Director of Public Prosecutions v Peirce

[2018] VCC 1571

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-00678

DIRECTOR OF PUBLIC PROSECUTIONS

v

CAROL PEIRCE

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	15 & 21 August & 20 September 2018
DATE OF SENTENCE:	21 September 2018
CASE MAY BE CITED AS:	DPP v Peirce
MEDIUM NEUTRAL CITATION:	[2018] VCC 1571

REASONS FOR SENTENCE
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Subject:  Sentencing

Catchwords:  Plea of guilty; theft from employer of $609,341; financial controller/book-keeper; gambling complex PTSD condition; no prior offending; relevant subsequent offending.

Legislation Cited:  Sentencing Act 1991 s.6AAA

Cases Cited:R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; DPP v Felton [2007] VSCA 65

Sentence:TES 2 years, 5 months imprisonment – 21 months suspended for an operational period of 3 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Sim	OPP
For the Accused	Mr S. Tovey with Ms J. Fayman	Fayman Lawyers

HER HONOUR: 

1Carol Peirce, you have pleaded guilty to two charges of theft.  The maximum penalty for each such charge is ten years' imprisonment. 

2Both charges arose out of the same background of your employment as a financial controller and bookkeeper for a company called MACT (Vic) Pty Ltd which runs a business of installation, servicing, and repair of commercial air-conditioning and refrigeration units.  You commenced on a casual basis, and from 3 November 2010 were employed on a permanent full-time basis as a financial controller at an annual salary of $68,000.  Part of your duties included providing financial reports to MACT's directors, and also doing the payroll, payment of wages, reconciliation of suppliers and their payment.  You had full access to MACT's bank accounts in this role.  You also performed the same duties for a related company which was based in New South Wales called MACT Pty Ltd.  The two companies had overlapping ownership and directorships.  Your salary was, as I understand it, paid by MACT (Vic) Pty Ltd.  It was paid into a Westpac bank account in your name from a Westpac bank account of MACT (Vic) Pty Ltd.

3On or about 23 December 2010, which was about seven weeks after you were appointed permanently to the financial controller position, you first transferred funds from your employer's bank account into your own bank account.  Over the following 26 months, you made a total of 172 fraudulent payments from MACT (Vic)'s bank account, all but three of which were directly into your own bank account.  The vast majority, 158 payments totalling over $500,000, were disguised by being entered as payments to a purported creditor which you had invented, called A&M Electrical.  However, the bank account for that supposed business was yours. There was also a payment into a bank account of solicitors but this was for your benefit, one of $26,000 into a bank account of a person from whom you had bought a car (that was in July 2012), and a BPAY payment of $12,000 in November 2012 to a finance company.  The total of fraudulent payments the subject of Charge 1 is $591,307.63. 

4From 9 January 2012 to 7 December 2012, you also made six fraudulent payments from the New South Wales company's bank account into your own bank account, all purportedly to A&M Electrical.  These totalled $18,033.37 and are the subject of Charge 2.

5None of the payments described was authorised by either your direct employer or its related New South Wales company.  The total stolen from the two companies by you was $609,341. 

6These matters came to light in mid-March 2013 when you were on sick leave to undergo surgery.  During that period, the managing director of your employer, Mr Kennedy, went through the accounts as he was trying to assess the company's profitability, and in doing so he found the payments to a supplier called A&M Electrical with which he was not familiar.  He asked to see some of the invoices of A&M Electrical.  The office assistant he asked to produce them was your daughter who worked part-time at the company.  When she could not find any such invoices, she asked you, and you offered to come into the office but Mr Kennedy told you not to come as you had just had an operation.

7Two days later, you sent him a text message effectively confessing to taking the money.  You apologised for what you called the “loss of company funds”, said you were “wracked with shame”, and said you would repay the money.  You said medical expenses and other debts owed were becoming impossible and you had acted under the belief you were dying from cancer and only had a short time to live.  You called it the lowest part of your life, and said you always intended for it to be repaid from access to your superannuation fund which you expected to obtain as you believed you were terminally ill.

8Three days later, Mr Kennedy replied telling you to make up a detailed list of all the moneys stolen and to email it to him.  He also asked for return of your keys, company credit card and online code advice, and your employment was effectively terminated by that date.  You responded saying that you had put $600 into the company's bank account, and it was your intention to repay all the money when you were physically able to make arrangements to start selling items.  You asked for some time to do that.  You were shocked at the figure that he had given your daughter.

