Director of Public Prosecutions v Phillips

[2019] VCC 1762

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR-18-02567

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHELLE PHILLIPS

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	29 October 2019
DATE OF SENTENCE:	29 October 2019
CASE MAY BE CITED AS:	DPP v Phillips
MEDIUM NEUTRAL CITATION:	[2019] VCC 1762

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Hammill	Office of Public Prosecutions
For the Accused	Mr R. Davis	Robert Davis Barrister & Solicitor

HIS HONOUR:

1Michelle Phillips, you have pleaded guilty to one charge of obtaining a financial advantage by deception and three charges of theft.  Those charges carry a maximum penalty of 10 years' imprisonment.

2Firstly, pursuant to s.464ZF of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.  That order having been made, I must advise you that should you refuse to provide such a sample police may use reasonable force to take it from you.

3You are now 44 years of age and were approximately 42 years of age at the time of the offending.  It is conceded by the Crown that it is an early plea, in the sense of being at the earliest reasonable opportunity.  I accept that that plea of guilty is accompanied by shame, in the form of remorse, and you must also of course get the utilitarian benefit of that plea of guilty.  Trials such as this can be very awkward and difficult to run.

4It is the situation when you were interviewed by police, you did make admissions, which made the investigation, as I understand it, a little bit simpler.  You have no prior convictions and as I understand it, you have no matters pending.

5There has been a delay, approximately three years since the matters were first brought to police attention and you interviewed.  That is a significant delay and it is clear from the material before me that that delay is not attributable to you.  The difficulty with delay, other people can go a period of time and rehabilitate, not offend again and it makes it all more difficult as a sentencing proposition.  But I do take that delay into account and also in the sense that you have now spent something in the order of a couple of years at least before you were charged, wondering if and when that would occur.  I will also point out that the matter, as a plea, has now been in the list here at Morwell for 9 months, which I find unacceptable.  Even though there may be good reason for it.

6A summary of the offending can be done in fairly brief compass.

7You were, as I said - 40 years old as the Crown opening says.  I thought it was a little bit older than that.  You had been employed by Latrobe Valley Security Network for about 10 years as a receptionist and office clerk, that was up until 1 February 2014.  Before that it was owned by a Debbie and Gary Johnson and was operated from Traralgon.  On 1 February 2014, a Mr Zagami purchased the business.  The Johnsons were kept on as employees and you were also retained as an office clerk.  The business was renamed.

8From 1 February 2014 clients of Latrobe Valley Security Network were to direct payments into Mr Zarghami's account and not into the account of the Johnsons.  Their account, however, remained open around until May 2015.  So accordingly, the situation is that so far as Charge 1's concerned you had access to the Johnsons' bank account in order to pay bills for the business.  They would still request you, apparently, to pay bills from that account.

9Between 3 February 2014 and 18 May 2015, you transferred a sum, around $220,000, from that account.  That was done by 125 different transaction.  The situation was that stealing from those people did not begin to occur until some two days after they had, effectively, sold the business.

10I will direct that the Crown opening remain on court file so I do not need to go through all the schedules to it.  But it was over a period of 15 months, in the order $220,000.

11Charge 2 is one of theft.  After the business had been transferred to
Mr Zarghami you were again trusted, in terms of reconciliations and then - I think I can do this as an aggregate situation.  But Charge 2 involved $26,000 being stolen from Mr Zarghami.  Charge 3 involved $33,000 being stolen from Zarghami and Charge 4 involved $110,000, again, involving Mr Zarghami.  There are numerous transactions over which this took place.  Mostly in the order of approximately $1,000 to $3,000.  The offending continued until 2016.

12In around the middle of 2016 one Ms Powell was hired by Zarghami to assist with his office book keeping.  She noticed that large sums of money were missing and that possibly unauthorised transactions had occurred at the Traralgon office.  She as I understand then, having realised that, approached you and asked questions.  So from that point on in time you were, as your counsel conceded, aware that the “game was up”.

