Director of Public Prosecutions v Philistin
[2015] VCC 1535
•13 November 2015
1Syke
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-15-01126
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LYNNE PHILISTIN |
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JUDGE: | Her Honour Judge Lewitan | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 and 18 September 2015 | |
DATE OF SENTENCE: | 13 November 2015 | |
CASE MAY BE CITED AS: | DPP v Philistin | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1535 | |
REASONS FOR SENTENCE
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Subject: Obtaining finance by deception; theft
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. Hassan | Vaille Anscome Acting Solicitor for Public Prosecutions |
| For the Accused | Mr P. Tiwana | James Dowsley & Associates |
HER HONOUR:
1
Lynne Philistin, you have pleaded guilty before me to two rolled up charges of obtaining financial advantage by deception (charges 1 and 3) and two rolled up charges of theft (charges 2 and 4). The maximum penalty for each charge of obtaining financial advantage by deception is 10 years' imprisonment. The maximum penalty for each charge of theft is 10 years' imprisonment. These offences arise out of your position as a bookkeeper with
Traditional Values Management Ltd (TVM).
2 TVM was a finance company which lent funds to commercial and private borrowers for various purposes, including timeshare property investments and also to finance financial advice packages. You were primarily engaged to administer loans made by TVM.
3 You issued statements, dealt with queries and processed receipts from borrowers. You also maintained the loan book software management system known as ‘Mission’.
4 On 17 December 2009 Geoff Handberg and Brent Morgan of Rogers Reidy Chartered Accountants (the administrators) were appointed as administrators of TVM and were subsequently appointed as liquidators in February 2010.
5 The administrators continued to employ you on a part-time basis. You predominantly worked from home, but attended the business premises of the administrators on an ad-hoc basis. This arrangement continued until March 2014 and you worked an average of 15 to 17 hours per week.
6 In August 2013 Geoff Handberg began to have concerns about the veracity of the information you supplied to his office. The data showed that there was a decreasing rate of recovery from outstanding loans without a corresponding increase in default rates for the loans. He asked his staff to investigate this and these inquiries continued.
7 On 3 March 2014 you confessed the details of your offending to your adult daughter. You subsequently called your husband and confessed to him. On 4 March 2014 you attended the offices of the administrators and made admissions to the offences to the administrators and their solicitor.
8 You provided directions to the administrator’s staff so that they could operate the 'Mission' accounting software and examine the accounting records created and maintained by you. Your employment was terminated. The police were subsequently advised of your offending and commenced an investigation.
The offending
9 The offending occurred in four different ways. The first was using company cheques by filling in your own details as the payee on cheques that loan account holders sent to be deposited into TVM loan accounts (rolled up Charge 1). The second was stealing cash (rolled up charge 2). The third was using false loan accounts (rolled up charge 3) and the fourth was transferring money to your own account (rolled up charge 4).
Charge 1 – Obtaining financial advantage by deception (cheques)
10 On or between 27 January 2004 and 1 May 2007 a cheque was received at TVM from Lawrence and Anne-Marie Basile for $21,000. The cheque had the payee name "TVM" written on it and was given as final payment to be applied to their loan. You took this cheque to the Mornington Branch of the Commonwealth Bank and deposited it into your personal account. The precise date of this transaction cannot be established. To prevent discovery, you made repayments totalling $6,449.72 to Lawrence and Anne-Marie Basile’s loan account with TVM. Lawrence and Anne-Marie Basile did not become aware that their cheque had been misappropriated because they believed they had made final payment on their account and you made sure no further demands for payment were sent to them.
11 On 22 June 2004 a cheque was received at TVM from Bruce and Julie Baker for $20,000. This cheque was received as a final payment to be applied to their loan with TVM. The cheque did not have a payee name written on it. You wrote your name on the cheque and deposited it into your personal bank account. To prevent discovery you made repayments totalling $11,962.12 to Bruce and Julie Baker’s loan account. Bruce and Julie Baker did not become aware that their cheque had been misappropriated because they believed they had made final payment on their account and you made sure no further demands for payment were sent to them.