9Mr Kennedy then went through the company's accounts from March 2012, discovering that large amounts of money had been transferred supposedly into a bank account in the name of A&M Electrical, but it had the same numbers as your own account.  On contacting his bank for bank statements and going through those, he discovered that the fraudulent deposits into your account had commenced from December 2010.

10On 24 April 2013, Mr Kennedy contacted police to report the matter, and in July 2013 provided police with bank statements and a spreadsheet of the payments. 

11On 8 November 2013, police attended your home with a search warrant, seizing a number of documents, receipts, a computer and documents linking you to gambling venues.  They also found a number of items including ceramic dolls about which I will say more later.

12You were arrested and interviewed.  You were cooperative with police.  You said that you had a lot of depression during the period of offending.  You called it delusional in that you did not feel that you were paying yourself as you were depositing the money into the name of another company.  You thought the amount stolen was around $30,000, but agreed that you had paid $26,000 in one payment in July 2012 to purchase a car.  You said you were using the money you stole to go gambling every day, as you had no one at home, that you were very lonely and depressed, and going to gambling venues where you would meet people to talk to, and you would not think about how much money you were gambling. 

13You said you had also used stolen money to purchase a collection of porcelain dolls, which was something your mother had collected.  You had about 20 dolls that you said had cost about $700 to $1000 each.  You had also purchased three vehicles using the funds you had stolen, including the one purchased for $26,000, and two others purchased on eBay. 

14You told police you had created the false company name A&M Electrical essentially by accident as you had misheard a technician over the phone.  You entered the payments as being to A&M Electrical in part for you to be able to recognise the payments made in this way.  You said you had thought that when you returned from surgery, you would be able to sort things out and repay the money which you say you thought was in the region of $30,000, not the much larger amounts about which you were questioned.

15In relation to your gambling, you estimated that you had spent up to $1000 a day at pokie venues, and that being at those gave you companionship.  You told police that you had been renting your home but had also lived out of a car for a period of about six months.  You said you had purchased items on eBay every other day, and felt that bidding for items on eBay was a form of gambling. 

16A few days after interviewing you, police executed a search warrant at a storage unit you rented and found furniture items that were believed to be purchased from the funds you had stolen. 

17Notwithstanding that you had admitted to this offending when interviewed on 8 November 2013, if not admitting to the exact total, it was not until more than four years later, on 12 December 2017, that charges were laid and served on you.  Shortly after that, you appeared at Melbourne Magistrates' Court for a filing hearing and then a committal mention.  The matter resolved with you indicating a plea of guilty soon afterwards.  You have been on bail throughout this time and have not spent any time in custody until I remanded you yesterday.

18I have read a Victim Impact Statement from Mr Kennedy, the managing director of MACT (Vic) Pty Ltd.  I accept that your thefts from his business have had very considerable impact on him personally, on the business and ultimately on many other employees at the business.  He says the company had to significantly downsize its business due to lack of capital and cash flow, and a very large reduction in the number of employees was made.  I do not know whether all of that downsizing was due to the amounts you stole so I make no finding about that, but I do find that what you stole was a sum likely to have had very considerable detrimental impact on a business of the approximate size that I take this company to have been by the description of the numbers of employees.

19I am also satisfied that these events had considerable impact on Mr Kennedy personally, both financially and also as a reaction to finding that his trust had been breached.  He has apparently been fighting serious illness for the last two years, and is conscious that he cannot retire as early as he might have been able to spend time with his family. 

20I must assess both the objective seriousness of this offending and your culpability or blameworthiness for it.  The maximum penalty of ten years' imprisonment for a charge of theft covers a very wide range of possible offending.  For example, from the theft of an apple or a pack of nappies, to multi-millions of dollars with carefully pre-planning and elaborate arrangements to disguise it.  In this case, the total stolen of more than $600,000, occurring over a period of more than two years, consisting of 178 separate dishonest acts, and commencing in the month after your permanent appointment to the position and continuing until discovered, places this example of theft well into and towards the top of the mid-range for offending of this type.  That it was committed against an employer was a clear breach of trust which makes it more serious, and in the context of what I take to have been a medium-size business had the real prospect of undermining the financial viability of the business not only for the owners but with implications for other employees who used to be your workmates. While there was no sophisticated concealment in that the majority of payments were made directly into a bank account that was the same as the one into which your wages were paid, there was some deception by use of the invented name, A&M Electrical, as a supposed supplier. 

