told you did not want her to attend the plea because you want to keep her removed from these proceedings as you feel this would exacerbate her anxiety.

Psychological Report

30I have received a psychological report from Dr Aaron Cunningham, dated
28 October 2019, which was tendered as Exhibit AP1 on the plea hearing.  It is not suggested that you suffered from any psychological or psychiatric disturbance that contributed to this offending. However, Dr Cunningham describes you as suffering from a major depressive disorder and a generalised anxiety disorder. Mr Terry has argued that some weight should be given to Principles 5 and 6 of Verdins, having regard to the psychological conditions detailed in Mr Cunningham’s report. He submitted that it is not difficult to see how someone in your position would find imprisonment more stressful.
Dr Cunningham opines that imprisonment will be more onerous for you relative to a person without your psychological problems. The prosecution made no submission to the contrary in relation to this matter. I propose to give some weight to Principles 5 and 6 of Verdins having regard to your current issues as set out in Dr Cunningham’s report.

Delay

31Turning to delay, Mr Terry submitted that delay was a mitigating factor. This submission requires some analysis. There is no doubt that the period between January 2015, when the Grondins first reported this matter to police, and
March 2016, at which time the matter was assigned to Senior Constable Pagram, constitutes delay for which there is no satisfactory explanation and I regard the period from January 2015 until June 2016, when you were charged as delay over which you have no control.

32Thereafter, you contested this matter, as you were entitled to do, and the case progressed through the courts within an expected timeframe until it was listed for trial in April 2018. At that time the prosecution applied to adjourn the trial and the matter was relisted in March 2019 for trial.  It was only then that negotiations took place and the matter resolved.

33Whilst you could have entered into negotiations in 2018, and perhaps resolved the matter at that time, I have also had regard to the time between the adjournment of the trial in 2018, and when it was next relisted in 2019, as delay not to be attributed to you. These two periods combined add up to more than two years and have contributed to the delay between detection and sentencing, growing to almost five years. In that time you have not reoffended, which demonstrates your positive prospects of rehabilitation.  Just as importantly, your life has been on hold in anticipation of the outcome of this matter. This is exemplified by your recent living arrangements, where, because of the uncertainty surrounding the outcome of this case, you have chosen not to rent and you have had to rely on friends to provide you with accommodation.  You told Dr Cunningham that you have lost 20 kilograms over the past two years due to stress and worry.

Motive for Offending

34I turn to the motive for your offending. Your counsel, Mr Terry, submitted that I should find that your offending was motivated by what he submitted were your dire financial circumstances at the time. I accept that you were living on a very modest income with your daughter in rental accommodation but I do not have any evidence from which I am able to make a finding as to the exact nature of your financial circumstances. I accept that the money you stole, which averages out to $50,000 a year, was applied to general living expenses.  Mostly the transactions were relatively small amounts, which seems consistent with using the money as additional living income. There is also no evidence of extravagant spending or any significant enrichment in your financial circumstances.

Prospects of Rehabilitation

35Mr Terry submitted that you have good prospects of rehabilitation. You have no prior convictions and you have not been in any further trouble since your offending was reported to the police almost five years ago. You have no underlying issues with gambling or mental health likely to lead to re-offending. The prosecution took no issue with this submission. I find that you are unlikely to re-offend and that your prospects of rehabilitation are good. However, it is not unusual in cases such as this for an offender to have no prior convictions and good prospects for rehabilitation, and whilst both of those matters are important factors in your favour there are, of course, other considerations I must emphasise  in a case such yours.

Current Sentencing Practices

36Mr Terry took me to a number of comparative cases from this court where Community Correction Orders had been imposed. I have had regard to those matters. None are quite the same and none feature the same constellation of aggravating factors that are present in your case. In most of those cases at least some restitution had been made. In many of the cases referred to the amount stolen was considerably less.