12 On 17 October 2006 a cheque was received at TVM from Chandra and Veena Kumaran for $20,000. The cheque had the payee name of “TVM” written on it. The cheque was given as a final payment to be applied to Chandra and Veena’s loan account. You took this cheque to the Mornington Branch of the Commonwealth Bank and deposited it into your personal account. To prevent discovery you made repayments totalling $7,261.10 to that loan account. Chandra and Veena Kumaran did not become aware that their cheque had been misappropriated because they believed that they had made final payment on their account and you made sure no further demands for payment were sent to them.
Charge 2 – Theft (Cash)
13 On 27 February 2007 you received cash on behalf of TVM from an unidentified investor. You stole this cash. On the same day a cheque for $12,000 was received from Robert and Laurance Buck as a final payment to be applied to their loan. To cover up the theft of the $6,000 cash, you paid $6,000 from the bank cheque into the unidentified investor’s account and paid the balance of the cheque ($6,000) to the Buck account, leaving yourself with $6,000.
14 On 6 March 2014 you received $10,000 cash on behalf of TVM from an unidentified investor. On the same day a cheque was received at TVM from Christopher and Gayle Sykes for $13,811.58 as final payment to be applied to their loan. You stole the cash and then applied $10,000 from the Sykes’ cheque to the unidentified investor’s account to mask the theft of $10,000 cash. You applied the balance of the cheque ($3,811.58) to the Sykes account. Christopher and Gayle Sykes did not become aware that the full amount of their cheque had not been applied to their loan because they believed that they had made final payment and you made sure no further demands were sent to them.
Charge 3 – Obtaining financial advantage by deception (false loans)
15 This method was the main method of offending. A company called Holiday Concepts Pty Ltd (Holiday Concepts) would market and sell timeshare accommodation to individuals. TVM would potentially offer finance to Holiday Concept clients to pay for the timeshare arrangement.
16 A company called Advantage Direct Finance Pty Ltd (ADF) offered its clients financial advice packages. TVM would potentially offer finance to ADF clients to pay for the financial advice packages.
17 Both Holiday Concepts and ADF would obtain a signed application for a loan from their clients and the application was forwarded to TVM. You processed these loan applications. Your role was to look into an applicant’s income and liabilities, credit history and any available security for a loan. A number of applications failed to meet the criteria for approval and did not proceed. Also, from time to time, loan applicants withdrew their applications pursuant to a “cooling off” period. Loan applications that succeeded in obtaining initial approval were then passed on to your manager for final approval.
18 You presented documentation for your manager to sign in order to complete the approval process. This was normally done in a batch, so that numerous loans were authorised in one document called the batch approval document. You were responsible for notifying Holiday Concepts and ADF of the loan approval. You would set up the loan account on the ‘Mission’ accounting software and compile monthly statements to the loan account holders.
19 You offended by submitting loans for approval that were in fact not proceeding. You would notify Holiday Concepts or ADF that the loan was not approved and would not be proceeding but you would insert the details of the loans that were not proceeding onto a batch approval document amongst details of loans that were proceeding. You would present the batch approval document to your manager for her signature to approve the loans on the document. Your manager would sign this document without checking the contents. In this manner you deceived your manager into authorising loans that your manager never intended to authorise.
20 Once a fraudulent loan was authorised, you would create a loan account on the accounting software as well as a hard copy account file. The hard copy file would resemble a legitimate file, as would the entry on the software. You would use TVM’s bank account to transfer funds designated for the false loans into your own account.
21 You were able to conceal the false accounts you had created in a number of different ways. First you made semi-regular small deposits of cash into these accounts. You would use funds stolen as part of your offending to make these deposits. You made over-the-counter bank cash deposits into loan accounts. You transferred money from your personal bank accounts into the loan accounts using internet banking. Further you created false correspondence and periodic loan statements that you placed in the hard copy loan file to give the appearance of a legitimate loan. The correspondence was never actually sent to the addressee.