21Stealing this money for gambling, or to buy items to satisfy your somewhat compulsive personal pursuits, does not excuse your offending.  I do take it into account as putting the offending into some context in that these were not thefts to satisfy a grossly indulgent or opulent lifestyle, but to meet what I have described as compulsive or obsessive needs you had developed. 

22Even though you told both Mr Kennedy and the police that you intended to repay the money you had dishonestly taken, I have difficulty believing that, and do not find it likely that you thought that the total taken was no more than about $30,000 when you knew that one payment alone was of $26,000 for a car.  Even taking into account that you seem to have developed unrealistic thoughts about many matters including your purchases and the taking of this money,  you were intelligent enough to make the entries and payments which you did, and as a bookkeeper you must have had a better idea of the arithmetic than to truly deceive yourself that the total taken was as low as $30,000.

23To steal from an employer is not only a betrayal of the trust placed in you by that employer generally, and specifically having been given access to the business' bank accounts, but you obviously knew and worked with the managing director.  In my view, that makes more serious your culpability than had the thefts been committed in the much more impersonal environment of a large public company or institution, as the betrayal was personal as well as to the business and to fellow employees there.

24In my view, the amount of money stolen, the sustained dishonesty and multiple acts over a period of more than two years, and the betrayal of the trust of the employer and fellow employees, places this example of stealing at the upper end of the mid-range for possible thefts, and requires a sentence to reflect general deterrence, denunciation and just punishment.  As I shall explain later, to a lesser degree I also consider specific deterrence to be a necessary sentencing purpose.

25You have pleaded guilty to these charges and are entitled to some leniency for that.  I accept that you effectively made admissions when first confronted by the discovery that there had been some thefts, well before the full extent was known, and you were cooperative with police from when first interviewed some seven to eight months later.  Your cooperation and admissions would have overcome the need for extensive forensic examination to reconcile all payments and documentation dealing with the amounts stolen. 

26You indicated a plea of guilty at an early stage after charges were in fact laid.  The plea of guilty has the utilitarian value of avoiding the time and cost of disputed hearings, and as I say, there could have been lengthy hearings if all payments had to be proven.  By your plea, you accept responsibility for your offending.  I also accept in this case that by your plea of guilty - and indeed, the immediate response to Mr Kennedy although some of what you put in that text was somewhat illogical in timing - that you have felt genuine regret for the offending and for its impact on the company, the company's employees and Mr Kennedy. I have decided on significant leniency in this case for these features of your plea of guilty, and shall tell you later what your sentence would have been had you not pleaded guilty.

27The prosecution acknowledges that there was significant delay between discovery of your offending and charges being brought.  Indeed, it was more than four years after you were interviewed by police, and that was seven to eight months after Mr Kennedy made the discovery and you acknowledged that you had been taking money dishonestly.  It is understandable that some time passed in Mr Kennedy having to check bank statements and reconciling amounts, and more months in police obtaining and needing to read and analyse documents.  But there is no satisfactory explanation for the four years that passed after your interview.

28When there is delay between the discovery of offending and charges coming before a court, there must be consideration of the effect of that delay on the offender, and some leniency in the sentence is usually warranted to reflect if the delay has been burdensome, and also what use has been made by the offender of the intervening time.  I have taken into account that this very long delay has meant that you have had the stress and uncertainty of likely criminal charges and punishment hanging over you for a very extended period, and given that you clearly needed psychological support soon after the discovery, and your complex underlying psychological problems about which I will speak shortly, the delay will have been even more difficult for you.

29On the other hand, it cannot be said that you used the entire period since discovery to show that you had reformed, because you did commit similar offending when you obtained new employment in 2014.  Nevertheless, since June 2015 you have apparently completed a Community Corrections Order which included a substantial portion of unpaid community work, as well as rehabilitation as directed, and I accept that in these last three years you have shown positive signs of rehabilitation and have not committed any further offences. 

30I have therefore moderated your sentence for both of these reasons:  that is, the stress of the delay and showing more recent signs of rehabilitation.

