Director of Public Prosecutions v Orr
[2024] VCC 511
•23 April 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-01629
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JENNIFER ORR |
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JUDGE: | HIS HONOUR JUDGE MOGLIA | |
WHERE HELD: | Latrobe Valley and Melbourne | |
DATE OF HEARING: | 8 February & 9 February 2024 | |
DATE OF SENTENCE: | 23 April 2024 | |
CASE MAY BE CITED AS: | DPP v Orr | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 511 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence.
Catchwords: Sentencing – Guilty Plea – Theft – Single rolled up charge – $31,400 – 47 transactions – Employee – Office Management – Bookkeeping – Trusted by employer – Breach of trust – Deterrence – Denunciation – Punishment – Imprisonment – Appropriate punishment – CCO – Fine.
Sentence:Fine of $65,000 with conviction.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Z. Petric | Office of Public Prosecutions |
For Accused | C. Grant | Garde-Wilson |
HIS HONOUR:
1Jennifer Orr, you have pleaded guilty to one charge of theft being a rolled up charge, namely that between 31 May 2016 and 10 March 2020, covering 47 transactions, as the office manager or book keeper for Chet's Professional Services Pty Ltd, you stole $31,400. You have paid that money back.
Summary of offending
2At the time of the theft, you were in an office management or bookkeeping position for Chet’s, and you had been for some 22 years until a number of discrepancies in your reporting of payments were uncovered and you were fired.
3There were a range of other allegations made during the investigation, none of them have proceeded. The one that has proceeded is the single charge as I have set out.
4You made transactions in various sums over those 47 occasions, but all roughly equivalent to $150 per week, which you listed in the company records as being for rent for a Paynesville property. There is no issue between the parties that that relates to a property you own with your partner as an investment/holiday property.
5The victim in this matter is Chet's Services and a victim impact statement was read by Wendy Cline during your plea. She speaks as the wife of Chet Cline, the owner of the company, and as somebody who observed her husband and his operation of the company over the years, and of you and your role.
6She says that Chet relied heavily upon his team and that you were a key member of that team, and that your trust was built over many years. He had surrounded himself with a limited number of people whom he also deemed to be friends, and you were one of that number. You had indicated to him sentiments to the effect of, ‘you know you can trust me, I am looking after you’. She describes that her husband was utterly shattered by discovering your fraud and your breach of that trust.
7Tragically, during the investigation he was diagnosed with cancer and has since died. Ms Cline, in her observations of your relationship with him were that Chet would trust you and never question your integrity.
8During the investigation it was found that there were deleted records from the company finances and that it was a mess and ultimately Chet, your friend, died a betrayed man.
Procedural history
9Police arrested and charged you in relation to the matter, which was contested, and your guilty plea or agreement to enter a guilty plea happened on the eve of the trial listed in February 2024 in the Latrobe Valley Court.
10I hasten to add that by a considerable degree the amount of money in issue in that trial was more; it was more than $300,000. You will not be sentenced in relation to those allegations or that amount.
11It is agreed between the parties, that at an earlier stage in the proceeding, there was some discussion about whether the case could settle on the current basis, namely the $31,400 that you took for your Paynesville property. I will sentence you only in relation to that.
12It is said on your behalf, that your guilty plea represents not only a co‑operation with the courts in facilitating the course of justice and an acceptance of responsibility, which I find to be amply established on the evidence, but also subjectively it represents remorse on your part for your offending.
13I accept that you are somewhat remorseful, and I attach weight to that in arriving at an appropriate sentence.
14You relied on Exhibit 1, a letter from Lisa Chessells who is somebody who has known you for 13 years and has known you to be a good person who is extremely distressed by your current circumstances. I note however that knowing you for those 13 years includes the four years during which, unbeknownst to Ms Chessells, you were involved in this fraud. She speaks about your contribution to the community through attending and helping at op shops, providing assistance to cancer patients and other charitable organisations. She says you have a generous heart.
15I accept that you may well be a generous and contributing person to those in the community who have been assisted by you, but I do not accept that description of you in total. Your offending, I find, was driven by greed and for your own benefit. It seems to me that you had a sense of entitlement to take what you thought you deserved, contrary to your work obligations.
