Director of Public Prosecutions v Nanai
[2015] VCC 949
•14 July 2015
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-14-02099
CR-14-02105
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
ROBIN NANAI
and
MELISSA GILLES
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JUDGE: | HIS HONOUR JUDGE PUNSHON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 June, 29 June, 2 July and 14 July 2015 | |
DATE OF SENTENCE: | 14 July 2015 | |
CASE MAY BE CITED AS: | DPP v Nanai & Anor | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 949 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Pickering | OPP Victoria |
| For the Accused Nanai | Mr B. Johnston | Dribbin and Brown |
For the Accused Gilles Mr J. Lowy James Dowsley & Assoc.
HIS HONOUR:
1 Robin Nanai; you have pleaded guilty to one charge of theft. Melissa Gilles; you have pleaded guilty to one charge of false accounting. The maximum penalty for each offence is ten years' imprisonment.
2 Mr Pickering opened the circumstances of the offending by reading from a summary of prosecution opening, which was tendered.
3 In short; Ms Gilles, you were employed as an accounts clerk for a bedding business and were responsible for various matters, including taking cash to the bank each day and reconciliation of trading accounts. You had been working for the company for about ten years prior to the offending, and performed the role of accounts clerk for about four years prior to the offending.
4
The offending occurred between mid-February and mid-September 2013, during which period you gave cash and cheques to your partner, Mr Nanai. The cash was then used by you, Mr Nanai, principally to purchase drugs for yourself and you, Ms Gilles, however some of the money was sent by you,
Mr Nanai, to your family in Samoa. You, Ms Gilles, then altered accounting records to avoid detection.
5 The total amount of money stolen was $325,772, which is obviously very considerable. The sum of $23,660 seems to have been sent to Samoa. A TV set was also purchased with the stolen funds.
6
I am not able to determine precisely how much was used on drugs for you,
Mr Nanai, compared to you, Ms Gilles, but it seems you, Mr Nanai, used more than Ms Gilles. Together you had a joint habit of up to three grams of ice a day, which is likely to explain the dissipation of funds.
7 MR JOHNSTON: Your Honour, sorry to interrupt. That he sent money not only back to Samoa, but also to New Zealand.
8 HIS HONOUR: Yes, I thought it was. I had it in my mind it was New Zealand rather than Samoa, but my note said Samoa. Anyway, it was both.
9 MR JOHNSTON: It's the psychological report; p.3, Your Honour.
10 HIS HONOUR: It doesn't make any difference.
11 MR JOHNSTON: No. Apologies for interrupting.
12 The charges of theft and false accounting cover your joint activity. Your theft, Mr Nanai, is best seen, overall, as a joint activity with Ms Gilles, although you, Ms Gilles, have not been charged with theft. The charges were arrived at by negotiation between the parties, and it was submitted by the prosecution that I should view your actions as a joint undertaking, with each of you playing different roles to facilitate the scheme.
13 Despite the fact that the focus of your charged actions, Mr Nanai, are on the appropriation of the money, and yours, Ms Gilles, are on the cover up to avoid detection, it was accepted by your counsel, Ms Gilles, and not challenged by yours, Mr Nanai, that you should each be seen as equally responsible for the scheme.
14
Mr Pickering noted that the principal distinguishing feature between the culpability of each of you is your breach of trust towards your employer,
Ms Gilles. Ms Gilles, you told your counsel that your aunty, who brought you into the business, was more like a mother, that the owner did more for you than your father, and that the business was like a family.
15 No victim impact statement was tendered, but the impact of offending such as you both engaged in is obvious.
16 Mr Nanai, you personally resisted the suggestion of equal responsibility and sought to assume greater responsibility. You used most of the drugs. Your relationship with Ms Gilles had its problems and you were violent towards her at times. This was perhaps due to taking ice. It seems that Ms Gilles was not aware that you were misappropriating the money and using it to obtain drugs at the outset. In the end, I think your determination to take greater responsibility was motivated by your desire to protect and help Ms Gilles, and your child, and lessen her punishment by assuming more yourself. You have been together for about three years and I can well understand this. It seems likely you feel responsible for your partner’s fall from grace and are shamed by this.