31I turn now to your personal circumstances.  You are now aged 57.  I am told that you came to Australia from England as a young child with your parents and siblings.  I shall not repeat the very detailed history you gave to Mr Cummins of your childhood and upbringing.  Those details include that your mother was apparently agoraphobic and it fell to you to take a greater than usual role in minding your younger siblings, shopping and with other domestic help.  You described being bullied at school and some very unhappy times there in various ways and without friends most of the time.  You also say that your parents instilled an attitude of not talking about personal problems and that this conditioned you into silence about these.  You also described experiencing several instances of sexual assault, two in childhood and two as an adult, and I accept that those were traumatic incidents for you. 

32You moved out of home at the age of 17 after obtaining employment and to obtain independence from your parents' constraints on you.  You did complete Year 12 at school, and then were employed in retail sales, but over the years learned bookkeeping starting with on-the-job training that you obtained at Avis Car Rentals.

33You have two daughters, both now adults.  They have different fathers.  Your relationship with your elder daughter's father apparently broke down before she was born, and although you were married for a number of years to the father of your younger daughter, that relationship was problematic and ended many years ago.  You formed another relationship which also had various problems at different stages, but you had remained living in the same house with that man as platonic friends for many years.

34Your daughters are now in their 20s, and each has a well-established career and is in a long-term relationship.  I have seen both of them and their partners in court during each of the hearings in this case.  I have read that they told Mr Cummins that they had long felt that you were leading some sort of secret life, keeping secrets from them, and they had perceived you as at times having different personas.  Your older daughter a little earlier than the younger, but both had become aware some years before this offending started that you were gambling quite heavily, and also they were aware of your hoarding behaviours.

35After your offending came to light, both of your daughters distanced themselves from you for some time.  I accept that they were shocked and did not condone what you had been doing.  According to Mr Cummins' report, each of them had re-established contact with you by earlier this year, but I gather that there is still considerable tension between you and them.

36You have been living in a house owned by one of your brothers.  This brother knows about the offending and these charges but your other siblings apparently do not. 

37You had no criminal history before the start of the offending that brings you before this court, so had reached the age of 50 entitled to the description of being of good character.  That generally entitles a person being sentenced to some credit, and certainly in your case indicates that you have not lived a life of entrenched offending or dishonesty, and indeed had apparently lived a responsible and hardworking life, not without its difficulties and traumas. However, unfortunately prior good character carries less importance in a case of this nature because it is often that good character and reputation and lack of prior history of any dishonesty that has led to the employment position where an employer trusts and gives access to financial and bank records, and with that trust, the opportunity for offending.

38There is however some relevant other offending.  First, although you had not faced a court for it before starting stealing from MACT, you had apparently engaged in stealing from another employer some years earlier when your then partner left and you were in financial difficulty.  You told Mr Cummins that in 2011 you went to court for having stolen $7,000 from your then employer, Vilis Cakes and Pies, where you had been an accounts manager for some years.  Although not strictly a prior conviction for purposes here, this apparently came before a court while you were already working for and, it turns out stealing from, MACT and going to court for that earlier offence does not seem to have deterred you from continuing to steal from MACT.

39What is of even more concern in my view is that after being dismissed by MACT and confronted by the enormity of the amount you had stolen from that company or the two companies, and after being interviewed by police for these thefts, after some further time recovering from your physical and mental health conditions, you obtained subsequent employment as a bookkeeper in 2014, and committed very similar offending from that employer although it was discovered much sooner.  You were sentenced to a CCO with substantial hours of community work which you completed, and as I have said have no offending since.

40The fact of the subsequent offending of a similar nature in my view means that the sentencing purpose of specific deterrence - that is, to deter you from any future offending, certainly of this nature - must play some role in your sentence, although I do not give it as much significance as the other sentencing purposes that I have mentioned.

41I have read a lengthy psychological assessment of you by Mr Jeffrey Cummins, prepared apparently both for this case and for prospective psychological treatment of you.  It was based on four consultations with you including two personality tests as well as a further consultation with you by telephone, those totalling about seven hours, as well as spending nearly three hours over two occasions interviewing your daughters with your permission.  I accept that this makes Mr Cummins' opinion in this case likely to be based on much more comprehensive information than occurs in some other cases that come before the court. 

42On the extensive history he took from you, Mr Cummins accepts that you were dealing with a high level of anxiety after coping with first your father dying of cancer, having to deal with your mother and then her death, and with the complexity of dealing with those previous difficult relationships to which I have already referred and the previous traumatic events.  You told Mr Cummins that you went to work to keep you in touch with reality, but were finding it hard to trust anyone and that you had previously started going to the local pokies and got into more gambling around the time of the offending. 

