Director of Public Prosecutions v Pinwill
[2017] VCC 266
•16 March 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-16-01464
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| COURTNEY PINWILL |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 November 2016 & 1 March 2017 | |
DATE OF SENTENCE: | 16 March 2017 | |
CASE MAY BE CITED AS: | DPP v Pinwill | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 266 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Theft – obtaining financial advantage by deception – obtaining property by deception – offending committed against employer
Legislation Cited:
Cases Cited:
Sentence: Term of imprisonment of 2 years and 9 months with a non-parole period of 17 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Hannan | Office of Public Prosecutions |
| For the Accused | Mr C. Scott | Brooke Winter Solicitors |
HER HONOUR:
1 Courtney Pinwill, you have pleaded guilty to four counts of theft, two counts of obtaining financial advantage by deception, and one count of obtaining property by deception. All of the offending was committed against the same employer, over a three-year period between January 2012 and late September 2015, while you worked part-time in accounts management at three different locations. Over this period, you defrauded your employer of $347,026.23. You resigned on 16 September 2016, and the fraud was initially detected by the person who took over your role. The company’s accounts were audited, and police became involved. When interviewed, you denied the theft of hard currency, which is the subject of Charge 1, but later pleaded guilty to this charge, along with the others, at the earliest opportunity.
2 In December 2013, your company started using "Cash Passport" pre-paid MasterCard currency cards for the purpose of providing funds in multiple currencies, if required, to employees such as tour guides and tour doctors, to cover incidental expenses incurred in the course of their work duties. You were the product manager for the Cash Passport cards issued to your company’s employees, and you had an administrator log-in which allowed you to create a Cash Passport card for issue to an employee. You kept a record of each individual card holder’s account log-in. You were entrusted by your employer to administer the Cash Passport card accounts without any supervision from your superiors. You were also responsible for the management and accounting of the foreign currency held by your employer.
3 Your offending conduct is set out in the Prosecution Opening and I sentence you on the facts set out in that document. Your offending can be briefly summarised as follows.
4
First, there were thefts of monies. Charge 1 relates to the two occasions (in October 2012 and November 2013) on which you stole US currency (to a total value of $4,575.07) from the safe located in the office, and exchanged it for Australian currency. Charge 2 is a rolled-up charge of nine separate occasions between roughly the same dates when you performed an unauthorised electronic transfer to a bank account held in your name. The total amount transferred was $49,516.32. Charge 3 is a rolled-up charge of 17 separate occasions between January and November 2014, when you performed an unauthorised electronic transfer to a bank account held in your name or that of your mother. The total amount transferred was $103,911.00. Charge 6 is a rolled-up charge of 21 separate occasions between 15 January and
15 September 2015, where you performed an unauthorised electronic transfer to a bank account held in your name or that of your husband. The transactions amounted to $142,989.60.
5 Secondly, you obtained financial advantage by deception. Charge 4 concerns your conduct in May 2014 where you arranged for $21,000 to be loaded onto an employee’s account, then used those funds to make travel reservations in the name of a fictitious customer, when the passengers were in fact yourself and your husband. Charge 5 concerns your conduct in January, June and September 2015. You loaded the accounts of employees with funds totalling more than $14,000, then made travel reservations using those funds for your family to travel to Fiji and Singapore.
6 Finally, you obtained property by deception. Charge 7 concerns your conduct in June 2015, when you loaded $10,000 onto an employee’s account, then used those funds to purchase 190 custom-made tops for the netball club of which you were, and still are, the president.
7 You were arrested by police on 24 May 2016 and were interviewed. You admitted defrauding Captain’s Choice via unauthorised electronic funds transfer on multiple occasions, but were unaware of the total value of the deceptions. You denied the theft of hard foreign currency from your employer, but you later pleaded guilty to Charge 1.
8 You pleaded guilty to the offences at the earliest opportunity.
9
The plea hearing was spread over two dates: 8 November 2016 and
1 March 2017. On the first occasion, your counsel opened briefly and sought an adjournment, during which it was anticipated that you would be making restitution to your former employer and thereby demonstrate the genuineness of your remorse.
10 The plea hearing resumed on 1 March 2017. Your new counsel, Mr Scott, indicated that while restitution had not been made to date, you had obtained the sum of $375,000 from a relative which was in your bank account, and from which you planned to make payment in due course, upon receiving a demand from your former employer’s insurer.
