Director of Public Prosecutions v Molan

[2023] VCC 1668

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22-00561

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

MAURICE MOLAN

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	12 September 2023
CASE MAY BE CITED AS:	DPP v Molan
MEDIUM NEUTRAL CITATION:	[2023] VCC 1668

REASONS FOR SENTENCE

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Subject:	CRIMINAL LAW
Catchwords:	Misconduct in a public office – early plea of guilt – significant extra curial punishment – delay -  low risk of reoffending
Legislation Cited:	Sentencing Act 1991
Cases Cited:	-
Sentence:	$2,500 Fine with no conviction

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. G. Hayward	Office of Public Prosecution
For the Accused	Mr B. Johnston

HER HONOUR:

1Maurice Molan, you have pleaded guilty before me to one charge of misconduct in a public office.

2The facts underlying this offending are as follows.

3I annex the prosecution plea opening as an exhibit to the sentencing remarks, but in short compass you, in January 2016, were appointed an executive manager, business development workforce excellent at South West TAFE. 
In that position you were responsible for identifying new business opportunities on behalf of TAFE in the wake of fairly severe funding cuts to TAFE.  Those opportunities included agreements with third party registered training organisations and the day to day management of those agreements.

4You were introduced to a person called Rebecca Taylor who was the sole director of a company called Taytell Pty Ltd and eventually discussions were held between Ms Taylor and the Chief Executive Officer of South West TAFE about entering into a third-party agreement with Taytell, to provide training specifically for courses including Certificate IV Engineering. 

5The arrangement was that 80 per cent of the funding for the contract would go to Taytell, and South West TAFE would retain 20 per cent of that funding.  This was one of the innovations introduced by TAFE organisations at the time to make up for the funding cuts in government spending on TAFEs.

6Taytell was obliged under the agreement to ensure the training provided to students was provided by people who held qualifications in the areas in which they were providing training.  South West TAFE was to oversee the training and assessment and provide quality assurance services and accredit students who successfully completed the courses with the appropriate qualification.

7Over all this, South West TAFE was required to comply with Victorian Education and Training Quality Framework and Standards which required the TAFE ensure that people who were doing the training held, at a minimum, the qualifications in the areas that they were teaching.  That would mean Ms Taylor would have been required to hold a qualification in Certificate IV Engineering, and as a manager of South West TAFE, you were responsible for procuring and overseeing the agreement.  It is the prosecution's assertion that you were aware of these obligations or ought to have been aware.

8The contract invoice from Ms Taylor involved an amount of $1,401,734.40 which was paid on 15 November 2013, and a further amount of $422,400 which was paid between 10 April and 29 May 2014.

9It is the prosecution case that you wilfully misconducted yourself as a public official by recording on a South West TAFE database that Taylor was qualified in Certificate IV Engineering despite knowing there was insufficient information to that effect.

10Now I hasten to add it is not alleged by the prosecution that you were engaged in the fraudulent activity which is now alleged against Ms Taylor and for which she remains to be dealt with in the courts.

11The scenario put by the prosecution is that in about August 2013 you engaged Jason Sealey, a former South West TAFE engineering teacher, to conduct a recognised prior learning assessment of Ms Taylor's competency in Certificate IV in Engineering.  That is you asked him to assess whether she could be deemed competent to qualify to train in Certificate IV Engineering.

12On 4 September 2013 Mr Sealey emailed an RPL assessment report to you in which he determined that on the basis of the evidence provided by Taylor he could not be satisfied she could be deemed competent in Certificate IV Engineering.  That evidence included documents which Ms Taylor had supplied.

13Essentially Mr Sealey stated,

'There is no hard factual evidence that I can use to deem Rebecca Taylor competent against any of the units'.

14On 13 September 2013, Taylor emailed an invoice for $1,391,940 to you on behalf of her company for services delivered up to that date pursuant to the Taytell agreement.