43After you obtained the casual job at MACT, you apparently started buying things on eBay with other ladies there, and you became what you call "hooked" on eBay which you feel was like being hooked on the pokies.  You bought three or more cars from the stolen funds, relating these to feeling close to your late father.  You bought porcelain dolls, claiming that you felt through them a connection with your mother.

44You had undergone some psychological counselling in early 2015, referred by your then general practitioner to Dr Melinda Metaxas whom you found very supportive in sessions with her, but they ceased when she went on maternity leave.  You have resumed sessions with Dr Metaxas this year and have established a good therapeutic relationship with her. In 2012 and 2013, you had apparently been prescribed an antidepressant which you took for approximately six months, but you ceased taking it because of its effects on you.  You were apparently also referred to a psychiatrist, but could not recall the name for Mr Cummins, and to another psychologist, but I gather that during that period you did not establish ongoing trusting relationships for this therapy.

45You told Mr Cummins of having gone through periods of drinking excessive alcohol, some of that coinciding with attending gambling venues.  I accept that you, like many other people who have been before me in this court with histories of heavy gambling, regarded your attendance at such venues as a search for company and social interaction, as a safe and lively environment, and for people who were not judgemental of you for gambling.  Unfortunately, in the course of obtaining those benefits, you like many other people seem to have lost track of the very large amounts of money that you were losing.

46Mr Cummins' diagnosis is that you have been suffering from a complex post-traumatic stress disorder (that indicating multiple post-traumatic stress disorders), and his view is that you are still suffering from that complex post-traumatic stress disorder with associated symptoms of anxiety, depression and identity confusion.  He considered that there was a genuine nexus or connection between your offending behaviour and your mental health problems at the time of the offending.  You were said to be feeling chronically depressed and anxious, you were suffering from low self-esteem, and were regularly attempting to elevate your mood by gambling and by engaging in anxiety-reducing obsessional behaviour including addictively purchasing items via eBay.

47Mr Cummins' view was that your mental health problems were likely to become more entrenched the longer you are incarcerated, as although you have stated that you expect to be punished and intend to seek mental health treatment while in prison, he felt it was most unlikely that you would be offered any one-on-one mental health treatment, apart from crisis treatment if that need were to arise, and unless it is one-on-one treatment, it is unlikely to be optimal for you while you are in prison.

48Mr Cummins also considered that the longer the time you spend in custody, the more difficult it will be for you to face dealing with the real world when you are released, and of course the need to re-establish therapeutic relationships with people treating you. 

49I have also been provided with other reports from the psychologist, and other supporting documentation about treatment over some of this period.

50I accept from the background outlined in Mr Cummins' report and his diagnosis, that it is likely that your complex mental health condition contributed to your offending, not merely in your need to obtain money to satisfy both your gambling and obsessional purchasing behaviours, (and that would not really lower your culpability in itself), but also by removing from you to an extent the reality of what you were doing.  That does not mean that I believe you did not know each time you made a dishonest payment from your employer to yourself or for your benefit, that what you were doing was wrong and dishonest. But I accept that you had for many years previously shown some behaviours consistent with a disconnection from real consequences, and that both in gambling and making purchases such as the porcelain dolls, there were underlying conditions contributing to those obsessions.

51In addition to your mental health, you have a history of some serious physical health problems.  At the time of discovery of this offending, you were on sick leave undergoing surgery for cancer, for which you also underwent ongoing remedial treatment. Fortunately, you ultimately seem to have made good recovery from that condition, and I have no information about any ongoing prospect of recurrence. 

52Since at least 2015, you have been suffering from upper abdominal pain and discomfort, and recently provided medical documents indicate that you have been diagnosed as suffering from spleen and gall bladder conditions.  I am satisfied that you continue to suffer symptoms from those which involve considerable discomfort from time to time.