22 You were also responsible for compiling the monthly arrears report. This report was relied upon by management to assess the status of the loan book and take action with regard to unpaid loans when appropriate. You falsified details on this report to conceal your offending.
23 You also reactivated closed loan accounts. These accounts had been closed after the borrower had paid back the full amount borrowed. In the ‘Mission’ accounting software, you put these accounts into a negative balance and transferred the funds from these accounts into the fraudulent accounts you had created, giving the impression of ongoing repayments. Although no monies were in fact paid, the appearance of payments being made on the fraudulent loans was achieved.
24 Charge 3 is a rolled up charge that you dishonestly obtained for yourself a financial advantage namely cash in the total sum of $1,019,555.00 between 13 April 2004 and September 2008 by these methods. You created 60 separate false loans and the dates and amounts are set out in Schedule C of the prosecution opening which has been tendered as exhibit A.
Charge 4 – Theft (Transferred Funds)
25 On 13 March 2008 you transferred $199 from the accounts of TVM to your personal bank account utilising TVM’s online banking system. You did this without authorisation. You did not enter this transaction onto the Mission system.
26 Again on 20 March 2008 you, without authorisation, transferred $3,145.18 from the accounts of TVM to your personal bank account utilising TVM’s online banking. You masked this transaction by creating an entry in the software, that described this transaction as a payment to the Tumbarumba Shire Council from Account 22888 – Alma Securities Pty Ltd.
27 On 27 April 2009 you, without authorisation, transferred $491.65 from the accounts of TVM to your personal bank account utilising TVM’s online banking. You masked this transaction by creating two false entries on the software that described the transaction as a payment of $280 to account 23518 in the name of Anthony and Carolyn Adams and $211.65 to account 23390 in the name of Michael and Robyn Bishop.
28 In total between 27 January 2004 and 27 April 2009 you either stole or dishonestly obtained by deception $1,100,391.63 of funds belonging to TVM. You made repayments of $242,829.83 to the loan accounts you had defrauded to avoid your offending being detected. You retained $857,561.80 of the stolen funds. This money has not been recovered. You do not own any property or significant assets. An extensive search with all major banking institutions in Australia has not located any significant cash amounts held by you. You were declared bankrupt on 21 March 2014 and were placed on the Australian Financial Security Authority, National Personal Insolvency Index.
Arrest and interview
29 At the request of the investigators, you attended the offices of the Fraud and Extortion Squad on 26 March 2014 where you were arrested and interviewed. During that interview you made full and frank admissions in relation to your offending. You disclosed your offending with regard to the ADF loans for the first time during that interview.
30 You assisted investigators by detailing the precise methodology of your offending. Your admissions have been corroborated by financial documents examined by the investigator.
31 You told the police that you started working for the administrators for two reasons: First, because you wanted to work but the more important reason was to manipulate the system to cover what had happened. When it became evident that the liquidators would discover what you had done, you called your daughter and told her and other family members that you had gambled in various places in Mornington, the Rosebud Hotel and the Rosebud RSL. You gambled anything from $200 to $1000 per day and bought many Tattslotto tickets. You told the police that gambling was now no longer a problem. You spent all of the money stolen on gambling and also for paying for your father’s funeral.
32 Your employer is not seeking a compensation order in this matter because you are bankrupt. TVM is currently in liquidation and various civil claims have been filed by the liquidator against the auditors and accountants who failed for many years to uncover your offending. The Crown accepts that the liquidation of TVM was caused by many factors and it cannot be said that your offending was the sole cause of the liquidation.
33 The facts in this case are very serious. Your behaviour was calculated and manipulative. The aggravating aspects include the gross breach of trust involved. The offending occurred over a protracted period of about five years. It involved a systematic taking of money and you went to great lengths to conceal your crimes. There were some 68 transactions involving a significant amount of money. Although the prosecution concedes that your offending was not the sole cause of the liquidation, your offending has had extensive financial repercussions and has given rise to civil claims filed by the liquidators against TVM’s auditors and accountants.
