Director of Public Prosecutions v Pope

[2016] VCC 397

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01635

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARK ANDREW POPE

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	7 April 2016
CASE MAY BE CITED AS:	DPP v Pope
MEDIUM NEUTRAL CITATION:	[2016] VCC 397

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore
For the Accused	Ms J. Parnell

HIS HONOUR: 

1Mark Andrew Pope, you have pleaded guilty to four charges of theft.  The facts of the case are contained in the summary of the prosecution opening which is Exhibit 1 on the plea.  I will not now in any detail recount the facts.  Any reader of these reasons can refer to that exhibit to place the sentence in its factual context.  Those facts are not disputed by your counsel.

2Briefly stated, you were the management accountant of a company named Bradken Resources Proprietary Limited.  Between 13 May 2010 and 6 December 2012, you stole $3,124,605.88 from your employer.  To effect that plan, you set up a shelf company, Bradken Scrap Metal.  You then fabricated 36 invoices for fictitious deliveries of scrap metal from the shelf company to Bradken between those dates. 

3You are to be sentenced as a continuing criminal enterprise offender because of the amounts you stole as set out in the first three charges.  That means that the maximum penalty is to be doubled for each offence. 

4In the case of Grossi [2008] VSCA 51, Redlich JA at paragraph 81 said:

The sentencing judge retained a discretion as to whether a greater sentence should be imposed where the maximum penalty on a count is increased because it is a continuing criminal enterprise offence.  This discretion obviously extended to the qualifying CCE offences."

5He then set out the test that I should consider in deciding whether to exercise that discretion or not, and he further said: 

"Where all of the qualifying CCE offences are before the court and it can be determined that the qualifying offences were committed in furtherance of a particular criminal scheme so that it can be said that from the outset that the offender intended to commit those offences to achieve their objective, it may be appropriate to impose a greater penalty on some or all of the qualifying CCE offences.  There may be other circumstances where the nexus between the first, second and third qualifying offences would justify such an outcome."

6In that case, His Honour was in a minority in relation to the major part of the decision.  However, that case was overturned on that point and another case called Roussety [2008] VSCA 259 in which Redlich JA again set out his thoughts in relation to the discretion he mentioned in Grossi.  I have been asked to consider whether I should exercise that discretion, and in doing so I have to make a determination whether the qualifying offences were committed in furtherance of a particular criminal enterprise so that it can be said from the outset that the offender intended to commit those offences to achieve their objective.

7In order to consider that, I have gone to the record of interview made by yourself on 13 August 2015 in which you were asked about how you became involved in this scheme.  You said in answer 31, "I came up with this crazy, crazy scheme and it was very simple, no complexities to it, which involved me creating a company called Border Scrap Metal Proprietary Limited and billing Bradken for using fictitious invoice or invoice - false invoices that were paid into the account of Border Scrap which then paid into my accounts directly so it was fairly non-complex."

8In answer 28 as to why you decided to do this, you said you were drowning in an emotional pit of terrible thoughts and coming home to depression and things all the times, Leah, your wife then, talking of suicide.  Further on you said, "I was going emotionally crazy to improve our lot in life and to help Leah to help me in being able to enjoy a better life, I came up with this ridiculous scheme one day.  I could see if only we could - if only we lived in a better part of town."

9In answer 36, you said - when asked what you meant by accumulate a better life, you said in answer 36, "I guess accumulate things, being able to go away on holidays, get out of that house, that darkness, being able to enjoy things with a caravan, that sort, we could go away, we moved to a different part of Wodonga which we did."  And you moved to the house in Lorikeet Street in Wodonga in December 2012.

10In answer 48, you said your motivation was just to "improve our lot in life". 

11The house in Lorikeet Street Wodonga was purchased for $625,000 on 10 November 2011.  After consideration of the discretion as set out by His Honour Redlich JA, I am satisfied that the qualifying offences were committed in furtherance of a particular criminal scheme so it can be said from the outset that you intended to commit those offences to achieve their object.  As disclosed by your answers in the record of interview, the scheme was to steal as much money from your employer so as to improve the lifestyle of yourself and your family, and this included the purchase of a new home and other luxury items.

12However the consequential effect of a continuing criminal enterprise offence of increasing the maximum penalty remains only one of the number of considerations in determining the appropriate sentence.  I have taken into account all the relevant circumstances in determining the sentence. 

