Director of Public Prosecutions v Paapaa
[2019] VCC 2032
•10 December 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. 19-00754
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KATERINA PAAPAA |
---
JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 August 2019, 4 September 2019, 9 December 2019 | |
DATE OF SENTENCE: | 10 December 2019 | |
CASE MAY BE CITED AS: | DPP v Paapaa | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2032 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Plea of guilty - one charge of obtaining property by deception – rolled up charge – no prior criminal history – total amount of money obtained $106, 599.28 from 28 separate transactions – gambling addiction – genuine remorse – general deterrence is the predominant sentencing consideration – breach of trust – offender suffered a stroke and requires support and assistance in the community.
Legislation Cited: Crimes Act 1958, Sentencing Act 1991,
Cases Cited:
Sentence: Community correction order for a period of 2 years and 6 months.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C Duckett | Office of Public Prosecutions |
| For the Accused | Ms K Webster | Gallant Law |
HIS HONOUR:
Introduction
Katerina Paapaa, you have pleaded guilty to one charge of obtaining property by deception contrary to s 81(1) of the Crimes Act 1958 which carries a maximum penalty of 10 years imprisonment.
You have no prior criminal history.
Circumstances of the offending
A prosecution opening was tendered on the plea which may be summarised as follows:
You, Katerina Paapaa were employed as an assistant manager at the Adina (Quest) Hotel at 140 Collins Street, Melbourne for a period of approximately 5 years. In August 2017, Ultiqa Hotel and Resorts purchased and took over the hotel renaming it Ultiqa Hotel. You were re-employed in the same capacity by Ultiqa Hotel and Resorts.
Your primary role was the day to day running of the front office of the hotel. In that role you managed guest enquiries and bookings and dealt with guests during their stay. You were also responsible for any cash transactions.
You initially handled guest bookings through a Property Management System called RMS. In November of 2017 Ultiqa updated the booking system to a system known as HIRUM. When this occurred, the systems should have both been audited but they were not. The systems continued to be able to operate side by side and as such, you were able to access both systems and manipulate records.
At the time of the offending you worked 76 hours a fortnight and were paid an hourly rate of $25.30. Your fortnightly gross wage was $1,923.08. An examination of your National Australia Bank Account shows that you had spent $54,028.73 over a six-month period and had short term loans with Sunshine loans and Ezi Debts.
When Ultiqa Hotel and Resorts took over the hotel the manager, Gavin Henry, had concerns about the apparent lack of cash flow through the hotel and that it was operating approximately $20,000.00 to $30,000.00 under profit. From August of 2017 the hotel ran at a loss every month.
On 19 March 2018, you had a stroke while you were at work. Whilst you were away Mr Henry took over managing the front office. As a part of his work he went through outstanding invoices and sent what he thought were unpaid invoices to various persons and businesses for payment.
When Mr Henry sent the invoices, he started receiving replies that the businesses had no knowledge of the guest names as being employed by them.
Mr Henry then started contacting those guests who had left their information on the system and was told by them that they had paid cash for their stay at the hotel. Mr Henry could find no record of the cash payments having been made in the HIRUM system. All the system showed was either that the booking had been cancelled, the guest was ‘no show’ or that the payment had been made by credit card.
The entering of credit card details by you enabled you to balance the daily accounts and to offset the cash amounts so that it was not readily identifiable that cash payments had or were being made. Mr Henry then went through the January and February 2018 bookings. When he contacted the guests, they provided a copy of the receipt they had been given by you. These receipts were false and had been created by you when you arranged for the guest to stay at the hotel at a so-called ‘discounted rate’ in exchange for payment in cash.
From 10 to 13 April 2018, a company accountant, Bronwyn Marshall, attended at Ultiqa Hotel, Little Collins Street and went through the RMS and HIRUM property management systems. When she did this she discovered that guest accounts had been manipulated in the following ways:
·arrival and departure dates had been amended;
·room details had been changed;
·email addresses and phone numbers had been altered (usually by one digit);
·receipts had been cancelled or re-used for other bookings;
·guests credit cards had been used to pay off other guest’s accounts;
·guests credit cards details had been used to pay invoices marked as due when they had already been paid in cash; and
·false bookings had been created.
During the first week of May 2018, Mr Henry visited you in hospital. While he was there you told him that you had ‘done something really bad’ and had ‘taken money from the current guest’. Mr Henry recorded this conversation on his telephone.