11
This morning, as you were about to be sentenced, your counsel tendered documents establishing, firstly, that the sum of $352,909.71 was deposited to an account in your name on 25 January 2017; secondly, that the sum of $310,478.42 was transferred to the account of Zurich Australia on
3 March 2017; and thirdly, that Zurich Australia confirmed (by letter dated
8 March 2017) that these funds were accepted, together with possession of the 2013 Kluger SUV, in full and final settlement of the matter involving you. It is very remiss of your legal representatives not to have filed these documents as soon as they were received, well in advance of today’s sentence. That is not something which disadvantages you, Ms Pinwill, as I take into account for the purpose of sentencing that restitution has been made in full, albeit by someone on your behalf, and that there is therefore no financial loss to the victim. This is a matter which goes to mitigation, and I will return to it shortly.
12 I turn to your personal circumstances, which are set out in detail in the psychological report of Dr Lisa Forrester dated 27 February 2016[1]. Your counsel tendered a number of documents in support of the plea in mitigation, including: letters from psychologists who have counselled two of your daughters in relation to their concerns over your possible incarceration; a medical report concerning your mother’s health problems; a medical report concerning your husband’s mental health issues; and a bundle of six character references from other parents at the school, former colleagues, other members of the netball club, and good friends. I have taken into account all of the material tendered on your behalf.
13 You early childhood in the country was, in your words, “pretty good”. You were close to your mother, brother and uncle; your father worked on an oil rig. He was also a gambler. Your parents separated, and you moved to Melbourne with your mother and brother. Your uncle helped you out financially. Your mother worked long hours to support you and your brother. You had no problems at school and attended until Year 12, when you fell in with the wrong crowd and stopped attending classes. You did not complete Year 12. Your uncle helped your mother buy a small business in Rosebud, and you moved there with her to run it. However, the business failed and you returned to Melbourne with your mother, living in rental accommodation with her and your brother. You were all struggling to pay the rent and bills on time.
14
Your first offending occurred when you were 18 years old and working in your first job, doing reception and accounts for an air-conditioning company. Although your employer offered to lend you some money, your mother told you to refuse a loan. Instead, you stole about $2,000 in cash from your employer, which you used to pay the rent. You were charged with obtaining property by deception, false accounting and using a false document to prejudice others. You made full restitution of the amount stolen. You were placed on a good behaviour bond without conviction at Broadmeadows Magistrates’ Court on
8 August 1995.
15 You then worked in various jobs, including eight years at Flight Centre doing accounts and six years at Baker’s Delight. You felt guilty about returning to work after your third child was born in 2010, but needed to do so, part-time, for financial reasons, as your husband was anxious and depressed about your finances. You commenced work at Captain’s Choice Travel in late July 2012. According to your treating psychologist, Carmel Moran[2], prior to your offending being discovered, you had experienced an increasing sense of guilt about the thefts and realised that you needed to resign in order to stop offending. You resigned from Captain’s Choice in October 2015 and then worked at Marcellin College until September 2016. You resigned from your job at Marcellin College when your offending became public.
16 You are now 41 years old and have been married for 14 years and have 3 children aged 11, ten and six. You experienced some marital difficulties after being charged but I understand that these have resolved. You kept the current charges secret from your family and friends and were distressed by media coverage identifying the school where you were working. You went missing for a day or so and took overdoses of medication on two occasions. You contacted a friend who persuaded you to meet. You were then assessed in hospital and discharged with a referral to psychological treatment. You have attended eight sessions with Ms Moran. She reports that: you are concerned about the impact that sentencing will have on your husband and children; that you have gained greater insight into your emotional state and are developing better approaches to manage stress; and that you are taking anti-depressant medication. Dr Forrester considers that you are currently suffering symptoms of an adjustment disorder with depressed and anxious mood. You told her that your first episode in the current offending pattern was unplanned and somewhat opportunistic, and that you knew what you were doing was wrong but were relieved at being able to use the money to pay your bills, which contributed to less tension at home. You gave some money to your mother, used some to pay bills, and used some to pay for holidays because you did not want your children to miss out.
17 Dr Forrester noted that in the period leading up to your offending, you described feeling stressed and preoccupied with the family’s finances, and may have been suffering from an adjustment disorder with depressed mood. She noted that many of your symptoms resolved once your offending began, which may have inadvertently reinforced your offence behaviours. She felt that you currently experience some symptoms of anxiety and depression and will require ongoing psychological and psychiatric support if incarcerated. She also stated that you would benefit from the cognitive skills program offered by Corrections Victoria.