37During the course of the plea I discussed with both counsel the Crown appeal of DPP v Kerry Caulfield, 2019 VSCA 131, where the respondent, a bookkeeper, had stolen in the order of $460,000 from her employer by transferring amounts of money over three years to her own bank account.  A nine months' sentence combined with a Community Correction Order was held to be a manifestly inadequate, having regard to the principles of sentencing for white collar offenders for theft of substantial amounts in circumstances involving a breach of trust. The respondent in that case was sentenced to two and a half years with a minimum of 18 months, which the Court of Appeal described as the minimum sentence that could reasonably be imposed. Of course, the amount stolen in that case was considerably higher, an important matter, and the breach of trust more egregious but the respondent in that case had made full admissions, was remorseful, cooperative and pleaded guilty at an early opportunity, none of which are mitigating features in your case.

38Of course, no two cases are the same and whilst I must have regard to current sentencing practices, and I do so, they are not a controlling factor in the exercise of the sentencing discretion.

Sentencing Principles

39As well as your rehabilitation, to which I have referred, I must also take into account the need for general deterrence. This is an important sentencing objective in a case involving theft of a substantial amount over a long period in circumstances of a breach of trust. My sentence must seek to deter others from committing similar offences. Because of your previous good character and your prospects for rehabilitation, the need for my sentence to deter you from
re-offending is less important but still has some role to play.

40Denunciation and just punishment are also relevant sentencing principles in your case.

Submissions

41Your counsel, Mr Terry, submitted that a wholly suspended sentence was available and that it was an appropriate disposition in your case. In the alternative, he submitted that a community correction order was also a disposition within the range of available sentences for this conduct. In essence, he submitted that having regard to current sentencing practices for similar conduct, to your plea of guilty, to delay and to your excellent prospects of rehabilitation, considerations of general deterrence and denunciation could be adequately reflected in a sentence that did not involve immediate imprisonment.

42The prosecution submitted that a wholly suspended sentence was within the range of available sentences and submitted that to impose a community correction order alone would not be an appellable error. The prosecution submitted that a combined sentence of imprisonment and a Community Correction Order was within the range of available sentences.

43Both counsel submitted to me that because of when your offences took place I have the power to impose a wholly or partially suspended sentence.
Sub-section 6(3) and (4) of the Sentencing Amendment Act (Abolition of Suspended Sentences and Other Matters) Act 2013, allows me to impose a wholly or partially suspended sentence because the start date of the between dates charge of theft in this case is prior to 1 September 2013, the date on which suspended sentences were abolished.

Conclusion

44Balancing as best I can the aggravating features of your offending against the mitigating features in your favour, I have formed the view that the seriousness of your offending is such that to impose a wholly suspended sentence or a community corrections order alone would not adequately address the sentencing objectives of general deterrence, and also, denunciation and just punishment. In my view, a proper application of sentencing principles in your case requires a period of immediate imprisonment.

Sentence

45Ms Repkenyi, would you please stand up. On the charge of theft you are convicted and sentenced to a period of imprisonment of 22 months. I direct that 13 months of the sentence be suspended for a period of two years.  I have decided that there is no need in your case for supervised release after the period in custody you are required to serve, and so I have used the power to impose a partially suspended sentence that is available in your case.

46That means, Ms Repkenyi, you will be required to serve a period of imprisonment of nine months.  The remaining 13 months of the sentence is suspended for two years from today.  If in the next two years you are found guilty of an offence punishable by imprisonment you will be in breach of the suspended sentence that I have imposed and you would be brought back before me, and if you are not able to demonstrate exceptional circumstances you could expect that the remaining 13 months would be restored and you would have to serve that time in prison.

Section 6AAA

47Pursuant to s.6AAA of the Sentencing Act 1991 (Vic), had you pleaded not guilty I would have sentenced you to a total effective sentence of 28 months with a non-parole period of 18 months.

48Any other matters?  Mr Sharp?

49MR SHARP:  No, Your Honour.

50HIS HONOUR:  Mr Terry?

51MR TERRY:  No, Your Honour.

52HIS HONOUR:  All right.  Could you remove Ms Repkenyi, please.

53MR TERRY:  Your Honour, could I very briefly approach?

54HIS HONOUR:  Yes, of course.  Nothing further?

55COUNSEL:  No.

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