The prosecution opening details 28 instances of offending in various amounts between 7 October 2017 and 19 March 2018, the total quantum of the money you obtained by deception being $106,599.28. As the prosecution opening summarized the details of each transaction, I will not repeat those details in these sentencing reasons.
On 11 May 2018, Detective Senior Constable Andrew White, was on duty at the Melbourne CIU when Bronwyn Marshall approached him and gave him the audit that she had compiled.
On the 2 August 2018, you attended the Melbourne West Police Station by appointment. On attending you were placed under arrest and interviewed. During the record of interview you exercised your legal rights on advice and elected to make a ‘no comment’ response to the allegations as they were put to you.
Nature and gravity of offending
The total amount of money you obtained as represented by the charge on the indictment is $106,599.28. However the charge is a rolled up charge and as noted, represents 28 separate transactions where you manipulated information within the property management systems of your employer’s business in order for you to obtain the various amounts of money over the charge period.
Ms Duckett, who appeared on behalf of the Director of Public Prosecutions, submitted that in the circumstances your offending is serious. Further, while the amount of money itself makes the offending serious, your conduct also represents a serious breach of trust. Ms Webster who appeared on your behalf did not take issue with that assessment.
While I accept that you had developed a gambling problem in the months leading up to the initial date of the offending period, it is clear from the many instances of offending as detailed in the schedules attached to the charge, that you were essentially using your employer’s money to satisfy that addiction. I note however that there is no evidence of you using the money to fund a lavish lifestyle, rather that the money was directly lost in poker machines.
The hotel manager, Gavin Henry prepared a victim impact statement which was tendered on the plea. He notes that your conduct put an enormous amount of stress on him as he was questioned by management as to his capacity to manage the business. He believed that he may lose his job as a result of your conduct. As a result he notes he has been emotionally affected which has also impacted on his family life.
Personal circumstances
You are 47 years of age.
You were born in Samoa and your mother still resides there. You have no contact with your father. At the age of eight you migrated to New Zealand and were raised by your maternal grandmother. Until the age of 16, you believed that your grandmother was your mother.
You left home at age 18 to live with your then boyfriend with whom you remained for four years. Your partner was physically abusive towards you throughout that relationship. You have one child from the relationship, a daughter, now currently 25 who currently cares for you as you recover from your stroke.
In 1995, you formed a new relationship which lasted for some eight years. You have two children from that relationship aged 22 and 21 years.
The relationship was punctuated by periods of separation and following the birth of your first son, you left the relationship and resided at a women’s refuge for six months. You returned to your partner and your second son was born however the relationship finally ended in 2003.
You moved to Wellington in 2003 in order to reunite with your biological father which was not a successful endeavour and you ultimately moved to Melbourne in 2005 with your three children. You have remained in Australia since although you remain a New Zealand citizen.
You completed high school in New Zealand and have had a steady working history since leaving school broken by some periods of time when your children were born.
In 2003 to 2005 you were employed in office administration in Wellington. From 2005 to 2010 you were employed as a housekeeper at Quest. From 2010 to 2011 you were employed by Medibank as a call centre operator. From 2011 to 2014 you returned to your role as a housekeeper at Quest and were also required at times to perform some administrative duties including handling reservations and payments.
From 2014 to 2017 you were an assistant manager at Quest Hero Hotel and from 2017 to March 2018 you continued that employment with the newly branded hotel, the Ultiqa Hotel.
On 19 March 2018, you suffered a stroke. Since that time you have been receiving Newstart payments.
The stroke you suffered was attributed to hypertension. The left side of your body suffered paralysis however you have regained some movement in your left leg while your arm and hand currently remain paralysed. You are able to walk small distances with the aid of a walking stick however for longer distances you use a wheelchair. You currently require assistance with tasks such as dressing, showering and preparation of meals.
A letter was tendered form Western Health which summarises your treatment over the past 16 months since your stroke. The prognosis opined by Dr Vince Lavery is cautious in relation to further significant gains in your mobility and you have been discharged from any future reviews. You remain on medication for your hypertension.
A report was prepared by Dr Aaron Cunningham, psychologist, and tendered on the plea. Dr Cunningham conducted psychometric testing and found that you do not suffer from any thought or behavioural problems. He did find however that your self-doubt, stress and worry correlated with post-traumatic stress disorder. He also confirmed what is perhaps an obvious observation, that you were addicted to gambling during the offending period and engaged in the offending to cover your losses. He notes that you are no longer addicted to gambling and have demonstrated insight into the wrongfulness of your behaviour.