15Despite Mr Sealey's assessment that Taylor could not be deemed competent in Certificate IV Engineering, on 18 October 2013, through another person, you entered a grade code of 'pass competent' for each unit of Certificate IV Engineering for which Taylor was enrolled in the student management system at South West TAFE.

16The prosecution position is that this was, as was stated by Mr Hayward, a lapse of judgment on your part.  Ms Taylor eventually received approximately $1.4m from South West TAFE in November 2013 and about $422,000 in early 2014.

17You were interviewed by IBAC investigators on 10 May 2016 where apparently you were engaged in a seven hour cooperative record of interview.  Several days later you, in fact, appeared before IBAC and I was informed by your counsel that you were asked to conduct what is called a pretext call with Ms Taylor.  That is you undertook a telephone call with a view to discussing the offending with her in the hope of obtaining some admissions which would be recorded.  That is, your behaviour overall, it must be said, was highly cooperative.

18In your record of interview you talked about the TAFE sector suffering because of State budgeting cuts and that TAFE was required to become more entrepreneurial as a result.  Certainly, this contract with Ms Taylor resulted in significant funding to South West TAFE.  That appears to have been the motivation behind your actions.  Not that it is put that it was done in the absolute knowledge by you that she was qualified but that you did not follow up on the report you sought from Mr Sealey but acted on Ms Taylor's own representations.

19You said in your record of interview three years later that at the time that you were being interviewed it did look as if there was something dodgy,  that you could understand why people saw that, but that in your mind there was nothing dodgy about it at all.

20You accepted you did not have the ability to look at the evidence itself to see if it demonstrated that Taylor was competent in Certificate IV Engineering and by your plea of guilty the prosecution understands that you accept you did not,
in fact, have sufficient information as at 18 October 2013 to record that Taylor was qualified in Certificate IV Engineering.

21The maximum penalty for this offending is 10 years' imprisonment. 

22I now turn to your personal circumstances.

23You are now 64 years of age.  You have no prior convictions and you have not been convicted of or engaged in any criminal offending since.  In other words, this is the only occasion in which you have fallen foul of the law.

24It is quite clear that you have led an exemplary life particularly in the area of community participation and assistance to the community.  You live in the Koroit area.  You have lived there virtually all your life.  You come from a highly respectable family.  You have a number of brothers and sisters all involved in careers of some significance.

25You, yourself, completed Year 12.  You went on to work as a groundsperson.  Ultimately you took on tertiary qualifications and at the time of this offending had been working at the South West TAFE for a period of 25 years.

26It is quite clear that it was your belief you were acting in the best interests of South West TAFE at the time you engaged in this behaviour, mistaken though you might have been about that.

27As a result of this offending, you resigned from that position.  You then went on to work in various roles ultimately as a handyman but were injured when falling from a ladder last year. 

28You are married.  You have two children from your first marriage.  In your second marriage your wife who is a nurse has four children.  You are clearly a devoted family man and were supported in court by a wide array of relatives.

29I also received something in the region of, I think your counsel said,
23 character references from a wide range of people attesting to your contribution to the community.  Those referees include former police officers, TAFE colleges, committee members, a family counsellor, a physiotherapist and of course, members of your own family.

30Over the years you have served in various public roles in your local community.  As your counsel described it you have been involved in local sporting organisations, tennis and netball.  You founded the Koroit Irish Festival.  You have held a fairly wide range of community positions all involving voluntary undertakings by you and all involving contribution to your community.  It is also noted that you have given 100 blood donations.

31Just leading up to you being charged with this offending you were proposing to stand in the local council election essentially to represent smaller communities having been asked to do this, but were forced to withdraw at the last moment once the charges were laid.

32It was submitted by your counsel that you had suffered significant extra curial punishment as a result of this offending.  He submitted that this included your loss of employment at an organisation to which you were devoted but also extremely adverse publicity.  The headlines of several newspapers were quoted to me in which you were named and linked to actual fraudulent activity carried out allegedly by Ms Taylor and it is quite clear that it is not alleged you were behaving in any such way.

