Director of Public Prosecutions v Mulcahy

[2018] VCC 1616

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

AT BENDIGO
CRIMINAL JURISDICTION

CR 18-01004

DIRECTOR OF PUBLIC PROSECUTIONS

v

MANDY-JANE MULCAHY

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JUDGE:	HER HONOUR JUDGE HANNAN
WHERE HELD:	Bendigo
DATE OF HEARING:	4 October 2018
DATE OF SENTENCE:	4 October 2018
CASE MAY BE CITED AS:	DPP v Mulcahy
MEDIUM NEUTRAL CITATION:	[2018] VCC 1616

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Hassan	Office of Public Prosecutions
For the Offender	Mr J. Gullaci	Cosgriff Lawyers

HER HONOUR:

1Mandy-Jane Mulcahy, you have pleaded guilty to three charges of obtaining a financial advantage by deception.  The maximum penalty for each offence is ten years' imprisonment.

2The facts which found your offending are set out in the prosecution opening, dated 7 August 2018.

3You were, at the relevant time, aged between 50 and 54 years and residing in Ky Valley with your family.  Your brother and family are directors of a family trust company.

4In July of 2010 your brother separated from his wife, who had been attending to the accounts until separation.  Towards the end of 2010 it seems your father requested that you assist with the accounts, and you agreed.  In addition you were assisting your brother with paperwork relevant to his separation and ultimate property settlement.

5I accept that you initially thought that this was a short arrangement and it seems that there was, at this time, no discussion as regards remuneration.

6On 1 January 2013, your father resigned as the director of the company and you became a director and secretary.  At some time there was discussion, apparently initiated by the accountants, about you being paid, but this did not end in any arrangement or agreement being made in that regard.

7The company was, in broad terms, engaged in dairy enterprises and held a number of bank accounts.  You commenced operating the accounts with full access to them.  You were responsible, amongst other duties, for paying accounts related to the dairy enterprise.  I accept that you were engaged in numerous activities relevant to what might broadly be described as the paperwork side of the business, as detailed by your counsel during his submissions.

8In December of 2013 your father gave you a motor vehicle.  Your daughter's car had apparently been written off in an accident and the vehicle was provided for her use.  There may well have been an element of gratitude for your assistance with the company, but it does not seem that there was any agreement that this was, in effect, payment in that regard.

9In July of 2014 your brother became aware that a number of creditors accounts had not been paid.  In addition he noted that the balances in the bank accounts to which I have already referred were less than he would have expected.  He contacted the bank and asked for a trace on the cheques, which revealed that between September 2014 and October of 2014 you had written a number of non-business cheque payments.  As a result of this discovery further enquiries were made.

10In March of 2015 your brother confronted you about writing cheques to your personal benefit.  You denied engaging in the conduct.  You were subsequently removed as the director and secretary of the company.  Thereafter a search of all the business accounts back to 2011 was undertaken and it was discovered that you had taken money from three accounts; both by cheque and EFTPOS transactions.

11It is clear that you paid for a variety of items, including house renovations, leisure activities and other things personal to you or to your family's benefit.  You, of course, had no authority to conduct such transactions.

12The total amount obtained dishonestly was $165,209.97.

13In late 2015 you repaid $75,000 after threatened civil proceedings were resolved.

14I have received victim impact statements, firstly, from your brother.  He describes the consequences of your offending as "devastating".  He says he cannot come to terms with the fact that it was his sister, who he trusted and spoke to daily, who was capable of such betrayal.  He describes the damage you have caused in the family as irreparable and something the family will have to live with for the rest of their lives.

15I also received a victim impact statement from your brother's partner.  She describes the stress this has placed on family life and the consequences for her partner.  She says the emotional and social impacts will never be over and that family life has been severed.

16I note that considerable time and effort were needed to identify and deal with the sequelae of your offending. 

17Any offending of this type is serious.  You grossly breached the trust your father and brother were entitled to have in you.  Your offending was ongoing, over a period of years.  A substantial amount of money was dishonestly obtained and you are to be sentenced on that basis.

18You have no prior convictions or appearances and you fall to be sentenced on the basis that you are, apart from this matter, a woman of good character.

19By way of background, you were born in Tongala and raised by your parents on a dairy farm.  Your mother tragically committed suicide when you were 11.  At that time your brothers were aged six and seven.  Prior to this you were aware that your mother had spent periods of time in Melbourne.  You now understand she was receiving psychiatric care, as she suffered from manic depression.

20After your mother's death you and your siblings were placed in the care of relatives and subsequently sent to boarding school in Melbourne for Year 7 to 11.  During school holidays you would stay with your grandparents and other relatives, including some of your aunts, who attended court upon your plea in support of you.

21After leaving school you initially worked at a dental clinic in Kyabram for ten years.  At that stage you were still helping out on the farm.  In later years your brothers returned to live on the farm.  One brother continues to reside there and the other lives in Benalla.  He apparently has an acquired brain injury resulting from an accident.