34 As has been pointed out by your counsel, there are, however, some mitigating factors. You have pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea, been spared the time and cost of a trial. Witnesses have been spared the ordeal of giving evidence upon your trial. Further, I take it into account in your favour that you intimated your intention to plead guilty to these charges at the earliest opportunity.
35 The prosecutor conceded that the utilitarian benefit of the plea was powerful. If the matter had proceeded by full hand-up brief, it would have been necessary to take over 200 witness statements from witnesses located throughout Australia. It would have been necessary to log, copy and record in excess of 500 exhibits in the hand-up brief. The prosecution estimates that over six months of the investigator’s time was saved by the acceptance of the plea brief. I accept your counsel’s submission that your cooperation has led to a very significant saving of police time and resources. In the circumstances I accept that your cooperation with the police and your pleas of guilty demonstrate a desire to facilitate the course of justice and indicate remorse for your actions and is highly relevant in evaluating the weight to be accorded to specific deterrence.
36 Your counsel submitted that your voluntary disclosure of guilt deserved significant credit in order to encourage others to make like admissions. He referred to R v Doran[1] . In that case Buchanan JA with whom Eames and Nettle JJA agreed, said[2]:
"Most importantly, however, the appellant quite voluntarily, without any pressure from any authorities, provided the prosecution with all the evidence necessary to convict him of the majority of the crimes. In my view, the consequences of the appellant’s admissions are that they reduce the need for a sentence to personally deter the appellant, they increase the prospects of his successful rehabilitation and they demonstrate genuine remorse for his actions. I would add that I think it important that the appellant should receive a demonstrable discount in his sentence in order to encourage others to make like admissions."
[1] [2005] VSCA 271.
[2] Ibid [14].
37 The prosecutor submitted that the added element of leniency required by a Doran discount was not called for because the offending would have been detected. The prosecutor submitted that the offending stopped because TVM went into administration and liquidation. Once the company started having difficulty, there was no more new lending and it became difficult for you to cover your tracks. That is when your ability to offend ceased.[3]
[3] Transcript p 76.
38 Doran was considered by the Court of Appeal in JBM v R[4]. In that case Weinberg JA stated:
[4] [2013] VSCA 69 [43].
"It may be correct that the appellant did not, in this case, tell the police anything that they did not already suspect. However, it is one thing to have been told by a child of three about something that may have happened. It is altogether another to be able to make any forensic use of such information. The appellant completed the picture. Indeed, he drew it. He did so voluntarily, and without any prevarication on his part. That, of itself, entitled him to a significant discount, greater than that which would be accorded to a plea of guilty.
The point can be illustrated by reference to DPP v CPD[5]. That was not a case where:
The offender had come forward voluntarily to disclose offences which would otherwise have been unknown. Rather, CPD made admissions only after being required by police to attend for a formal interview and to respond to the serious allegations which the victims had made in their VATE interviews.
This Court nevertheless held that CPD’s admissions and his pleas of guilty ‘entitled him to a significant sentencing discount', though, not, in the circumstances, a ‘really big discount’ of at least 50 per cent."
[5] (2009)_ 22 VR 533.
39
In this case you provided the investigating authorities with all of the evidence necessary to convict you. As stated by Weinberg JA in JBM , public policy demands that you receive a significant reduction in any sentence that might otherwise have been imposed. “Offenders should be encouraged, as far as practicable, to admit their crimes and, in so doing, ensure that they can be successfully prosecuted.”[6] I accept your counsel’s submission that you are entitled to a significant discount for your plea of guilty and substantial
co-operation with the relevant authorities investigating the commission of your offences.
