Director of Public Prosecutions v Power

[2020] VCC 643

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00740

DIRECTOR OF PUBLIC PROSECUTIONS

v

KYLIE-ANN POWER

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JUDGE:	HIS HONOUR JUDGE COISH
WHERE HELD:	Melbourne
DATE OF HEARING:	12 May 2020
DATE OF SENTENCE:	20 May 2020
CASE MAY BE CITED AS:	DPP v Power
MEDIUM NEUTRAL CITATION:	[2020] VCC 643

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 D. O'Doherty	Office of Public Prosecutions
For the Accused	Mr A. Patton	McFarlane Criminal Lawyers

HIS HONOUR: 

1Kylie-Ann Louise Power, you have pleaded guilty to four charges of theft and three charges of obtain financial advantage by deception.  These offences carry the following maximum penalties.  Theft, 10 years' imprisonment.  Obtain financial advantage by deception, 10 years' imprisonment.

2It is unnecessary for me to recount the facts of the matter in detail as they are on transcript and contained in Exhibit 1, summary of prosecution plea opening.  That opening was accepted by you through your counsel.  I proceed to sentence you on the basis of the facts as opened by the prosecutor which I shall now briefly summarise.

3At the time of this offending, from 14 October 2016 to 13 April 2018, you were operating a bookkeeping business from home, KP Bookkeeping.  The victim, Jean-Paul Adolphe, conducted a graphic design company, CD83 Design House.  He employed you to lodge BAS statements.  You were given access to his company's Xero accounting software.  You stole a tax refund due to this victim's company by having this money paid into your bank account. 
(Charge 1, theft, $27,208.86). 

4You also stole from this victim by having him pay seven amounts due to the ATO into your bank account.  (Charge 3, theft, $7,233.55).

5Your failure to conduct your contracted bookkeeping duties to Adolphe resulted in Adolphe being place in debt arrears and a debt collection agency was appointed by the ATO to collect $20,900.43 as being due and payable.  In total you stole $34,442.41 from Adolphe. 

6The remaining Charges 2, 4, 5, 6 and 7, are in respect of Titan Security.  The victim was Roderick Zagami.  He operated a company, Latrobe Valley Security Network under the business name Titan Security and Protective Services.  He hired you in mid-2016 to assist him with bookkeeping and employee wages.  You were contracted to do the payroll, create and send out invoices, employee superannuation and prepare BAS statements. 

7To facilitate this work being done remotely the online banking software QuickBooks was utilised.  The QuickBooks program that you used already had many of the employee details required for wages and superannuation.  The system enabled the invoicing of customers by way of emails.

8Between 7 November 2016 and 9 August 2017, you had lodged four claims with the State Revenue Office for overpaid payroll tax on behalf of Titan Security and Protective Services.  You provided the State Revenue Office with your personal NAB account details.  You received four payments totalling $17,209.01 into your personal account.  This money should have been paid directly to Titan Security and Protective Services.  (Charge 2).

9Between 7 August 2017 and 27 March 2018 you accessed QuickBooks and directed Zagami to pay superannuation to employees.  Zagami paid the superannuation, but you directed Zagami to pay the funds into your Westpac bank account.  You received 15 payments totalling $90,037.68 into your bank own personal account that should have been paid directly to Titan Security and Protective Services.  (Charge 4).

10Charge 5 involved 15 payments from 28 September 2017 to 10 April 2018, totalling $13,361.69 made by the Department of Education into your personal NAB bank account.  This money should have been paid to Titan Security and Protective Services. 

11An administrative employee of the Department of Education received an email purporting to be from Titan Security and Protective Services attaching invoices that had not been paid.  When she spoke with you about these unpaid invoices, you told her you were, 'sorting out invoices that hadn't been issued as her predecessor had been embezzling'.  You told her that due to the embezzling you would need to update the banking details for receipt of payments.  You created the invoices using your NAB account details.  The Department of Education employee processed the invoices from Titan Security and Protective Services that had been attached to the email you sent her.

12In December 2017 you accessed QuickBooks and changed several employees' bank details to various personal bank accounts you held.  You then emailed Zagami with the various ABA files with wages due.  Zagami made payment into the accounts on the ABA files.  Zagami did not know the payments were being made into your personal bank accounts. 

13Between 27 December 2017 and 18 April 2018 you received 34 payments, totalling $56, 372.60 cents into your personal account that should have been paid directly to Titan Security and Protective Services.  Once you received the funds you then paid the employees a portion of the wages into the correct accounts of those employees.  In total you retained $12,796.82 in employee wages.  (Charge 6).