17 Mr Nanai, your relatively low level of cognitive functioning was a feature of submissions on your behalf. A psychological report from Pamela Matthews was tendered and she gave evidence. I accept the thrust of her evidence concerning your intellectual capacity, although your counsel initially sought to rely on the Verdins principles to reduce your moral culpability, making you an inappropriate vehicle for general deterrence, and supporting the argument that prison would weigh more heavily upon you because of your cognitive limitations. This was resisted by the prosecution, and after discussion it was accepted by your counsel that it was sufficient if I viewed your deficits as part of the background material concerning the crucial questions of who you were, why you offended, and what are the prospects of you offending again.
18 Just because you have a relatively low IQ it does not necessarily follow that you are an inappropriate vehicle for general deterrence, although a person with such a disability may be a less appropriate vehicle. Similarly, your IQ does not mean that imprisonment will necessarily be a greater hardship.
19 However, courts generally treat people with low IQ’s, particularly when they have had difficult and disadvantaged backgrounds, more leniently, and that is what I intend to do here.
20
Mr Pickering made the point, when questioning Ms Matthews, that despite your low IQ you were able to function well in society and manage your own business. I do not know precisely what your business involved, but
Mr Pickering, as I follow, was emphasising that people with low level IQ’s are often unable to function in this way, and may justify very considerable leniency when being punished for their offending. All cases are different, and as I see it the application of these considerations is a question of weight in the synthesis of all relevant sentencing factors.
21 Both your low level IQ and your deprived upbringing - particularly given that this is your first offence - require punishment to be mitigated. I accept that you are likely to be vulnerable to the deleterious influence of others in prison. As noted in discussion, your size may well protect you from physical abuse, but that does not mean that others will not seek to use it to their advantage.
22 I have just misplaced Mr Nanai's birthdate. I think he is about to turn 26, is he not?
23 MR JOHNSTON: His date of birth is 16 July 1989.
24 HIS HONOUR: He's 26 then.
25 MR JOHNSTON: It's in my written submissions, Your Honour. It is?
26 MR PICKERING: Yes, 26 in two days.
27 HIS HONOUR: Yes.
28 MR JOHNSTON: As Your Honour pleases.
29 HIS HONOUR: Sorry?
30 MR PICKERING: Twenty-six in two days from the opening, Your Honour.
31 HIS HONOUR: In two days' time, yes.
32 MR PICKERING: He's nodding, Your Honour, yes.
33 HIS HONOUR: Yes. You are almost 26, which is still relatively young, and the offending occurred two years ago, when you were aged 23 and 24. You have no prior matters and nothing pending. You came to Australia aged 20, although you returned to Samoa and New Zealand for about six months when your father died in 2011, and also in late 2013, to attempt to get off drugs.
34 You have a socially disadvantaged background, the details of which were outlined by your counsel and summarised in his written submissions, which were tendered. Ms Matthews also detailed your background. Although you are a gifted rugby player your education was limited and you left school aged 13 in Year 7.
35 Aside from an uncle in Australia with whom you have worked as an arborist, you have no other family here. You have a good work history; also detailed in your counsel’s written submissions.
36
You began using ice in 2012 and developed a serious addiction in 2013.
Ms Gilles joined you in using drugs, although - as noted earlier - her consumption was less than yours; perhaps considerably so. It seems that in the setting of drug use your lives spiralled out of control. You were working intermittently. You and Ms Gilles lost your accommodation; you fell into rent arrears and moved into emergency accommodation.
37
You instructed your counsel that you have been drug free since late 2013 and have put on 20 kilograms. You are currently living in private rental accommodation and are working as an arborist with your uncle. You and
Ms Gilles had a son born in October last year. It was an unexpected pregnancy.
38 Your counsel emphasised the relationship between your offending and drug use. I accept that drug use was central to your offending, and that if you can remain drug free your rehabilitation prospects should be very good. You have no long-term history of addiction and were able to cease taking drugs at your own initiative, returning to New Zealand to go "cold turkey". This augurs well for your rehabilitation, but you would nevertheless be wise to seek drug counselling.