[6] Ibid [48],
40 I accept your counsel’s submission that your confessions to your family and then to your employer also demonstrate remorse. You also expressed your remorse to your friends and family members. In his report dated 28 August 2014[7] your counsellor, Mr Paul Thompson, stated:
"Not once in the time that I have known Lynne has she tried to back away from her behaviour, blame someone else or failed to take responsibility."
[7] Exhibit 2.
41 I have been told something of your personal history and your circumstances. You were born near Aberdeen in Scotland on 3 February 1961 and are now 54 years old. You were an only child. You moved to Sydney when you were six years old. Your father worked as a carpenter. Your mother and father were heavy gamblers. You would often spend the evening at home on your own after school because your parents went gambling. As you grew older, your parents would leave you alone for the entire weekend.
42 You were exposed to gambling at a young age. Your parents took you to the “Pokies” when you were 14 years old. Your father owned greyhounds and you accompanied him to races. You saw your parents win money and also saw them lose it. Having seen your parents gamble, you began gambling when you turned 18.
43 Your father passed away in 2006 due to a hospital procedure which went wrong. Your mother worked in a factory assembling washing machine parts. She is now 76 years old and lives in New South Wales. Whilst you now keep in touch with your mother, you received no real support from your mother when you told her about your offending.
44 You met your husband when you were 20 years old. You married in May 1992 and have been together for 33 years apart from a traumatic period of 12 months when you and your husband separated in 2000 to 2001. You have three adult children and are a close-knit family. Your eldest is married and 30 years old. Your younger children are 27 and 24 years old and still live at home.
45 You were involved in a serious road traffic accident in 1995. You sustained a fractured back and as a result of that accident you were in hospital for 10 weeks. After you were discharged from hospital, you had to wear a special moulded brace for six months. You underwent physiotherapy twice a week. You took painkillers and received treatment from a chiropractor over many years.[8] The accident left you with chronic pain. You put on a lot of weight and suffered a deterioration in your self-image. You still suffer from back pain and require help to get out of bed some mornings because you are so stiff. You take painkillers during the course of the day. You have attended a myotherapist once or twice a week since September last year.[9]
[8] Exhibit 3.
[9] Exhibit 10.
46 You have always worked hard. You left school halfway through year 11 when you were 16 years old and commenced employment with the Commonwealth Bank in Sydney. You began as a customer supervisor and became a teller in 1992 and worked as a relief manager at the Mornington Peninsula branches until your voluntary redundancy in August 1994. After you left that employment which you held for 17 years, you undertook and completed a three-year diploma in business accounting on a full-time basis at TAFE. During that time you worked part time as a bookkeeper for Mornington Trimming Services. After you completed your diploma, you worked at the Blairgowrie Yacht squadron for four years. You commenced working for TVM in 2002 and remained until your confession in March 2014 to these offences. Since then you have been working for your son-in-law and your daughter assisting in their café business primarily as a bookkeeper but also in general work.
47 You have a close bond with your children and have been involved in their schooling and extracurricular activities. You have volunteered at your son’s football club and have served as a timekeeper for 14 years. The relationship you shared with your children has been maintained with your two granddaughters.
48 Your husband Michael Philistin and your children Alison, Nicole and her son Scott, your sister-in law and her husband Lorrie Leslie, your daughter Carrie Toole and her husband Phil Toole were present in Court to support you. I take into account the references by your husband Michael Philistin[10], a reference by your daughter Alison Tetlow[11], a reference by your sister-in-law Michele Horsfall [12], a reference by your sister-in law Diane Lesley [13] and references by your friends Cheryl Tetlow[14] and Kerrie Toull.[15]
[10] Exhbit 4.
[11] Exhibit 5.
[12] Exhibit 6.,
[13] Exhibit 7.
[14] Exhibit 8.
[15] Exhibit 9.
49 After the separation from your husband in 2000 to 2001, the family house was sold and the money was put into your bank account. The money was readily available to you and you began accessing the money to put towards the gambling. You went to bingo and attended pokies venues. You would gamble during lunch breaks and in a period of a year or a bit longer, all your savings of $100,000 had gone. You were extremely upset and petrified about your husband’s reaction and were afraid that he would leave you again. At the time you were working in a job where you handled large sums of money. You believed that you could recoup the $100,000 if you took money from your employer and that you would replace the lost money.