13The victim impact statement of Steven Perry, the chief financial officer of the company, was read to the court.  I have taken into account its contents.  It sets out graphically the devastating effect your behaviour had on the company and its employees.  Restitution has been made by you in the terms discussed during the plea.  The property at Lorikeet Street Wodonga is yet to be sold.  There is still a significant amount of moneys owed.

14The prosecution submitted that a significant term of imprisonment should be imposed.  He handed me the case of R v Alan Munt [2015] VSC 132 as an example of the upper range for this type of offending, however he did concede that there are such differences between that case and yours that I could impose a lesser sentence than the one imposed in Munt.  He also handed me the sentencing statistics for these types of offences.

15In respect of your counsel's submission concerning the case of Verdins, the prosecutor submitted that it did not apply here but that a slight adjustment in sentence could be made because of your mental health issues.

16On your behalf your counsel Mr Newton filed an outlined of submissions and tendered various medical reports.  He supplemented that with oral submissions.  He conceded the seriousness of the offending and that a term of immediate imprisonment must be imposed.  He detailed the restitution that has been made and upon the next sale of assets, the amount of $1,324,126.63 will have been recovered.  I accept the submission he made in respect of restitution.

17Prior to the discovery of your criminal conduct, you sent a letter of apology to your employer.  You ceased your offending approximately two years prior to discovery.  In answer 155 when asked why you stopped in 2012, you said, "I stopped, I stopped doing it."  156:  "I stopped doing it, I came to the realisation that it was wrong, what I was doing was wrong."  157:  "But I was in way too deep to rectify it at that stage I stopped."

18Your counsel submitted you had cooperated with police and you pleaded guilty at the earliest reasonable opportunity and I have accepted both of those submissions.  You have shown remorse and I accept that.  You have no other criminal history.  You have the support of your family and live with your parents in Coffs Harbour.  Your separated wife was in court to support you.  You have a nine-year-old daughter in the care of her mother.  You have had regular contact with her.  You have a consistent work record.

19Your offending has cost you your job, your marriage, and your career.  Mr Newton submitted you have excellent prospects of rehabilitation.  He submitted that the principles as outlined in the case of Verdins known as principles 1 to 4 and principle 5 apply to this case which should lead to a modest reduction in penalty.  He submitted that principles 1 to 4 should lead to a a lessening of your moral culpability and thus affects the principle of general deterrence. 

20In making that submission, your counsel relied on a number of matters.  As is set out in the report of Pamela Matthews, a forensic psychologist, you have a history of depression.  A number of pre-existing medical reports were tendered, one from Dr Susette Sowden dated 4 December 2009 which said that you had an adjustment disorder with depressed mood.  She said you had an excellent prognosis.  In a further report dated 13 January 2010, she said that you had problems with relationship tensions and wider extended family issues.

21A report from Dr Ron Brooder, a consultant neurologist in August 2010 related to treatment concerning your migraines.  A report was obtained from Dr Caroline Caybot who said you presented on 20 August 2015 with depressive symptoms and aggrieved reaction. 

22In the report of Pamela Matthews, she set out that you had been diagnosed with depression in 2009 and various medical reports corroborate that finding.  She concluded that you are likely to have suffered from depression for the last nine years.  She said in the paragraph headed "Diagnosis and opinion" at p.9, you would meet the DSM-V diagnostic criteria for major depressive episode recurrent, currently at moderate degree.  She said your medical records indicate recurrent depression and the recurrent prescription of antidepressants since 2009 associated with martial difficulties arising from your wife's depression and preceding your fraudulent activities.  She also diagnosed you with a borderline personality disorder, see p.10 of her report. 

23In considering the question of whether Verdins applies, the recent case of O'Neill was put to me. That is reported at [2015] VSC 25 and is the most recent pronouncement by the Court of Appeal on the issue of Verdins.  Verdins is a case that sets out the principles concerning mental health issues and whether they should lead to a reduction of sentence in different cases.  At paragraph 71, the court said in O'Neill that the principles are enlivened only where the offender suffers from an impairment of mental functioning.  Prior to that, the court had said that a rigorous evaluation of the evidence should be undertaken by the sentencing judge.

24The court importantly distinguished between mental impairment and personality disorders, and in this case that's a distinction I have to make because the diagnosis of depression can be termed an impairment of mental functioning whereas the personality disorder on the principle set out in O'Neill does not so qualify.

