Director of Public Prosecutions v Patel

[2018] VCC 1423

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

AT MELBOURNE
CRIMINAL JURISDICTION

Case No.CR-17-02387

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALOP PATEL

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	3 September 2018
DATE OF SENTENCE:	6 September 2018
CASE MAY BE CITED AS:	DPP v Patel
MEDIUM NEUTRAL CITATION:	[2018] VCC 1423

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  PLEA - Obtaining financial advantage by deception - Plea of guilty.

Legislation Cited:              Sentencing Act 1991; Crimes Act 1958

Sentence:Community Correction order for 3 years with conditions; Forensic sample order; Section 6AAA declaration: 2 years’ imprisonment with a non-parole period of 14 months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper (For Plea) Mr S. Davison (For Sentence)	Solicitor for the Director of Public Prosecutions
For the Accused	Ms K. Kothrakis (For Plea) Ms I. Skaburskis (For Sentence)	Doogue and George

HIS HONOUR: 

1Alop Patel, you have pleaded guilty to one charge of obtaining a financial advantage by deception, an offence that carries a maximum penalty of ten years' imprisonment.

2The charge you have pleaded guilty to is a rolled up count representing
14 instances of dishonestly obtaining funds from your employer over an
18 month period.

3In 2014 you commenced employment with Best Friends Pty Ltd, a pet care company with around 600 employees. You were employed as the payroll manager. You were the only person employed by the company to manage the payroll.

4Over the period 17 June 2015 until 14 December 2016 you initiated a total of 14 fraudulent payments from Best Friends Pty Ltd into your Commonwealth Bank account. The payments were made on the payroll system in the form of three bonuses to yourself, which were paid to your own account, and
11 purported payments to ex-employees, which were also paid to your own account.  None of these payments were authorised by or known to Best Friends Pty Ltd.

5The amounts obtained by you ranged from $5000 to $24,000. The total financial advantage obtained by deception was approximately $127,000. This is a brief summary of your offending only. A more detailed summary of your offending is contained in the Prosecution Opening, Exhibit A.

6Your offending was discovered by one of the proprietors of the business when conducting a business report. Discrepancies in the payroll history were investigated further and your deceit was identified.

7The matter was reported to police on 19 January 2017 and your employment was terminated on 31 January 2017. You were arrested at your home address and interviewed at Glen Waverley Police Station on 31 January. You made full admissions to the offending and stated that you took the money in order to pay debts relating to two failed business ventures that you had started in Sydney, namely a juice bar and an Indian restaurant.

8During the interview you accepted that your actions constituted a serious breach of trust between yourself and your employer. It is accepted by the prosecution that you appeared genuinely remorseful for your actions during your interview. You stated that you wished to repay your employer the money that you had obtained. You have in fact done so. Full restitution has been made.

9The restitution made by you is an important factor in this case. You commenced payments in restitution at an early stage after being interviewed, in February 2017 in fact, so about a month after your interview. You have made restitution by means of a combination of personal loans, together with borrowing money from family overseas.

Background to Offending

10You came to Melbourne from Sydney in 2013.  In 2014 you commenced employment at Best Friends Pty Ltd. It seems that from the time of the commencement of your employment in 2014 until the middle of 2015 you performed your duties as payroll manager without incident.

11I am told by Ms Kothrakis, solicitor, who appeared on your behalf, that in August 2014 you embarked upon a business venture with a friend from Sydney.
Ms Kothrakis said that it had always been a dream of yours to start a business and the business that you pursued was a juice bar.  I am told you signed a five-year lease in November 2014 in relation to the business and that you and your partner each contributed the sum of approximately $75,000 to cover start-up costs for the running of the business.

12There was an expectation that the business would be successful, of course, however, it was not long before the business was losing $10,000 a month.
Ms Kothrakis referred to some documentation which supported the demise of the business and the losses incurred, particularly in relation to rent. I accept the history provided. It is reasonable to accept that the commencement of your offending in this matter coincided with the accrual of the mounting debts in the juice bar business.

13You and your partner endeavoured to terminate the lease. You both determined that a second source of income in the form of a different business would be a good idea. An opportunity arose to take over an Indian restaurant in a shopping centre, again in Sydney. The opportunity included a fit-out for the premises that was in the vicinity of $30,000 and was to be incurred by the shopping centre.

14You formed the view that with an injection of $30,000 the improved fit-out of the restaurant would attract customers and you would see a profit. It was envisaged by you that the cash flow from that business would assist with establishing the juice bar. Needless to say the venture did not work out. I am told that another shopping centre opened nearby that finished renovations to its food court which affected your business. In summary, by April 2016 both businesses were in arrears in rent. You surrendered the juice bar. The restaurant continued for a further period of time before reality set in. You and your business partner had to repay the $30,000 fit-out cost when you terminated the lease.

15I accept that you were completely overwhelmed by these financial pressures. Ms Kothrakis submitted on your behalf that you were, "blinded to the level of criminality you were engaging in". I do not accept this.

16I am prepared to accept, however, that you were under considerable financial stress and strain and that these factors led to you acting in a grossly dishonest fashion that was otherwise out of character. At the same time I consider your repeated acts of dishonesty and the serious breach of trust you engaged in, to be at a significant level. On no less than 14 occasions over an 18 month period you obtained by deception payments in the vicinity of $5000, $6000, $8000, $9000, $10,000 $15,000 and $24,000.