13In around October I accept that you had a from of breakdown and simply did not go back to work and were found in a very distressed condition.  The psychologist report that was tendered on your behalf suggests that the offending stopped by simple cessation of it by yourself, it clearly did not stop until you were at least aware that detection was imminent.

14When interviewed, as I have said, you made various admissions.  You were interviewed in November 2016.  You were interviewed again in November 2017 and in April 2018.  That is a significant delay, as I have indicated, and I will be taking that very much into account.

15There is a victim impact statement that has been provided by Mr Zarghami, which describes the effect that this has had on him in an emotional and also, to an extent, in a financial way.  I am not in a position to query all the aspects of the financial matters he refers to, but clearly to have a business relieved of something approaching $170,000 or something like that is a very significant thing.  I take that victim impact statement into account in this sentencing process.

16The crime is clearly a breach of trust carried out over a significant period of time.  It ceased upon imminent detection and as was conceded during the course of the plea no restitution whatever has been made.

17It is put that the victim can claim on insurance, that may well be the case.  But it is a situation where a gaol sentence, in my view, is inevitable.  Principally, because of general deterrence.  I think specific deterrence in your situation, is probably not so important.  Denunciation does play a role and obviously there must be an appropriate punishment.

18Originally your counsel suggested a community corrections order or a combination.  It is my view that the sentence that is going to have to be imposed here is quite clearly beyond either of those two concepts.

19I then turn to matters personal to you.  And tendered on your behalf were some references, which I have read and taken into account, which speak very highly of you.

20It is clear that you have been a community minded person.  You are the Secretary of the Glengarry football club and have throughout your life, other than this spate of offending, conducted yourself appropriately.  In a rural situation, probably the situation of a number of those types of those community investments that you have made will not be able to be carried on.  Despite all this, you continue to have family support, with good family support here in court for you today.  I take those references into account, in the sense that overall this offending is out of character for you.  But I simply have to refer back to the fact that it did occur over a significant period of time, on a very significant number of occasions.

21Tendered also on your behalf was a psychologist’s report from a Ms Bowman.  I indicated to your counsel during the course of your plea that there were aspects of that which I found concerning.  It is not a situation where psychologists should be effectively acting as advocates or purporting to act as advocates in these circumstances.  I can say that most judges wish that psychologists would take a far more stringent attitude to what they are being told during the course of their conferences.

22In any event, I take aspects of it into account.  She has described you as currently suffering.  She first seen you back in 2016.  She decided then that you were suffering from depression, anxiety and work and family related stress.  She decided that that had pre-existed the current presentation.

23She pointed out that you are a married woman, you have two daughters now in their early teens and you have a close relationship with your daughters, I accept that.  It is also the situation, as I understand it, your father's not in good health.  You have put yourself in circumstances where those children are going to be without you for a significant period of time and you will not have the liberty to look after them or endeavour to look after your father.

24They will not amount to exceptional circumstances within the meaning of Markovich and the common law as it stood prior to that, but I certainly take them into account, in terms of an added burden on your as you undergo this sentence.  You will be unable to do much to support any of them and you will have to do so in the knowledge that the reason for that is entirely of your own making.

25The report goes onto describe your background and clearly over the years have had a number of tragedies that have occurred.  Your husband has clearly had drinking problems.  There have been serious health problems in the family with your father, there have been deaths, suicide of a father-in-law that was suffering from depression and the ongoing difficulties that your father's had, a former policeman, who was involved in a fatal car accident in a divisional van.

26I take all those matters into account, including your previous ill health.  But there is the situation at the moment that whilst I accept the circumstances that you do have a major depression and anxiety disorder, that will simply go to the effect of making imprisonment more hard for you than a person who does not have those problems.  Clearly, this is a situation where they are not causational of this offending and it is at that point in time I do take or indicate some concern with the report that has been put in front of me.