39 You made admissions to police and have pleaded guilty at the first reasonable opportunity. You must benefit from this, as noted in submissions. I also accept that you have shown remorse, and expressed insight into the impact of your offending on the victims. I accept that the weight of knowing that you are likely to be imprisoned has been present for some time, and it is to your credit that you have taken the rehabilitative steps you have. Through no fault of yours there was some additional delay this year because Ms Gilles was unclear about whether she would persist with her plea of guilty.
40 When able you want to obtain the best paid employment you can and provide for your family.
41 Your counsel argued that I should consider whether release on a community correction order (CCO) was appropriate, but that if I consider only imprisonment could be imposed I should then consider imprisonment combined with a CCO, and failing that option, impose a sentence of imprisonment that maximises the opportunity for rehabilitation in the community. On behalf of Ms Gilles it was conceded that imprisonment must be imposed. As I understand, the thrust of submissions concerning the structure of any such sentence raised similar considerations as those just referred to.
42 Mr Nanai, your counsel mentioned that you might be at risk of deportation but he did not rely upon this to mitigate punishment. Your current status in Australia is unclear, and if moves to have you deported were made, your counsel thought it likely that this could be resisted. In these circumstances it seems to me, as already noted in discussion, that it is not feasible for me to attempt to sensibly quantify the level of risk of your deportation, and that I am required to assume the absence of any realistic risk of deportation.
43 On behalf of the prosecution, Mr Pickering submitted that only immediate imprisonment was appropriate. I agree. Mr Pickering also made submissions concerning the absence of factors that often are pressed for the imposition of a CCO.
44 In coming to the conclusion that only immediate imprisonment is appropriate, I have considered whether sentencing purposes can be achieved by the imposition of a CCO, particularly in light of Boulton’s case, and recent appellate decisions concerning this case. I have also considered whether sentencing purposes can be achieved by the imposition of a term of imprisonment in combination with a CCO on release. I consider the proper course is to impose a sentence of imprisonment with a non-parole period that seeks to maximise the opportunity for rehabilitation. Of course, I understand you may have to serve every day of the sentence, and that the non-parole period is merely the date on which you would become eligible for release on parole; a matter for the Parole Board, under whose jurisdiction you would be if released on parole.
45 Your counsel, Mr Nanai, referred to worry about the welfare of your partner and child you would experience in custody. Of course, this will be so, and I expect will assist to motivate you to remain drug free and seize rehabilitative opportunities, with a view to being in the best position to support your family on release.
46 Mr Lowy appeared for you, Ms Gilles. I have already referred to several matters pertinent to your case.
47 Your background was summarised by counsel and is also detailed in a psychological report from Dr Aaron Cunningham. You have just turned 30.
48 You completed Year 12 and then studied legal studies before working as a legal secretary for 18 months. You then got employment through an aunt with the employer, who is the victim of your offending.
49 Like Mr Nanai, and so many others who appear in this court, you come from a broken home; your parents separating when you were 11. Following this you had a difficult relationship with your mother, an awkward relationship with her next partner of two years, and a poor relationship with her next partner. You left home at 18 but did return, and stayed until 2012, when your mother asked you to leave because of the friction between you and your mother’s partner. You then moved in with Mr Nanai, upon whom you relied financially.
50 You told Dr Cunningham you hated where you were living, alongside "prostitutes and drug addicts". Your home flooded in early 2013 and you were unable to receive compensation. You moved into an aunt's and then found other accommodation in August 2013. When Mr Nanai returned to New Zealand to stop using drugs, you used this as a break from the pressure of drugs and pending court charges. You were under much financial stress in early 2014; lost your rental property and lived with a cousin, who was also using ice, and you both lost that accommodation. You lived for some time in a motel and then at the Gatwick; an experience you understandably found very difficult. You lived in other emergency accommodation, which you also found very difficult. You reunited with Mr Nanai in early 2014, and after discovering you were pregnant you returned to your mother’s house, but were evicted in December 2014. You then obtained a six month lease on your current residence in Sunshine, where you and Mr Nanai live. This lease has been extended indefinitely. Your son’s birth was difficult.