53Further, you have had spinal, particularly cervical - that is at the neck level – problems for the last couple of years.  It appears that in 2015, symptoms of referred pain and altered sensation in your left arm were diagnosed as likely to be due to cervical degenerative change, particularly stenosis at the C5/6 level.  Over the last year, you have been reviewed for this, and there was prospectively to be surgery carried out earlier this year but that was cancelled due to resignation of the neurosurgeon at Ballarat. You were referred to the Alfred Hospital for neurosurgical assessment of your cervical condition, and I adjourned your case in August when told of an appointment on 3 September.  It seems from the documents with which I was provided for yesterday's resumed hearing that there had been an examination in April of this year, but the guided CT injection that recommended then did not take place. It seems that a further radiological scan - this guided CT scan and injection was carried out on 4 September, and a further consultation has been set for 3 October, although you will not now be able to attend that.  I was specifically requested on your behalf not to delay your sentencing even though that would only have been another week or so. 

54I am satisfied from this material that you are suffering from some pain and sensory symptoms, which are currently being alleviated with medication, and I would trust that appropriate medication will be able to continue whether you are in custody or in the community.  It does not seem that surgery is imminent, nor likely to be recommended urgently, although no doubt on your release from custody, if still suffering the extent of symptoms you have been, you might seek a further assessment. 

55I do not overlook that to serve a sentence of imprisonment with ongoing symptoms from your cervical spinal condition will contribute to making your time in custody more physically uncomfortable and therefore more onerous for you, and I accept that the spleen and gall bladder conditions may also contribute to that from time to time.

56As outlined, I accept that both your mental health and physical health are likely to make imprisonment more onerous for you than such imprisonment would be for a person not suffering from any of those conditions.  I am also satisfied that your psychological conditions are likely to be exacerbated, at least from time to time, while you are in custody and cannot engage with your usual treating professionals.  For both of those reasons, I consider that some moderation in your sentence is required, under what are referred to as the fifth and sixth limbs in Verdins' case.

57I have also taken into account that in your explanations to Mr Cummins, what has necessarily been revealed to your daughters through that process, through the psychological counselling in which you have engaged, and through your attitude in having to face punishment for the consequences of your offending, you do seem to have taken significant steps to address your underlying psychological conditions and in recognising what contributed to this offending.

58I accept that notwithstanding that there was some further stealing from the employer in 2014, there has been no further known offending since then, and that you did continued to strive to obtain work until at least last year.  You have apparently adjusted to using what is available as therapy methods such as the opportunity to use gardening in the house that you have been living in to deal with your anxiety.  I accept that you will need significant support and further psychological treatment on your release from prison. Overall I consider that the last couple of years show that your prospects of rehabilitation are reasonable, given that for 50 years, you maintained yourself through some difficult life circumstances without offending. I regard your ultimate rehabilitation as still of value to the community and therefore a factor to take into account in your sentence.

59I have significantly moderated your sentence for the reasons given, being your early acknowledgement and plea of guilty, the long delay of these charges hanging over you, and the complex mental health conditions which made some contribution to the offending but in particular are likely to make your time in prison more onerous and to be exacerbated while you are there.  Nevertheless as I had already told you on earlier hearing days, I consider that no sentence that does not involve some immediate period of imprisonment would be adequate to satisfy sentencing principles in this case.

60Over the last couple of years started addressing your complex underlying problems and psychological conditions, have apparently ceased gambling, and are intending to pursue psychological counselling on your release.  In those circumstances, I have decided that it is appropriate to partially suspend your sentence.  That is possible because of the age of the offences.  If they had been committed more recently, there would not be the power to suspend the sentence.  It is also because as I said yesterday, I have decided that a sentence not exceeding three years would be sufficient in your case, and therefore it is within the powers of the court to partially suspend the sentence. 

61Although the two charges arise from the same employment background and involve use of the same false creditor's name and occurred in the same period, I am not able to impose an aggregate sentence because each of these charges is a rolled-up charge.[1] There will however be almost entire concurrency as the two offences in my view arose out of the same background although obviously Charge 2 is for a much shorter period and a lesser amount.

[1]DPP v Felton [2007] VSCA 65.

62Would you stand up now please.

63Carol Peirce, on Charge 1, of theft of $591,000 from MACT (Vic) Pty Ltd, you are sentenced to imprisonment for 28 months.

64On Charge 2 of theft of some $18,000 from the New South Wales MACT company, you are sentenced to three months' imprisonment.

65I direct that one month of the sentence on Charge 2 be served cumulatively on the sentence on Charge 1, making a total effective sentence of 29 months' imprisonment or two years and five months.

66I direct that 21 months of that sentence be suspended for a period of three years.  That means that you must serve eight months actually in prison, after which the balance of 21 months of the sentence will be suspended, and you will not have to serve any of that period actually in prison unless you breach the suspended sentence. 