33There has also been an inordinate delay in this matter which is conceded by the prosecution.  You were interviewed in 2016.  Charges were not laid until 2020 and the onset of the pandemic meant that the resolution of these proceedings took several more years.

34A contested committal was conducted but that was in the face of a large number of charges and held almost a year after the first plea offer was made by you in 2021.  The charge to which the plea offer was made carried a maximum penalty of 10 years' imprisonment.  The charge which the prosecution ultimately offered you and which was accepted in March of this year also carries a maximum of 10 years' imprisonment.

35It was submitted by your counsel that in the circumstances I should regard your plea of guilty as an early one and I accept that submission.  Despite the fact that a contested committal was held it was a situation, as I have said, where you faced numerous other charges and the committal itself was purposeful in determining, particularly in the eyes of the Crown, the appropriate charge to be brought against you.

36I accept that you have, as I have said, suffered extra curial punishment.  You have gone on and this is accepted by the prosecution, to lead an exemplary pro-community, pro-family, prosocial life. 

37I received a psychological report from psychologist, Jeffrey Cummins, in which he noted that at the time of this offending you yourself were suffering from anxiety and depression around the cuts to the TAFE organisations at that time and the offending was committed in that context.  He assessed you as a very low risk of reoffending and I accept that assessment.

38I accept that ordinarily you are a person who would never have expected to find himself before a criminal court and that otherwise your life has been one of community service and as I have said, entirely prosocial behaviour.

39As a result of the protracted nature of these legal proceedings moneys you had set aside for other purposes have had to be used by you for the legal costs of those proceedings and I accept that your financial position is now a modest one.  Your counsel informs me you earn in the region of $50,000 a year and that in effect it is your wife, who works as a nurse, who is the breadwinner of the family.  This is a relevant matter for me to take into account.

40It was conceded by the prosecution that I should deal with you by way of a fine but a fine without conviction.  That is that no conviction would be recorded against your name.  I have accepted that as an appropriate measure to take in a case of this kind.

41I should add that responding to this sort of charge with this sort of disposition is extremely rare.  People who are charged with this offence, generally speaking, run the risk of a term of imprisonment because general deterrence is such an important principle in cases of this kind.

42Persons who take up public office need to be aware that any breach of trust will result in a very stern response from the courts because of the responsibility surrounding public office generally.  It is accepted that this breach by you falls at the lower end of the scale.

43I also accept, as does the prosecution and I know I am repeating myself, you have had to endure years of anxiety due to delay.  In the face of that you have not gone on to reoffend in any way.

44You have suffered, probably humiliating and distressing publicity linking you to offending which ultimately you are not accused of nor am I dealing with you in any way for financial deception.  At its very highest the Crown has described your behaviour as a lapse of judgment.

45In all of the circumstances, as I have said, I accept that a fine without conviction is an appropriate measure to take in this case.  In so doing I must take into account your financial circumstances which I have outlined.

46In all of the circumstances, taking into account the very strong mitigatory features of this case which are conceded by the prosecution, I am going to fine you $2,500.  This is without conviction and I will give you six months to pay.

47Pursuant to s6AAA I declare that had you not pleaded guilty I would have fined you with conviction an amount of $7,000.  Thank you.

48MR HAYWARD:  May it please the court.

49MR JOHNSTON:  May it please the court.

50HER HONOUR:  Does that cover everything?

51MR HAYWARD:  Yes, Your Honour.

52MR JOHNSTON:  Yes, Your Honour.

53HER HONOUR:  Thank you very much.  I thank counsel for their assistance.  It's all over now, Mr Molan.  Thank you very much and yes, I hope life goes a bit better for you now than it has over the last few years, sir.  Thank you very much.  We will stand down until 2.15.  Thank you very much.

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