50 You have no prior convictions. I sentence you as a person of previous good character. I accept that prior to this matter your general reputation within the community was good. You have been a volunteer at several community and sporting clubs.
Rehabilitation
51 The prosecution accepted your counsel’s submission that you have not offended since 2009 and that this should be taken into account in your favour in assessing your prospects of rehabilitation.
52 I am, on balance, satisfied that the chances of your rehabilitation are reasonably good. As I have previously stated, you have the support of your family. You attended Gamblers Help Southern for problem gambling between 9 April 2014 and 26 August 2015. Your therapist, Paul Thompson stated that you had not gambled for two years and had made substantial progress. In his report dated 28 August 2015[16], Paul Thompson stated that “work of this nature is long term” and recommended that you resume working with a therapist at the earliest opportunity.
[16] Exhibit 2.
53 However, as well as those matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this. I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending. I am called upon by the Sentencing Act 1991 to manifest the community's denunciation of your conduct and generally to impose a just punishment.
Application of the principles stated in R v Verdins[17]
[17] (2007) 16 VR 269.
54 A report by Dr Aaron Cunningham dated 4 September 2015[18] was tendered on your behalf. In his opinion you present with diagnoses of Major Depressive Disorder and Gambling Disorder. In his opinion your Major Depressive Disorder is linked to your gambling behaviour and “there is a nexus between [your] gambling disorder and [your] offence behaviour.”
[18] Exhibit 1.
55 The prosecutor referred to R vGrossi [19] and submitted that an addiction to gambling, like other addictions, is seldom mitigatory. In that case Redlich JA said[20]:
"Fifth, when offences are committed over extended periods, the prominent hypothesis will be that the offender has had a degree of choice which they have continued to exercise as to how they finance their addiction. This has often provided a reason for a general reluctance to temper the weight given to general deterrence or to reduce moral culpability because an offender has found it difficult to control their gambling obsession."
[19] (2008) 23 VR 500.
[20] Ibid at 517.
56 The prosecutor referred to DPP V Bulfin[21] and Dyason v The Queen[22]. She submitted that general deterrence is the primary sentencing consideration but conceded that there is some moderating effect due to the longstanding depression you have suffered. I accept your counsel’s submission that although general deterrence is relevant, it should be moderated in this case.
[21] [1998] 4 VR 114 (Bulfin).
[22] [2015] VSCA 120 (Dyason).
57 Dr Cunningham also stated that any term of imprisonment is likely to weigh more heavily on you compared to an individual without a Major Depressive Disorder. In his opinion there is a serious risk that imprisonment would have a significant adverse effect on your mental health.
58 Your counsel also referred to your back condition and submitted that you are receiving deep massage therapy which helps with your pain and that it is unlikely that you will be provided with the treatment you require in relation to your back in prison. Your counsel advised that you know that you have to serve some time in prison but that you are petrified of that consequence. Bearing in mind that this is going to be your first experience in custody, its length will have a more significant impact on you.
59 I accept that your major depressive disorder and the matters outlined by your counsel would make it more difficult for you to serve a term of imprisonment than it would be for someone with normal health and without a major depressive disorder.
60 Taking these matters into account and in accordance with the principles stated in Verdins, the weight to be given to both specific and general deterrence is to be sensibly moderated.
Submissions on sentence
61 The prosecutor submitted that given the seriousness of the offending and in accordance with the authority of Dyason, the offending in this case requires a significant term of imprisonment to be served. The prosecutor questioned the punitive and rehabilitative effect of a Community Correction Order in this case. She submitted that the imposition of a Community Correction Order, coupled with a term of imprisonment, would not be appropriate in the circumstances of this case.