22You married at 23 and moved to your husband's farm property in Ky Valley.  You had two daughters, born in 1987 and 1988.  The family were running a milking herd and you were often called upon to help in ‘hands-on’ situations.  Tragically, in 1990, one of the children fell into a borehole while you were in the milking shed.  Despite frantic efforts to save her she drowned.  At that time you were pregnant with your third daughter.  Subsequent to that you tragically miscarried a son of 18 weeks before having a fourth daughter in 1992, a fifth in 1993 and a sixth in 1996.

23In more recent times you work on the family farm assisting with staff recruitment and management.  You have completed a Certificate in Aged Care and you assist a young man with down syndrome now three full days a week.

24As regards your physical health; you have Graves' disease, you suffer from heart palpitations and high blood pressure, and you are prescribed medication for those conditions.  In addition you suffer from arthritis.

25I received a report from Ms Gina Cidoni, who saw you for the purposes of assessment and report on 21 May of this year.  Ms Cidoni says you are experiencing severe depression with associated anxiety and agitation.  She says you have a lack of hope for the future pervading your life.

26Ms Cidoni says that testing revealed chronic post-traumatic stress symptoms.  She says your profile reveals an internal struggle that you do not reveal to others.  Ms Cidoni notes the considerable trauma you have suffered in your life; firstly in relation to your mother, then your child, then by way of miscarriage.  She notes that you have no history of grief or other counselling and that your emotional state is what she describes as "very reduced".

27Ms Cidoni says personality testing indicated chronic PTSD with a co-morbid persistent depressive disorder.  She says, as regards your offending, "there was a loss of self-control".  She says dissociative state results in diminished self-control and also negativism.  She says in your case the loss of control commenced with feelings of entitlement for work completed by you, and says that in her view there was evidence of dissociation brought on by the untreated PTSD that had allowed the offending to gain its momentum.

28Ms Cidoni opines that imprisonment will result in further traumatisation and will further compromise your mental health.  She says you may be a risk to yourself.

29As discussed with counsel during the course of the plea there are aspects of Ms Cidoni's report upon which I have placed absolutely no reliance, as the opinions are outside her expertise and simply unsupported by the evidence.

30I have also received a report from Dr Anthony Cidoni, a consultant psychiatrist (I note, for completeness, unrelated to Ms Cidoni), dated 22 August 2018, which was the date of your attendance upon him for assessment.  He says that your thought content revealed depressive themes and suicidal ideation without any current plan.  Dr Cidoni opines that you have a persistent depressive disorder and that the symptoms of the disorder are
re-experiencing the trauma associated with anxiety and depressed mood, with periodic other depressive symptoms.

31Dr Cidoni says that despite you reporting that you have periods of disassociation he did not find that to be the case.  He says your behaviour appeared well-organised and planned and does not appear dissociative, and appears to be an attempt at remuneration when no other remuneration appeared possible.  He says it appears that you were driven by significant resentment towards your brother.  He did not find a direct relationship between your PTSD and the offending behaviour.

32He did find that your mental state is fragile and vulnerable and there is a high likelihood - he describes it as ‘virtually a certainty’ - that your mental state will deteriorate in custody, with a significant escalation of anxiety and depression with an appreciable risk of suicide.

33In terms of treatment he says you require antidepressant medication, particularly if you are to be incarcerated, and cognitive behavioural therapy for the post-traumatic stress disorder.

34To the extent of any inconsistency between the reports of Dr Cidoni and
Ms Cidoni I have acted on the basis of Dr Cidoni's opinions.

35I have received reference material from two of your aunts with whom you spent school holidays when you were attending boarding school.  Your aunts clearly remain supportive of you.

36In the first reference the person described in the correspondence is at significant odds with the person who committed these offences.  Your aunt says you are remorseful for the offending and the distress it has caused within your family.  She expresses confidence as regard to your future.

37I also received a character reference from Richard Boyce; a friend who has known you for seven years as a professional adviser.  He says that in his view the offending is out of character.

38Correspondence from your other aunt, Dr Susan Lancaster, says that she spent holidays with you as a child.  She describes herself as ‘astounded’ to hear of your offending.  She says it is inconsistent with the person she has known all her life.  She says you are extremely upset and remorseful and she is confident that you would not commit offences into the future.

39I accept, for the purposes of sentencing, that you would find gaol more onerous due to your mental health deficits and the very high likelihood that your mental health would substantially deteriorate in custody.

40Your prospects of rehabilitation in my view are good.  You have no prior history, nothing subsequent.  These proceedings themselves are likely to have significant deterrent effect.  You have good family supports and supports within the community.

41Ultimately I have determined that I do accept that you have demonstrated some remorse by way of your admissions, plea and partial repayment.

42Your counsel points to a number of matters you are entitled to have taken into account in mitigation.  First, your plea of guilty, which you entered at an early stage - that is, at the first stage it was available on the current basis.  You have saved the community the time and expense of a trial.  You are entitled to the benefit of that plea and I have sentenced you on that basis.  I accept, as I have said, that your plea should be used as evidence of remorse.

43I take into account that you have had these matters hanging over your head for a significant period of time, and that the delay was largely attributable to issues with the evidence not having been obtained despite 17 months elapsing prior to charge, and the fact that there was still outstanding, at that time, the need to engage forensic accountants so that quantum could be properly determined.  I further accept that you would be vulnerable in custody.