14Finally, Charge 7 involves the Boolarra Community Hotel.  On 9 January 2018, an employee of that hotel, Donna Pearce, received an email from you.  Attached to the email was an invoice relating to services that had been performed by Titan Security and Protective Services at the hotel.  The amount due was $3,116.80.  Pearce responded to the email asking that the hotel be permitted to pay off the invoice in $100 weekly instalments.  You agreed to this arrangement. 

15Pearce then commenced paying the instalments into the bank details that had been provided in the email.  Those bank details were of a National Australia classic banking account in your name.  Between 23 January 2018 and 16 April 2018, you received 13 payments, totalling $1,300 into your personal account that should have been paid directly to Titan Security and Protective Services.  (Charge 7).

16A police investigation commenced in May 2018.  You were arrested and interviewed.  During interviews with police you provided some information and you stated that you had a gambling problem. 

17I state to you that I have taken into account the following matters in mitigation of sentence: 

·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; 

·The plea of guilty has utilitarian value; 

·The trial was listed for hearing over three weeks in Bairnsdale; 

·You pleaded guilty at a late stage, shortly prior to the trial date;

·I accept, on all the material before me, that you are genuinely remorseful. 

18I have been told something of your personal circumstances and these matters are set out in the outline of plea submissions and material tendered on your behalf. 

19You are 43 years of age, having been born on 21 February 1977.  You are the single mother of three children, aged 14, 12 and 8 years.  You were educated to Year 12 level.  You have worked for many years as a self-employed bookkeeper.  You were recently employed as an office administrator until that business shut down as a result of the COVID-19 pandemic. 

20You had an unhappy childhood as your father was an alcoholic and both parents were heavy gamblers.  You were sexually abused by your uncle, but this offending was not disclosed until recent times.  Your relationship with the father of your children ceased in 2013 following your imprisonment.  He has had sporadic contact with the children since then but has not been in contact with them since Christmas 2019.

21You reside in Bruthen.  You are now engaged in home duties and supervising your children's home learning.  You engage in counselling and rehabilitation for your gambling addiction and exposure to domestic violence, alcoholism and childhood sexual abuse.  You also suffer from your experiences in the 2009 and 2019/20 bushfires. 

22It is submitted on your behalf that hardship to family, your three children, is exceptional and therefore ought be taken into account as a factor in mitigation.  I have carefully considered the material in respect of various psychological and behavioural issues affecting the three children.  You are largely estranged from your immediate family.  Should you be imprisoned in the short term the children would be cared for by their paternal grandparents but it may be necessary for the children to be placed into the care of the DHHS.

23The evidence in respect of the likely future arrangements for the children is unclear.  I am not satisfied on the material before me that hardship to family is exceptional.  It does not satisfy the requirement of exceptional circumstances.  I have, however, taken into account that it will be burdensome upon you to be separated from your children as a result of a sentence of imprisonment.

24A psychological report from David Ball dated 6 May 2020 was tendered on your behalf.  He is of the opinion that you have a gambling disorder, now in
long-term remission, a borderline personality disorder and PTSD.  I have taken these opinions into account as part of your personal circumstances.  It is not submitted that any of the well-known principles enunciated in Verdins case apply.  I assess your prospects of rehabilitation as being cloudy. 

25Against these matters in mitigation, however, your actions were very serious indeed.  Your offending involved a gross breach of trust as you were employed by both victims as their bookkeeper.  The offending was sophisticated and calculated.  There were a large number of individual acts of dishonesty perpetrated over a lengthy period.  The victims were vulnerable.  You knew they were reliant upon your honesty.  In particular, the victim Zagami was financially 'on his knees', as he had just been defrauded.  You took advantage of his particular vulnerability. 

26There are two victim impact statements.  Jean-Paul Adolphe has described his hard work in establishing his business and obtaining a position where he was able to comfortably support himself emotionally, financially and socially.  He describes the adverse effects the crimes have had upon his lifestyle.  He has experienced feelings of anxiety and depression.  He has also experienced panic attacks.  His sleep has been adversely affected.  He has experienced physical symptoms as a result of the emotional impact of this offending.  There have also been adverse financial consequences. 

27Roderick Zagami has also experienced a severe emotional impact as a result of these crimes.  He describes feelings of anger, irritability and depression.  The emotional effect upon him has adversely affected his Type 2 diabetes.  He has also suffered great financial loss.  He is in increasingly withdrawn from family and friends. 

28You have admitted before me prior convictions.  There are four court appearances between 6 November 2013 and 6 July 2009 involving convictions for attempt to pervert the course of justice, theft and selling liquor when not a licensee. 

29I have also been provided with the sentencing remarks of His Honour Judge Carmody, dated 6 November 2013 in relation to the attempt to pervert the course of justice.  You were convicted and sentenced to a six month period of imprisonment in relation to that offending. 

30The nature of some of these prior convictions, particularly offences of dishonesty, theft and attempt to pervert the course of justice is highly relevant to my task in sentencing you today. 