62
Ms Dyason was sentenced to an aggregate sentence of five years’ imprisonment on seven charges of obtaining property by deception and a
non-parole period of three years. Ms Dyason was sentenced on 15 October 2014 before the guideline judgment in Boulton v The Queen[23]. Ms Dyason appealed and submitted that the sentence imposed was manifestly excessive and that a CCO combined with a period of imprisonment of up to two years would achieve the purposes for which sentence was to be imposed. The Court of Appeal rejected that submission. However, in the course of their judgment, the Court of Appeal (Whelan, Santamaria and Beach JJA) stated:
"This is not to suggest that a sentence involving a CCO would never be appropriate for a ‘white collar’ offender, but rather that the considerations referred to in Bulfin, as reiterated by this Court in Gregory, remain relevant."[24]
[23] [2014] VSCA 342 (Boulton).
[24] Ibid [40].
63 Your counsel conceded that the offending was serious. He submitted that it occurred in circumstances where greed played no part. He submitted that this is not a case where you were creating personal wealth or living an extravagant life. As a result of what has happened, you have now absolutely nothing in terms of any monetary assets. You are a declared bankrupt.
64
Your counsel submitted that this case is different from Dyason because the money had been stolen from a charitable organisation which was dedicated to “the care of some of the most vulnerable persons in our community”.
Ms Dyason worked as a finance officer at a residential aged care facility in Wangaratta which was totally reliant upon charitable donations to meet the needs of its elderly residents.
65 Your counsel further submitted that there was a significant difference of about $450,000 in the amount which had been appropriated. In Dyason the amount stolen was $1.4 million and, following some repayments and bank reversals, the loss was just over $1.3 million. In this case there was a loss of $850,000 after repayments.
66 In Dyason, the employee was stood down after an enquiry was instigated where a payment was queried. It was only after being stood down that a confession followed.
67 In terms of the utilitarian benefit, in Dyason a firm of chartered accountants was employed to conduct an initial investigation into the thefts as a result of which the matter was reported to the police. Although Ms Dyason cooperated with the police and provided a spread sheet of the fraudulent transactions, the police employed an internal forensic accountant who conducted a detailed investigation which took a number of years before charges were laid. It involved issuing search warrants directed to financial institutions. Dyason had set up 47 bank accounts and search warrants were issued to obtain details of the bank accounts. In this case all of the money went into the one account held by you.
68 The defence submitted that a period of imprisonment followed by a Community Correction Order would achieve the purposes of general deterrence and rehabilitation. Your counsel referred to paragraph 114 of Boulton and submitted that the imposition of a Community Correction Order would allow you to continue to receive counselling for your mental health and gambling addiction. Your counsel also referred to the statement by the Court of Appeal in that case that a Community Correction Order “is punitive in nature and is intended – and expected - to operative punitively for every day of its operation.”[25]
[25] Ibid [138].
69 Dr Cunningham stated that engagement with ongoing counselling for gambling and additional psychological intervention to address your Major Depressive Disorder would positively assist rehabilitation. Mr Thompson also recommended that you resume working with a therapist well versed in developmental trauma and abuse at the earliest opportunity. The prosecutor did not argue that the imposition of a Community Correction Order with conditions that require you to receive counselling in response to your gambling problems would not be an effective rehabilitative strategy.
70 In Boulton the Court of Appeal stated:
113"The availability of the CCO dramatically changes the sentencing landscape. The sentencing court can now choose a sentencing disposition which enables all of the purposes of punishment to be served simultaneously in a coherent and balanced way, in preference to an option [imprisonment], which is skewed towards retribution and deterrence.
114The CCO option offers the court something which no term of imprisonment can offer, namely the ability to impose a sentence which demands of the offender, that he/she take personal responsibility for self-management and self-control, and [depending on the conditions], that he/she pursue treatment and rehabilitation, refrain from undesirable activities and associations, and/or avoid undesirable persons and places. The CCO also enables the offender to maintain the continuity of personal and family relationships and to benefit from the support they provide."