25I then have to consider whether there must be a connection between the impairment to mental functioning and the appellant's moral culpability or the need for general and specific deterrence.  Reading from paragraph 74 of O'Neill, the question is:  "If the mental impairment existed at the time of the offending, it must have some 'realistic connection' with the offending; or have 'caused or contributed' to the offending; or be 'causally linked' to the offending."

26If one goes to Pamela Matthews' report, in relation to her diagnosis of borderline personality, she set out a number of factors which were indicators of it and at p.10, one of the factors she said were indicators of it was impulsivity in at least two areas that are potentially self-damaging.  In Mr Pope's case, it was spending and sex.  Of course the latter part of the money he stole were expended on two extramarital relationships.  Ms Matthews went on to say, "Well, the writer has already referred to the self-enhancing aspect of the extramarital relationships of Mr Pope.  Spending per se was self-enhancing and building a self-esteem such as the purchase of cars for a lover, donations to charities, handouts to friends and another lover and holidays."  The point I am making is that Ms Matthews related that to the borderline personality disorder, which is not a mental impairment as set out in O'Neill's case.

27However, she went on to say at p.11, a borderline personality disorder does not preclude any individual from suffering from depression as a separate disorder.  She then said:

"In the writer's opinion, Mr Pope's offence behaviour was a product of his personality features and a significant overlay of depression varying between persistent depressive disorder and major depressive disorder.  Over the last nine years or so, with these two aspects of his mental state presentation limiting his judgement more so than the depression.  Depression, particularly the impacts upon thought, narrow cognitive flexibility, limiting an individual's capacity to see solutions to problems beyond those that immediately present themselves, sort of like tunnel vision but really tunnel problem-solving.  Feelings of worthless relate to coping issues such as substance or gambling, not a problem in Mr Pope's case, but also self-enhancing coping activities such as spending, a problem in Mr Pope's case.  Feelings of hopeless such as Mr Pope giving up the capacity of professionals to help his wife's mental issues were also contributing."

28It can be seen from that that there is an overlay between the effects of the borderline personality disorder and the major depressive disorder insofar as it is related to the offending here.

29So I accept that you had a depressive condition prior to and at the time of the offending as set out by Ms Matthews, namely a major depressive disorder.  As to whether that then invokes principles 1 to 4 on Verdins, I am in very much some doubt.  Because of the interaction between the two problems, there is an issue of whether or how I could make a distinction between the depression and the borderline personality disorder and what effect each of those had on your offending. Then I have to ask myself the question as set out in paragraph 74 of O'Neill, whether there is a realistic connection with the offending or the mental impairment has caused or contributed to the offending or be causally linked to the offending. 

30I am not quite sure how Ms Matthews puts it, but as I understand what she is saying when she is talking about tunnel vision and tunnel problem-solving, that she is saying the depression led to you having a limitation in your judgment that had an effect so as to cause you to offend here.  That is, your depression so clouded your judgment that you stole over a period of approximately two years $3.124 million from your employer.  You spent the moneys obtained on the accumulation of assets, holidays and various vehicles for yourself, your family and your other two friends. 

31You set up a scheme by way of a fake company, fake invoices, and you billed your employer 36 times to obtain the amounts.  That reveals to me planning, the ability to think through what you were doing, the ability to know the consequences of what you were doing and finally at the end come to the realisation that what you were doing is wrong, and clearly in my view you would have known right from the start that what you were doing was wrong.  I just cannot see that there is a realistic connection between Ms Matthews' outlines or a causational contribution to the offending or the causal link to the offending between the depression and what you did. 

32I then have to consider whether the necessary connection to the offending so impaired your judgement because of your depression that it affected your ability to appreciate the wrongfulness of the conduct or obscured your intent to commit the offence or impaired your ability to make calm and rational choices or to think clearly at the time of the offence.  By virtue of what you did, my view is that you were well aware that your conduct was wrongful, you intended to commit the offence and you had an ability to make calm and rational choices by the way that you went about the offending and thinking clearly at the time.  So I reject the submission that limbs 1 to 4 of Verdins apply.