18 Dr Forrester noted that you expressed “considerable remorse and disbelief” to her about your offending[3] but indicated that you wanted to take full responsibility for your actions. Dr Forrester assessed you as being at very low risk of reoffending in the future, and noted that you demonstrate a number of protective factors: a strong network of family and friends; a strong employment history; no drug or alcohol issues; engagement in treatment; and generally pro-social attitudes and lifestyle. She considered that you have good prospects for rehabilitation.
19 Your counsel conceded that the charges are serious, were committed over an extended period of time, and involved a breach of trust. He submitted that your prior offending occurred when you were young and emotionally attached to your mother, and that you have, until your recent offending, demonstrated a solid work history without any offending. He submitted that your current offending was caused by household financial stress, including a mortgage of around $500,000; by your desire to shield your husband from distress, and by your feeling guilty about going back to work. He submitted that you have expressed remorse to Dr Forrester and have, in the past week, through the assistance of a relative, made full restitution of the amount stolen. He submitted that your stealing was not premeditated and not sophisticated. He also relied on your early plea of guilty, the fact that you have been assessed as being at low risk of re-offending and as having good prospects of rehabilitation.
20 In all the circumstances, he submitted that it would not be outside the range of appropriate sentences for the court to contemplate a combination of a term of imprisonment with a Community Corrections Order, and for this reason he sought an assessment by Corrections Victoria. Alternatively, he submitted that any head sentence should be moderated to allow for a significant period of rehabilitation.
21 The prosecution submitted that the offending occurred over two and a half years, involved 52 separate transactions and some sophistication in creating accounts and amending documents, involved a significant breach of trust, was motivated by lifestyle choices and greed, and was not the subject of any confession to your employer. Rather, the irregularities were detected by your successor. You sent an email to the company before any investigation occurred, saying that you were ashamed and did not know what to say. It was conceded by the prosecution today, that the fact that restitution has occurred is a factor which must be taken into account in mitigation of sentence. Given the breach of trust and the amount involved, the principal sentencing considerations are those of denunciation, just punishment, specific and general deterrence, and those considerations warrant the imposition of a custodial sentence. The prosecution had sought a forfeiture order. In the light of the terms of the settlement, is that still being sought?
22 MR HANNAN: It is, Your Honour. For the car.
23 HER HONOUR: That is all right, let me just - I will just keep going, I just wanted to make sure that was correct.
24 MR HANNAN: Yes.
25 HER HONOUR: In addition, the prosecution sought a forfeiture order in the sum of $60,000. Is that correct? Is that the correct sum?
26 MR HANNAN: No.
27 HER HONOUR: What is the sum?
28 MR HANNAN: It is the motor vehicle now, Your Honour. We are not seeking a restitution order.
29 HER HONOUR: All right, so a forfeiture in relation to the Toyota SUV?
30 MR HANNAN: Correct.
31 HER HONOUR: Thank you. In addition, the prosecution sought a forfeiture order relating to the Toyota Kluger SUV. You did not oppose the making of that order. Is that still the case?
32 MR SCOTT: That is still the case.
33 HER HONOUR: All right, thank you.
34 The purposes of sentencing include punishment, specific and general deterrence, denunciation, protection of the community and rehabilitation. In sentencing, regard must be had to factors including the seriousness of the offending, your culpability for them, your personal circumstances and those of the victim, if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
35 In cases of this nature, general and specific deterrence are important considerations. Your offending involves a serious breach of trust over a considerable period, involving 52 separate transactions and a substantial amount of money. Whether or not the first offending transaction was planned, it is clear that the balance of your offending was calculated, regular, opportunistic, and, in relation to the last block of offending, quite sophisticated. You started by stealing cash in October 2012. By November 2012 you progressed to transferring funds to your account or that of your mother once or twice each month through 2013 and 2014. The "Cash Passport" pre-paid MasterCard currency cards were introduced in December 2013, and from early May 2014 your offending turned to exploiting that system for your financial benefit. Most of the money you obtained was used to finance travel for your family and friends, the purchase of a Toyota Kluger, and the purchase of clothing for your netball club. The balance was transferred to your mother’s account. Any financial pressure that you felt under because you and your husband were carrying a substantial mortgage in no way explains or excuses your conduct. Your moral culpability for the offending is high.