67I must explain what is involved in that.  You will be in breach of the suspended sentence if during the period of three years from today you commit any further offence which could be punished by imprisonment, even if it is unlikely that in its circumstances a court would actually impose a term of imprisonment.  For example, stealing $5 from any person or any business would be theft and as you well know, the charge of theft is punishable by imprisonment even if it arises in circumstances when a court would be unlikely to impose actual imprisonment.  So if you commit any offence during the next three years that could be punished by imprisonment, then you would have breached the suspended sentence and the whole of the suspended 21 months is likely to be required to be restored and served in prison by you, unless exceptional circumstances that arise after today would make it unjust for that sentence to be wholly restored.

68I must ask, do you understand that?

69OFFENDER:  Yes, I do.

70HER HONOUR:  All right.  I declare one day of pre-sentence detention reckoned served and I direct that that be entered in court records.  It will be deducted administratively. 

71I state for the purposes of s.6AAA of the Sentencing Act that if you had not pleaded guilty but had been found guilty after a trial of the totality of this offending, and if all other circumstances including your health conditions had been the same, I would have imposed a sentence of four years' imprisonment and I would have set a non-parole period of two years.

72There are some other orders I was asked to make which I intend to make. I make the forfeiture order that was sought. 

73I was asked to make a compensation order in favour of each of the companies from which you stole those funds and I intend to do that.  They are not opposed.  The only matter I wanted to raise - and I am not sure whether it has been considered - is that Ms Peirce said to Mr Kennedy soon after these matters were discovered that she had made a payment of $600.

74MR TOVEY:  Yes, yes.

75HER HONOUR:  Has that been taken into account in this?

76MR TOVEY:  My understanding is it has.

77HER HONOUR:  It has?

78MR SIM:  Yes, Your Honour.

79HER HONOUR:  All right, as long as it has, I don’t need to inquire further.  I will sign the orders and that means that I will be ordering that Ms Peirce pay to MACT (Vic) Pty Ltd the sum of $590,707.63.

80MR TOVEY:  Yes.

81HER HONOUR:  And I order that Ms Peirce pay to MACT Pty Ltd the sum of $18,033.37.

82MR SIM:  Yes, Your Honour.

83HER HONOUR:  All right.  Now is there anything I've overlooked?

84MR TOVEY:  Just very briefly, Your Honour ‑ ‑ ‑

85HER HONOUR:  Yes.

86MR TOVEY:  Your Honour, I think it might have just been a slip of the tongue when you were speaking of that $600 payment earlier.  Your Honour said $600,000. 

87HER HONOUR:  I had it as $600 in front of me, it certainly was a slip of the tongue.

88MR TOVEY:  I expected that, Your Honour.

89HER HONOUR:  I would have taken a rather different view and I wouldn't be making compensation orders.

90MR TOVEY:  Yes.

91HER HONOUR:  Yes, thank you for correcting that, I'll correct it on the transcript when the ‑ ‑ ‑ 

92MR TOVEY:  And Your Honour was at one stage searching for the name of a particular doctor, that's Dr Metaxas.

93HER HONOUR:  Metaxas.  Thank you.  I will own up to using the dictation system having spoken into a microphone, and what was in front of me simply wasn't that, and I just couldn't quickly recall I'll insert the proper name. I did intend to mention that doctor at the time but I have had to try to decipher some of the words that obviously were not picked up correctly and I hadn't noticed.

94MR TOVEY:  As Your Honour pleases.

95HER HONOUR:  All right.  Have I covered all matters necessary?

96MR TOVEY:  Yes, Your Honour.

97MR SIM:  Yes, Your Honour.

98HER HONOUR:  All right.  I will obviously sign orders as soon as possible given the time of day on a Friday afternoon.  Before I ask for Ms Peirce to be removed from the courtroom, do you want the opportunity for any of her family to talk to her?

99MR TOVEY:  Look, if they could just have a moment after Your Honour leaves the Bench, they would be grateful.

100HER HONOUR:  All right, I will then ask that Ms Peirce just be allowed to remain a few more minutes.  There's not to be physical contact because she's in custody but I'll let the family talk to her if you like.

101MR TOVEY:  Your Honour pleases.

102MR SIM:  As Your Honour pleases.

103HER HONOUR:  And I'll wait out here and sign it off quickly.

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