33In my view, the way I should consider that issue of your mental health is set out in paragraphs 95, 96 and 97 on Verdins.  That is that your personality disorder and your depression is not irrelevant to the sentencing synthesis, it has a role to play as an explanation of how you came to be in the position of committing these offences.  You were concerned about your wife's illness, it led to you having a depression and then to solve that problem you took the step of committing these offences.  You thought you could solve the problem by in effect improving the standard of living of your family.  Of course, how all that fits in with your later spending on the two extramarital affairs, I have no idea.  That type of spending seems to me totally inconsistent with your reasons for the offending and also totally inconsistent with the proposition put that Verdins 1 to 4 apply.

34So in my view, your mental health issues as set out by Ms Matthews, I have considered as set out in paragraph 95 to 97 of O'Neill and I have done so.

35Your counsel also submitted that the fifth principle of Verdins applied, that is that because you will be spending time in prison away from your family, plus the fact that you have depression will make your time in prison more onerous.  I certainly take that into account but in my view, that is not unique to yourself that someone who is depressed, imprisoned and separated from their family so as to cause such an onerous time for you that I should make a deduction.  I do take those matters into account as a general proposition however.

36In sentencing you, I have to consider a number of sentencing principles. I have taken into account all of the submissions made, each of the items tendered and the cases referred to.  General deterrence, that is, the need to deter others from committing like offences is an important consideration here. 

37I also have to express what is called the court's denunciation of your behaviour.  You do not need me to tell you that your behaviour here was appalling, dishonest and a gross breach of trust.  The amounts stolen were large and the proceeds were used for acquisitions.  I have taken into account the fact that substantial restitution has been made. 

38I accept because of your otherwise good record and the support of your family that you have good prospects of rehabilitation.  Thus specific deterrence - although it still has a role to play here because of the number of offences committed over the two-year period - is not as great as it normally would be.

39I have taken into account the following factors.  One, you have no other criminal history and you were otherwise of good character and background.  Two, your plea of guilty.  It is an early plea of guilty that shows an acceptance of responsibility by you and saved the community the cost and time of a trial which in these types of matters can be lengthy and expensive.  Three, I accept you have shown remorse.  You have desisted from other offending.  Four, restitution has been made.  Five, your cooperation with authorities.  Six, gaol will be more onerous for you in the respect that I have just analysed.  Seven, you have suffered the loss of your career, job and marriage.  Eight, your mental health issues.

40I have discussed with counsel on a number of occasions whether I could impose an aggregate sentence pursuant to s.9(1) of the Sentencing Act.  I am satisfied and both parties agree that I can do so.  I have to be satisfied that two or more of the offences which are founded on the same facts or form or are part of a series of offences of the same or a similar character, I can impose it.

41Under s.9(4A), an aggregate sentence of imprisonment may be imposed in respect of convictions for offences that are the subject of a rolled-up charge or a representative charge.  These charges are rolled-up charges.  It is obvious that the offending here is part of a series of offences of a same or similar character based on the same facts. 

42Taking all those factors into account in relation to the four charges, I impose an aggregate sentence of six years and I fix a non-parole period of four years. 

43I declare that the 22 days that you have already served to be part of the term of imprisonment that I have just announced.

44I declare under s.6AAA of the Sentencing Act that but for your plea of guilty, if you had proceeded to trial and you were convicted, I would have sentenced you to a sentence of eight years with a non-parole period of six years.

45I am signing a s.464ZF(2) order which enables for the taking of a scraping from your mouth or blood sample for placement on a database for DNA.  I will sign that.  I am satisfied the seriousness of the circumstances of the forensic sample offence justify making the order for the following reasons:  the seriousness of the circumstances and it was not opposed by your counsel.

46Mr Pope, if you decide to change your mind and not consent to it, I tell you that the police may use reasonable force to enable that procedure to be undertaken.

47Are there any other matters, Mr Moore?

48MR MOORE:  Look, it may be taken care of internally, Your Honour, but there needs to be a ‑ ‑ ‑ 

49HIS HONOUR:  I made a declaration that he's a continuing criminal offender.

50MR MOORE:  Yes, and that is to be entered in the records of the court.

51HIS HONOUR:  Yes, that will - I've already instructed my associate to enter that on the record.

52MR MOORE:  Yes, thank you Your Honour.  No, nothing further.

53HIS HONOUR:  Nothing further?  What about from the defence, anything further from you?

54MS PARNELL:  Nothing further, Your Honour.

55HIS HONOUR:  All right, thank you.  You can take Mr Pope out, thank you.

56You're all excused, thank you.

57COUNSEL:  Thank you, Your Honour.

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