115In short, the CCO offers the sentencing court the best opportunity to promote simultaneously, the best interests of the community and the best interests of the offender, and of those who are dependent on him/her. On this analysis, if defence counsel submits that a CCO would be appropriate, it is no answer for a prosecutor or a judge to say, 'How could a CCO be appropriate, given that an offence of this seriousness has always received imprisonment?' As we have endeavoured to explain, the question should mark the beginning, not the end of the court’s consideration.”
71 It seems to me that charges 1-4 may fairly be said to form part of a series of offences of the same or similar character and that I should impose an aggregate sentence of imprisonment to be followed by a Community Correction Order in respect of these offences in place of a separate sentence of imprisonment in respect of any of them.
72 These are without doubt very serious offences. However, upon analysis of all the evidence and the submissions made by counsel, I propose to order that in respect of charges 1, 2, 3 and 4 you serve an aggregate term of imprisonment for 23 months followed by a Community Correction Order for a period of three years.
73 Could you please stand.
74 As you know, I have sought and received a pre-sentence report in this matter. That report indicates that you are considered a suitable candidate for a Community Correction Order. I am only able to make such an order if you consent to my taking such a course. So that you are in a position to make an informed decision in the matter, I should tell you something about the course I propose.
75 First, the length of the order will be three years. Every Community Correction Order, including the one I propose in this case, contains certain core conditions. They are:-
1You must not commit another offence punishable by imprisonment during the period of the order.
2.You must comply with any obligation or requirement prescribed by the regulations.
3.You must report to, or receive visits from, the Secretary during the period of the order.
4You must report to the Rosebud Community Correction Centre within two working days after you are released from custody.
5.You must notify the Secretary of any change of address or employment within two clear working days after the change.
6.You must not leave Victoria except with the permission of the Secretary.
7.You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.
76 The conditions that apply in addition to the mandatory terms are:
1.You must perform 300 hours of unpaid work over a period of 36 months as directed by the Regional Manager.
2.You must be under the supervision of a Community Correction Officer for a period of 36 months.
3.You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric in a hospital or residential facility as directed by the Regional Manager.
4.You must undergo programs consistent with the purpose of treatment and rehabilitation which may include but is not limited to employment, educational, cultural and personal development programs as directed by the Regional Manager.
5.You must undergo programs that address factors related to your offending behaviour.
6. You must undertake gambling-specific programs or counselling.
77 You must realise that if you breach the order you should expect to be brought back to court and dealt with for such breach. You should expect to be imprisoned, perhaps be fined and perhaps other sorts of orders would be made if that occurs.
78 Do you consent to the making of a Community Correction Order containing the terms I have outlined?
79 OFFENDER: Yes, I do.
80 HER HONOUR: I propose to record a conviction on each of charges 1, 2, 3, and 4 and sentence you to an aggregate term of imprisonment of 23 months. On those charges I will also impose a Community Correction Order that commences upon your release from custody for a period of three years.
S.6AAA statement
81 But for your plea of guilty I would have sentenced you to a term of imprisonment of six years. I would have directed that you serve a minimum of four years before becoming eligible for parole.
82
Would you just hand that to Mr Tiwana? If you could just go through that,
Mr Tiwana, and then approach your client if satisfactory.
83 (Community Correction Order signed and acknowledged.)
84 Yes, thank you. I have signed that order. Are there any further matters?
85 MS HASSAN: No, Your Honour.
86 MR TIWANA: No, thank you, Your Honour.
87 HER HONOUR: Yes, thank you. Yes, could you please take Mrs Philistin into custody.
88 MR TIWANA: Your Honour, if I'm allowed, if I may just have a very quick word with her? It may be difficult to see her downstairs. I just want two minutes.
89 HER HONOUR: Very well. I thank counsel for their assistance in this complicated matter.
90 MR TIWANA: Thank you very much, Your Honour.
91 MS HASSAN: Thank you, Your Honour.
92 HER HONOUR: I will leave the Bench.
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