51 When making submissions on behalf of Mr Nanai, Mr Johnston described his life during 2013 as "absolute chaos". I have already referred to your unsettled housing arrangements, and other difficulties you were experiencing. You told Mr Cunningham you also found work too demanding after your aunt left the business, and more was demanded of you when a new employee, who was not up to the job, was hired.
52
It was not easy to follow the chronology, but it seems you discovered
Mr Nanai was stealing the money in February/March 2013. You told
Dr Cunningham you started using ice after you discovered Mr Nanai was using it. Your counsel said you began in about May 2013. This was to facilitate late night working hours. You told Dr Cunningham that Mr Nanai became an "animal", and was violent towards you in mid-2013. The dates in Dr Cunningham’s report seem to be in error. You ceased using in October 2013, when you recognised that the drug was ruining your life. You told your counsel that you could not cope with your work; you were "an absolute mess" and were not functioning. You said you were "out of your wits". You said you did not appreciate just how much money was being taken from your employer.
53 Paying regard to a history of failing to cope under pressure, Dr Cunningham diagnosed you as having a generalised anxiety disorder. He said you worry excessively and have difficulty controlling this; experiencing tension, fatigue and difficulty concentrating. He thought the stress of incarceration would aggravate this disorder, psychological intervention was needed to treat you, and this would reduce your risk of re-offending.
54 Your counsel noted that you were unlikely to obtain another position of accounting because of your offending.
55 I accept that there is remorse reflected in your plea. You have assumed responsibility for your role, resisting Mr Nanai’s attempts to take the blame. I was told you have written letters of apology to your employer, and have struggled with shame but have been uncertain about whether you are entitled to send them off, and so have not done so. The speedy manner in which you dealt with your drug taking is to your credit.
56 You must benefit from your plea of guilty. You did not indicate a willingness to plead as early as Mr Nanai, who, as Mr Pickering indicated, was always going to plead guilty.
57
A critical issue at the conclusion of submissions on Friday 26 June was what would happen to your child, who it seems is well cared for by you and
Mr Nanai. There is no family who can care for the child for any period beyond a very short one.
58 This morning it was confirmed that the Deputy Commissioner has expedited your request, and approval for your child to join you in prison tomorrow has been granted.
59 I consider your rehabilitation prospects to be very good, with the caveat that you must remain drug free. However, the absence of any criminal record or pending matters, and your ability to remain drug free since you ceased using ice, are very encouraging. Your commitment to your child is likely to be an important rehabilitative driver.
60 I consider imprisonment with a non-parole period to be the appropriate penalty in each of your cases. I have considered whether either a CCO by itself, or a CCO in combination with imprisonment, could meet sentencing purposes, despite - in your case, Ms Gilles - your counsel’s concession that only immediate imprisonment was appropriate.
61 The offending is very serious. The sum stolen is very considerable. The period of the offending is sustained, and the individual acts constituting the offending repeated many times. General deterrence is an important sentencing factor.
62 On the other hand, neither of you have any prior or subsequent criminal matters, nor is there anything pending. Drug use - in particular; ice - is at the core of the offending. Neither of you have had long-term habits. You were both able to cease drug use and have each remained drug free. You each have a proven capacity to live decent honest lives. Provided you can remain drug free you have very good future prospects. You both had difficult upbringings but now both have your son, and each other, as the focus of your future. Your offending was a joint exercise. It seems very likely that both your lives were in "absolute chaos" at the time of the offending, as your counsel put it, Mr Nanai. It seems you, Mr Nanai, received the major financial benefit from the offending. I can understand why you consider yourself to be the reason for Ms Gilles decline, but your ready acceptance of this, and desire to shield her, is to your credit. There is psychological material pertinent to both of your circumstances. Despite the breach of trust being specifically attributable to you, Ms Gilles, I consider the same sentence should be imposed on each of you.
63 You will each be convicted and sentenced to two years' imprisonment. I fix a non-parole period of 12 months.
64 Had you not pleaded guilty I expect I would have sentenced you both to about two years and nine months' imprisonment, with a non-parole period of about one year and nine months. All right, I'll leave the Bench.
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