27The psychologist seems to be saying that this offending all took place because of a strained working relationship and all sorts of difficulties such as that.  She does point out, however, that up until, as I understand it, this occurred that the Johnsons had been loaning you money for car maintenance, holiday cruises - or a holiday cruise - and doing such things and they had been paid back in cash.

28What the report then goes onto say is that, 'In December 2015 Michelle discovered she was three months pregnant'.  Had difficulty with pregnancies and then advised that - but then was advised to terminate the pregnancy, which you did.  Discovered you had high blood pressure and had to wait a week and I accept that that would have all been very distressing.  She then reports that you returned to work with your employer, which would be Mr Zagami at that stage, 'Did not offer any extra time off despite knowing her circumstances'.

29The report then goes on,

'Therefore, under these circumstances, along with her considerable work stress, Michelle's mental health declined'.

30She said,

'This is when she began to gamble more frequently to the point it got out of control.  Her access to finances at work and lack of monitoring, as well as the lax way finances were handled by her managers and the owner provided her with her more money that she otherwise would not have had in order to gamble.  She also used her credit cards'.

31That may well be so, but the difficulty with that is that is in December 2015.  By my calculation you already stole something in the order of $300,000 by then.  So it is a little bit difficult to reconcile what that psychologist's saying with what has been put before me.

32As I indicated to Mr Davis, on your behalf, I will sentence on the basis that this money was taken for the purpose of gambling but there is something not quite right about it all.  I say no more than that.

33The report then goes on to talk about the major depression/anxiety disorder which I have described and also goes on then to say you fully intended to pay the money back in anyway, including selling the family home.  Well that has not occurred either.

34She then goes on to repeat the matters in December 2015 and I think I have made it pretty obvious what I think about those particular circumstances.  She then goes on to say that you ceased offending of your own accord and again I think that is not quite right either.

35But in any event, after this has occurred I accept that you have had ill health.  You do have those conditions which will make it more difficult for you in gaol.  You will have the burden of knowing that your children and your father will not have your assistance as life goes on.  But the fact of the matter is there is not much that can be done about that.

36The prospects of your rehabilitation ultimately should be good.  You have had enough sense to seek assistance since this all occurred.  To your credit, you have been able to keep working since all this occurred and have not simply gone to ground and hope that it would all go away.  I take those factors into account on your behalf.

37There was discussion with counsel about comparable cases in this situation.  The case of Caufield seems to me to be pretty much in line with what has occurred here.  There is many other cases that I have read, but I think that is a decision which is certainly the one most applicable to these circumstances.  Also a matter of R v Callory is pretty close to it as well.

38In Caufield there was more money taken, but again each situation has to be looked at in its own light.  Caufield of course was one rolled up charged and not four separate ones. I read that decision again, during the course of the lunch break, and I have had another look at the statistics.

39The risk of your re-offending I think is going to be low in all these circumstances.  Again, that has to be taken into account and I do so.

40However, what it comes down to is that an appropriate sentence has to be passed for what is very serious offending of a lot of money over a significant period of time.

41Accordingly, on Charge 1, you are sentenced to be imprisoned for a period of two years.  On Charges 2, 3 and 4, an aggregate of 18 months.  I direct that six months of the sentence imposed on that aggregate be made cumulative or be served cumulatively upon the sentence imposed on Charge 1.  That gives an effective head sentence of two and a half years.

42In these circumstances, having been persuaded by your counsel that an early opportunity for parole than might otherwise be the case should be given because of your prospects of rehabilitation, I have marginally reduced that and accordingly you will be eligible for parole after having served 15 months of that sentence.

43To make it clear what the circumstances would have been had you contested all this, pursuant to s.6AAA I say that but for your plea of guilty you would have been sentenced to be imprisoned for a period of three and a half years, with a minimum term of two and a half.

44Are there any other orders I have got to make, gentlemen?

45MR HAMMILL:  No, Your Honour.

46MR DAVIS:  No, Your Honour.

47HIS HONOUR:  All right, thank you.  She can go now, thank you. 

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