44Your counsel's primary submission is that a community correction order is within range.

45The prosecution submit that while some immediately servable component is the only disposition open, it could be combined with a community correction order.

46As well as matters personal to you, to which I have referred - including your prospects of rehabilitation - I must take into account other relevant sentencing considerations.  General deterrence in relation to this kind of offending is of importance.  I must seek to deter not only you, but others who would engage in like conduct.  The sentence must manifest the community's denunciation of your conduct and impose just punishment.  I must seek to deter you from future offending, although in my view this can be given substantially less weight in light of your history.  Would you stand please?

47Having carefully considered all the matters put I am of the view that there is a disposition open other than an immediately servable term of imprisonment.

48On all three charges you are placed on a community correction order.  The period of the order is two years.

49You are to perform 250 hours of unpaid community work over the period of the order.  You are to submit to mental health treatment as directed by the regional manager.

50I direct it be noted in the records of the court that were it not for your plea of guilty I would have sentenced you to be imprisoned for ten months followed by a CCO.

51You have consented to an order pursuant to s.464ZF of the Crimes Act.  Accordingly I direct that you undergo a forensic procedure for the taking of a scraping of the mouth in accordance with sub-division 30A of Part 3 until a sample of sufficient standard is obtained for placement on the database.  I make the order having regard to the seriousness of your offending, the fact that it is not opposed, and in my view the granting of the order is in the public interest.

52I must inform you that if you do not consent to the taking of a mouth scraping under supervision of an authorised member of the police force then the sample to be taken will be a blood sample and police may use reasonable force to enable that procedure to be conducted.

53I will need to give you a direction in relation to attendance once I have got another copy that has that part.  We will just print another one.  Have a seat for a moment, please.  What will the station be, does anyone know?

54MR GULLACI:  I think Echuca, Your Honour.

55HER HONOUR:  Echuca?

56MR GULLACI:  Yes.

57HER HONOUR:  Thank you.  And I'll also give directions.  The address in relation to Corrections seems to be Bendigo?

58MR GULLACI:  Your Honour, my understanding is that that's correct, but there's a - there is an office is Echuca.  So as I follow it I think this is the place where she has to do the initial ‑ ‑ ‑ 

59HER HONOUR:  This is what we had yesterday, Ms Hassan, that we ‑ ‑ ‑ 

60MS HASSAN:  Yes it was, Your Honour.  With Maryborough and Bendigo.

61HER HONOUR:  We have to list it as Bendigo but there's a sub-office ‑ ‑ ‑ 

62MS HASSAN:  Yes.

63HER HONOUR:  ‑ ‑ ‑ somewhere that isn't on the system.

64MR GULLACI:  I had checked that, because my instructor is from Echuca, and so ‑ ‑ ‑ 

65HER HONOUR:  Okay.

66MR GULLACI:  ‑ ‑ ‑ it can - there is an office at Echuca but it must be overseen from Bendigo, I suspect.

67HER HONOUR:  Okay, we'll just wait for those.  Thanks.  All right, would you stand again please, Ms Mulcahy?

68Pursuant to s.464ZF(2)(a) I direct that for the purpose of undergoing the procedure you report to the officer in charge. I am going to list it as the Bendigo police station at 221 High Street, Bendigo, during the period of four weeks that commences 28 days from today, or once any appeal is finally determined, for the purposes of the sample.

69In more simple terms, 28 days from today a period of four weeks starts.  In those four weeks you have to present yourself for the mouth swab - it is just a big cotton bud that they put on the inside of your mouth.

70In relation to the community corrections order the formal direction I give is that you report to the Community Corrections office at 3 William Vahland Street, Bendigo - and that is within two clear working days of the making of the order.

71Mr Gullaci, your instructor's in court.  Can she make enquiries and arrangements about how that will be Echuca instead of here?

72MR GULLACI:  Yes, we'll do that, Your Honour.

73HER HONOUR:  All right, thank you.

74MR GULLACI:  Thank you.

75HER HONOUR:  Counsel, is there anything further?

76COUNSEL:  No, Your Honour.

77HER HONOUR:  I need to give you a warning in relation to breach,
Ms Mulcahy.  If you breach this order you will be brought back before me.

78If you breach this order I will have no option but to send you to gaol.  It is not a question of it being inconvenient, it is not a question of you having responsibilities as regards your current employment.  The way you have to think about it - and I say this so that you are under no illusions about the seriousness of this.  What stands between you and going to gaol is absolute compliance with this order.  Do you understand?

79OFFENDER:  Yes.

80HER HONOUR:  Very well, I'll sign the order.  Would you show that to counsel and then have Mr Gullaci approach and have his - or his instructor - and have his client sign it please?  Thank you.

81I thank counsel for their assistance.  Mr Gullaci, I'm going to excuse you.  I just want to discuss the rest of the circuit with Ms Hassan.

82MR GULLACI:  As Your Honour pleases.

83HER HONOUR:  Thank you.

84MR GULLACI:  Thank you, Your Honour.

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