Personal circumstances
16You are married, you live a settled life and, until this offending came to light, you were a respected member of the community. That can no longer be said.
17Whilst you have no criminal history, in light of the repeated offending and your trusted position over many years, I find that your prospects for rehabilitation are guarded. That is chiefly because no convincing reason was provided to this court about how it is you came to convince yourself that you were entitled to this money.
18I think the only conclusion that can be drawn from those circumstances is that you had convinced yourself that you were entitled to take what you wished. That sense of entitlement was entrenched over four years, throughout 47 transactions at varying periods of time within that overall period, and for varying amounts. You made multiple decisions to continue the fraud and it is in that setting that I find that your prospects are guarded. This will be a matter requiring deep reflection if you are to achieve change.
19I have received the report from Dr Mathew Staios, a clinical neuropsychologist dated 6 March 2024 (Exhibit 2).
20In it, based largely on what you told him, he found that you had an upbringing free of neglect, you enjoy a marriage without any significant issues, and whilst you had undergone recent trauma through the very sad death of your grandson, you reported no symptoms of depression, anxiety, substance use or other forms of addiction like gambling in the lead-up to your offending. Your motivation to offend, he comments, was to funnel money into your superannuation, in effect.
21Given the money the subject of this charge was funnelled into your property, I make no finding about whether your comment of funnelling money into your super refers to the other allegations or this charge.
22Dr Staios refers to your conduct in relation to this offence as opportunistic. I do not accept that. If the transfers were one or two in number or a few, that might well be opportunistic, but yours were persistent and a concerted effort to defraud your boss.
23He assessed you and found no cognitive or perceptual disturbances, no personality disorders, but that you do have an avoidant personality, symptoms of depression and anxiety, and I take those into account.
24As to risk, Dr Staios says that you have some risk factors. Your past offending, your poor emotional regulation, and your depression and anxiety. But because of your stable home life and family support, no history of substance use, and no evidence of a serious psychiatric or anti‑social disorder, you have some protective factors. I do not finding that you are at an elevated risk of further offending.
Sentencing issues
25The charge of theft attracts a maximum penalty of 10 years' imprisonment. Whilst the amount of money stolen, or the value of items stolen, is an important factor in assessing a theft, so too is whether or not the theft was organised, repeated, the period of time over which it happens and the number of transactions it involves.
26The quantum of $31,000 could have been dealt with in the Magistrates' Court such is that amount. But the number of transactions and the period of time over which they occurred are, as can be seen from your counsel's sample cases, regularly the kind of conduct that makes its way into the higher courts.
27Yours was a serious example of theft and breach of trust. Your responsibility for your actions is complete. You were the sole offender and there has been no factor, other than those personal matters that I have addressed, suggested as having been causative or leading you to offend in that way.
28I must sentence you in a way that deters other people from engaging in this kind of theft and dishonesty, that also denounces what you did, and punishes you for what you did.
29The prosecution, focusing on the amount of money that you took, have not called for a term of imprisonment.
30Your counsel has submitted that short of locking you up, I can make an appropriate order to punish you. I can make an order requiring you to engage in unpaid community work, under a community correction order without having you assessed, and upon considering that, the parties agreed that I could also achieve appropriate punishment by imposing a fine.
31I do not find that there is any significant connection between your mental state or mental health, and your risk of offending. There was no suggestion that your offending was caused in any way by such matters, but rather greed.
32I am conscious of the burdens on Community Corrections and the absence of the usual risk factors, such as drug and alcohol abuse or other like factors in your case.
33So, I have determined, consistent with the parties' submissions as to how punishment can be exacted, to convict you – it will be on your record and you must disclose it – and to fine you.
34Jennifer Orr on the charge of theft you are convicted and fined a sum of $65,000.
35If you did not plead guilty to this charge, I would have imposed a sentence of 18 months with a non-parole period of nine months on this charge.
36I note the position of the parties that you have re-paid in full the $31,400 and so I do not make any further orders in relation to that payment, it already having been made.
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