17On each occasion you obtained these sums you were aware of how serious your actions were. The offending was not sophisticated, you used your own bank details, nevertheless you no doubt felt that you had avoided detection for these deceptions over an extended period of time.

18The most obvious serious feature of your offending is that it constitutes a breach of trust. Your offending does not fall within the most serious category of embezzlements, but nonetheless it is serious offending. Employers must be able to conduct their business trusting those that they have employed to be honest, particularly where matters of payroll and so on are concerned.

19In the absence of a number of mitigating factors in your case you could expect to be sentenced to a term of imprisonment for your offending. I do accept however, as has the prosecution, a range of important matters in mitigation.

Personal Circumstances

20Turning to your personal circumstances, I take into account your personal circumstances. You are 32 years of age. You were born in India, the only child to your father, who worked as a textile designer, and your mother, who was a housewife.  I am told you were raised in a strict household although it was a happy one.

21You were a conscientious student and performed well in your studies. After completing high school you completed a double degree in Bachelor of Engineering and Electronics, and Communication.

22You came to Australia in 2007. You did not know anyone here when you first arrived. You completed a Masters in Science, Telecommunications and Project Management at the University of Technology in Sydney. At that time you were living in a five person share house along with other students. It was through these connections that you first managed to get a job in payroll, initially as part-time work whilst studying. I am told you enjoyed the work and decided to stay in that field, rather than your fields of study, and became an expert in the PayGlobal payroll system, hence you were able to obtain the position of trust that you abused through 2015 and 2016.

23In 2011 you married your wife, Roshina, and the two of you have a three year old daughter.  A more detailed summary of your personal circumstances can be found in the Outline of Submissions (Exhibit 1), tendered on the plea, and the report of Dr Barth (Exhibit 2), that was also tendered on your behalf.

Plea of Guilty

24Your plea of guilty was described as being entered at an early opportunity. I take the saving to the community as a result of your plea of guilty, thus avoiding a trial, into account. I also accept your plea of guilty is indicative of remorse.

Remorse and Restitution

25You made full admissions to police and it was stated in the prosecution opening that you appeared ‘genuinely remorseful’ for your actions in that interview. I accept that.

26Your remorse has been expressed in other ways also. In particular, you have made full restitution. You have done so by taking out personal loans as well as borrowing money from relatives overseas. Ms Kothrakis acknowledged the paradox of you now borrowing funds to make restitution when you could have borrowed previously in order to service your business debts, rather than engage in serious criminality. Nevertheless, making full restitution is a significant matter. It is a matter that attracts mitigation beyond the finding of remorse.

27Once you had paid restitution in full you sent an email to one of the proprietors of the business you stole from. The email was sent around August 2017. You advised her that you had made full restitution and that although at least half of the restitution payments had been made to the company’s insurance company, you wanted to advise her of the fact of restitution and take the opportunity to say sorry for your actions.

28I accept that that apology was genuine and that you felt considerable shame and remorse as a result of this matter. Those sentiments are echoed in the report of Dr Barth, Exhibit 2, at paragraph 19.

Prospects of Rehabilitation

29The genuine remorse you have expressed and the shame you no doubt feel support a view that your prospects of rehabilitation are reasonable. Your level of education, your work history, your early plea of guilty, your lack of criminal history and your good character whilst on bail, your family support, and importantly, the fact of restitution are all matters I take into account in finding that you have reasonable prospects of rehabilitation.

Sentencing Purposes

30In sentencing you I take into account the need to denounce your conduct, to punish you appropriately and to deter you from committing further offences. I must also take into account general deterrence and the protection of the community as well as your rehabilitation. In a case of this kind general deterrence is a factor carrying significant weight.

31In giving appropriate weight to each of these factors I am persuaded that the purposes for which the sentence must be imposed can be achieved by a sentence that does not involve your confinement in prison.

32It was submitted by the Prosecutor, Mr Roper, that a Community Corrections Order was within range in your case and was an appropriate disposition to satisfy the sentencing factors already referred to.

33This submission was supported by the helpful list of comparable cases provided by Ms Kothrakis in Annexure A of Exhibit 1.

34You have been assessed as suitable for a community corrections order. Your general risk of reoffending has been assessed as low.  Stand up, please,
Mr Patel.

Sentence

35I sentence you as follows: On the Charge of Obtaining a Financial Advantage by Deception I make a community corrections order for a period of three years.   I make a condition of that order that you perform 300 hours of unpaid community work. That community corrections order is made with conviction.

Pursuant to s.6AAA of the Sentencing Act 1991, I declare that were it not for your plea of guilty I would have imposed a sentence of two years' imprisonment and directed that you serve a non-parole period of 14 months.

36An application has been made for a forensic sample by way of a buccal swab, pursuant to s.464ZF of the Crimes Act 1958. That application is consented to by you. I make the order due to the seriousness of the offence and the sum involved. Mr Patel, it has probably been explained to you that for a community corrections order you must consent to the order. Do you consent to the order being made?

37ACCUSED:  Yes.

38HIS HONOUR:  I will now ask my associate to show you the order and invite you to sign it.  Do you understand the order?

39ACCUSED:  Yes.

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