36
On the other hand, I consider I must give weight to your early plea of guilty, your remorse, your prospects of rehabilitation, and the fact that you have made full restitution. I have taken into account that you pleaded guilty at the earliest opportunity; and note that your plea has saved the witnesses and State the expense and inconvenience associated with a committal and a trial. In addition to the remorse which inheres in a plea of guilty, I accept that you have expressed remorse to Dr Forrester for your conduct, and I accept that the making of restitution also goes some way to further expressing your remorse. In the light of her report, I consider that your prospects are reasonably good in that you are receiving psychological treatment, have solid supports in place, and have been assessed as being at very low risk of reoffending. I accept
Dr Forrester’s opinion that you are vulnerable to a deterioration in your mental state if incarcerated, but in the absence of a submission on your behalf that your experience of imprisonment is likely to be disproportionately severe as a result of your psychological condition and thereby warrants a reduction in sentence, I give it limited weight. I note that you are currently receiving psychological treatment and will be able to receive ongoing treatment in prison. I take into account in mitigation that you have, as I have said, through the assistance of a relative, made full restitution of the amount stolen, and therefore that the victim in this case has not suffered financial loss.
37 I note the report of Corrections Victoria dated 7 March 2017 to the effect that you are suitable for such an order with conditions involving community work and mental health treatment. The report notes your expression of remorse for your offending, that you are already receiving counselling and taking anti-depressant medication, and that you are at low risk of reoffending.
38 Given the seriousness of your offending, however, I consider that a CCO alone would be insufficient to satisfy the need to punish and denounce your conduct, and to provide a measure of general deterrence. In all the circumstances, taking into account the seriousness of the offending and your circumstances, I consider that the appropriate sentence is one involving a term of imprisonment and the imposition of a non-parole period.
39 I propose to impose an aggregate sentence because I am satisfied that the offending constitutes a series of offences of the same or similar character. I note that the theft charges, Charges 2, 3 and 6, are rolled-up charges, comprising a series of offences. The remaining charges reflect the different techniques employed by you in your offending, which was essentially of the same nature. In fixing a non-parole period, I take into account your family circumstances, that this will be your first time in prison, that you are unlikely to reoffend, and that you have good prospects of rehabilitation.
40 Courtney Pinwill, would you please stand?
41 You are convicted on each charge and sentenced to an aggregate term of imprisonment of two years and nine months with a non-parole period of 17 months. I indicate pursuant to s.6AAA of the Sentencing Act that but for your plea of guilty, I would have imposed a sentence of an aggregate term of imprisonment of four years with a non-parole period of two years.
42 Orders will contain custody management directions concerning the fact that you are receiving psychological treatment. Are there any other custody management issues that ought to be made?
43 MR SCOTT: On the last occasion Your Honour, I sought a direction that Dr Forrester's report be made available to Corrections.
44 HER HONOUR: All right, yes.
45 MR SCOTT: And I think, besides her mental health treatment, that there are no other custody management matters, Your Honour.
46 HER HONOUR: All right. Perhaps you would hand up those forfeiture orders, I will sign those.
47 MR HANNAN: Yes Your Honour.
48 HER HONOUR: Our next matter does not start here until 11.30, so if you want a few moments with your client, I will just stand the matter down and you can see him.
49 MR HANNAN: Sorry Your Honour - - -
50 HER HONOUR: Yes?
51 MR HANNAN: There is one other application made under s.464ZF of the Crimes Act. I apologise if that was not made orally on the last occasion. It probably was not.
52 HER HONOUR: No.
53 MR HANNAN: And I should have done so.
54 HER HONOUR: All right.
55 MR HANNAN: The application is for a forensic sample, given the serious nature of the offence, and the Crown submits it is in the public interest that such an order be made, Your Honour.
56 HER HONOUR: All right, is that opposed?
57 MR SCOTT: No Your Honour.
58 HER HONOUR: No? All right, I will make those orders, and I will reflect those in any revised sentencing remarks that they have been made.
59 MR HANNAN: Thank you Your Honour.
60 HER HONOUR: Excellent. All right, thank you.
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[1] Exhibit B
[2] See her report dated 20 February 2017 – Exhibit C
[3] Page 5 of her report.
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