31As well as the matters to which I have referred, I must also take into account the need for general and specific deterrence.  Specific deterrence is relevant in view of your prior history and the nature of this offending.  General deterrence is also of considerable importance in a case such as this.  I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment. 

32It was submitted on your behalf that I ought impose a community corrections order alone.  It was submitted on behalf of the prosecution that a sentence of imprisonment was required and a combination sentence of imprisonment and a community corrections order was the appropriate sentencing disposition.

33I have obtained a community corrections order assessment outcome report, dated 15 May 2020.  You are assessed as suitable for a community corrections order.  The assessor recommends the following conditions:  Community work, supervision, Treatment and rehabilitation in respect of mental health, alcohol and other.  I accept these recommendations and the opinion of the Community Corrections officer.

34I am satisfied, having regard to all the circumstances, particularly the objective seriousness of this offending and relevant sentencing principles of denunciation, deterrence and just punishment that a term of imprisonment is required in combination with a community corrections order. 

35Having regard to all relevant facts and appropriate sentencing principles,
I propose to impose an aggregate sentence, you will be convicted and sentenced to nine months' imprisonment together with a two year community corrections order. 

36It is necessary for me to explain the terms of that order to you and although you have indicated to the Community Corrections officer a preparedness to consent to such an order, I must obtain your consent myself.  There is a court official with you in the Bairnsdale Court and we have provided the court official with a copy of the community corrections order that I propose to make. 

37I wonder if the court official could assist at this point by providing the proposed community corrections order to Ms Power.  If you look at that document, you will see that the order will last for two years and it will commence on completion of imprisonment/detention term.  You must, within two clear working days, attend at the Bairnsdale Community Correctional Services office and there are mandatory terms that apply to all community corrections orders.  They are set out in the order and I will just - because we are doing this over the WebEx facility, I will actually read all of these terms out. 

38The mandatory terms that apply to all community corrections orders are:

·You must not commit another offence for which you could be imprisoned during the time that the order is in force;

·You must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Act regulations 2011;

·You must report to and receive visits from the Secretary or delegate;

·You must report to the Community Corrections Centre within two clear working days of the order starting;

·You must let a Community Corrections officer know within two clear working days of you changing your address or job;

·You must not leave Victoria without first getting permission to do so from the Secretary or delegate;

·You must obey all lawful instructions from and directions of the Secretary or delegate.

39So they are the mandatory terms.  There are additional conditions that apply.  The additional conditions are:

·Unpaid community work. You must perform 100 hours of unpaid community work over a period of two years, as directed by the Regional Manager. If you fail to comply with this order, the Secretary to the Department of Justice or delegate may give you a direction to perform additional hours of unpaid community work, in accordance with s.83AU of the Sentencing Act 1991;

·Supervision.  You must be under the supervision of a community corrections order for a period of two years;

·Finally, treatment and rehabilitation.  You must undergo assessment and treatment, including testing for alcohol abuse or dependency, as directed by the Regional Manager;

·You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility, as directed by the Regional Manager.  You must participate in programs and/or courses that are consistent with achieving the purpose of treatment and rehabilitation that may include employment, educational, cultural and personal development programs, as directed by the Regional Manager.

40I must explain to you that if you breach any of the terms of the community corrections order, you are liable to be prosecuted for the breach of the order and brought back before me.  You may be dealt with for the breach of the community corrections order and you may also be dealt with by me in relation to the offences for which I am sentencing you today.

41Do you understand the nature and effect of the proposed community corrections order?  And do you consent to the making of the community corrections order?

42OFFENDER:  Yes. 

43HIS HONOUR:  Could you just please sign where it says, 'signature of offender', just above my signature.  And can you just provide that document back to the court worker who is there at court.  Thank you. 

44Finally, pursuant to s.6AAA of the Sentencing Act, the sentence and non-parole period I would have impose but for the plea of guilty, it is a three year sentence, with a two year non-parole period.

45The formal court orders will be emailed to the court officials and at Bairnsdale and you will be taken into custody immediately. 

46First of all, Mr O'Doherty, was there anything that you needed to add?

47MR O'DOHERTY:  No, Your Honour.  No.  No.

48HIS HONOUR:  Secondly, Mr Patton, anything you need to say?

49MR PATTON:  No, Your Honour.

50HIS HONOUR:  Thanks very much for your attendance and for your assistance. 

51I will cut the link and if there is any difficulties at the Bairnsdale Court end, notify my associate immediately. 

52MR PATTON:  If Your Honour pleases. 

53HIS HONOUR:  Just if you - we are going to - my associate will send the order straightaway to Bairnsdale, so the custody officers should have the order within minutes.  Thank you.  Yes, thanks. 

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