A short report was also tendered form psychologist Gina Liuzzi. You have been seeing Ms Liuzzi since June 2019 and have attended five sessions with her. She note that you have been engaged in the counselling process and she too, notes that you have shown symptoms of post-traumatic stress disorder. Ms Liuzzi also confirms that you have shown insight and that you have demonstrated shame and regret for your actions.
A number of references were tendered from long terms friends and from family members including your children. All speak with a united voice that your conduct is extremely out of character and that you have expressed genuine remorse. They also convey that you are otherwise a hard working person who is dedicated to your children and family life.
A letter which you wrote to your employers in this matter was also tendered. In that letter you sincerely apologised for your actions. You specifically express your apology to your manager Gavin Henry noting that you abused his trust. You also state that although you do not currently have the means to pay back the money you obtained, you stated that you will pay a portion of your Newstart Allowance each fortnight.
Relevant sentencing considerations
I take into account your plea of guilty which was entered at the committal mention. Further, I note that you effectively confessed to your manager Mr Henry when he came to visit you in hospital following your stroke. In the circumstances your plea was entered at the earliest available opportunity and as such it has saved the time and expense of a trial and has thereby facilitated the course of justice.
Over and above your plea of guilty I accept that there is evidence of genuine remorse. It is clear from the reports and testimonials tendered that you have consistently expressed remorse for your conduct. More importantly, your remorse is appropriately directed to the victims in this matter being your employers and more directly, your manager. Thus you have insight into the direct effect of your actions and although you are currently unable to compensate your victims, you have made a commitment to repay the money when you are able.
You come before the court at age 47 with no prior criminal history. It is clear that you became attracted to gambling and then addicted, with the all too common consequence of obtaining money by deception in order to fulfil the craving to gamble further. Although it was your stroke that was the trigger to you ceasing gambling initially, you have been able to move on and no longer have a difficulty with gambling. As such, in the circumstances in my view specific deterrence need not carry weight in the sentencing discretion.
Further, you have engaged in counselling in order to address the issues you have been dealing with as a result of your conduct and the effects of your stroke. You also enjoy the ongoing support of your family and friends. Thus in all the circumstances I assess your prospects of rehabilitation as very strong.
General deterrence is the predominant sentencing consideration in cases such as this. A message needs to be sent that those who seek to abuse the trust of their employers and take money that does not belong to them will face consequences.
Ordinarily a term of imprisonment is called for in cases like this given the amount of money that was obtained and the breach of trust. However, because of a number of relevant considerations including the fact that you have no prior criminal history and that you have suffered and continue to suffer the effects of your stroke, it was submitted that a community correction order is a disposition that is within the sentencing range.
On 22 August 2019, I had you assessed for a community correction order with recommendations of unpaid community work and programs to reduce the risk of reoffending. While you were assessed as a low risk of reoffending, because of your physical difficulties as a result of the stroke, the assessor was of the view that you would be unable to participate in the type of works sites provided for community work, as it was still my view that if the court was to place you on a community correction order, there must be a punitive aspect to it that involves community work. As such on 4 September 2019, I deferred sentence pursuant to s 83A of the Sentencing Act 1991 in order to ascertain if your physical capacity would improve or if alternative community work could be found that would be able to accommodate your specific needs.
The matter returned on 9 December 2019 and while there is still some uncertainty in relation to your capacity to work, it seems that there are options that community corrections officers are able to explore that could enable you to engage in community work.
In all the circumstances in my view a community correction order is able to meet the relevant sentencing considerations.
Sentence
Ms Paapaa would you please stand.
Katerina Paapaa, on Charge 1, obtaining property by deception, you will be convicted and placed on a community correction order for a period of 2 years and 6 months.
The community correction order will require you to complete 150 hours of community work over the course of the order and it will contain a condition requiring you to undertake programs to reduce the risk of you reoffending.
Pursuant to s 48CA of the Sentencing Act 1991, I direct that all of the hours that you satisfactorily complete pursuant to the program condition may be credited as hours of unpaid community work.
Pursuant to s 6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty, I would have sentenced you to a period of 6 months imprisonment together with a community correction order.
- - -
0
0