Director of Public Prosecutions v Pullin
[2020] VCC 31
•23 January 2020
| IN THE COUNTY COURT OF VICTORIA AT GEELONG CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-00622
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARK PULLIN |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 23 January 2020 | |
DATE OF SENTENCE: | 23 January 2020 | |
CASE MAY BE CITED AS: | DPP v Pullin | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 31 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – pervert the course of justice – obtain property by deception – breach of trust – deception of court – plea of guilty – remorse – mental health – no prior criminal history
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited: R v Buscema [2011] VSC 206; Boulton v The Queen (2014) 46 VR 308
Sentence: Community Correction Order for a period of three years
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr G Hevey | Office of Public Prosecutions |
| For the Accused | In person |
HER HONOUR:
1 Mark Pullin, you have pleaded guilty to one rolled-up charge of perverting the course of justice, which carries a maximum penalty of 25 years’ imprisonment; and one charge of obtaining property by deception, which carries a maximum penalty of 10 years’ imprisonment.
Circumstances of offending
2 The circumstances of your offending are set out in the agreed Summary of Prosecution Opening on Plea and I sentence you on the basis of the facts set out in that document. I summarise those facts briefly here.
3 You were involved in a not-for-profit organisation known as The Sweethearts Foundation Incorporated (‘the Organisation’) for approximately 20 years prior to February 2016. In fact, in 2015 and 2016 you were the treasurer and your duties included managing the Organisation’s financial accounts.
4 On 23 October 2015, you attended the Newcomb branch of the Bendigo Bank and withdrew $1,200 in cash from the Organisation’s bank account using a withdrawal slip (“the October withdrawal”). The withdrawal slip was signed by you and ostensibly co-signed by Ms Sandy Thompson, a manager and board member of the Organisation. In fact, you had forged Ms Thompson’s signature. This conduct is the subject of Charge 2.
5 On 17 and 18 February 2016 you made two further withdrawals, each of $2,500, from the Organisation’s bank account using withdrawal slips bearing your signature and Ms Thompson’s signature, which you had again forged (“the February withdrawals”). Mr Michael Fitzgerald, a board member of the Organisation, noticed the transactions and asked you about them. You claimed that they were payment for accounting services and that the payment had been erroneously processed twice. When asked why you forged Ms Thompson’s signature, you said that you “just did it, got it done”. Enquiries made of the accounting firm revealed no recent invoices to the Organisation.
6 In March 2016, an audit of the Organisation’s financial records was performed and several suspicious transactions were identified, including the October withdrawal of $1,200. A police report was made, and you were charged with multiple fraud offences.
7 At a mention hearing on 23 March 2017, you produced an invoice purportedly made out to “The Audio Guys” for $1,200 which appeared to exculpate you from the charges regarding the October withdrawal, and accordingly those charges were struck out. Subsequent investigations, however, revealed the invoice to be fraudulent.
8 At a further mention hearing on 21 April 2017, you produced a receipt purportedly evidencing a transaction of $5,000 paid in restitution of the two February withdrawals. You were sentenced in the Geelong Magistrates’ Court on the basis that you had made restitution. In fact, you did not make that payment until 31 October 2017.
9 Your production of a fraudulent invoice during the mention hearing on 23 March 2017, and a fraudulent bank transaction record during the mention hearing on 21 April 2017, is the conduct subject of Charge 1.
10 A joint victim impact statement by two of the Organisation’s officeholders detailed the disappointment flowing from the breach of trust, and the financial inconvenience and hardship that your offending caused.
Procedural history
11 You were interviewed by police on 27 March 2018. Aside from denying that you doctored the fraudulent invoice, you otherwise remained mute.
12 You pleaded guilty at a committal mention hearing on 29 March 2019, after a number of charges were withdrawn and other charges were rolled up. You represented yourself at the Magistrates’ Court hearings and at the plea hearing today.
Prior convictions
13 You have no prior criminal history. Your criminal history comprises two charges of obtaining property by deception, both of which were adjourned without conviction on 21 April 2017 in the Geelong Magistrates’ Court. Those charges comprise the context within which the offending the subject of this proceeding occurred.
Submissions
14 The prosecution submitted that your offending was serious and that it involved a degree of planning. However, it was accepted that you were having financial problems at the time. It was suggested that in April 2017 you need not have deliberately misled the court but could instead have simply told the prosecutor that the funds would be returned shortly. Your production of a receipt was a planned lie which had the effect of allowing you to obtain a bond without conviction for 12 months.
15 The prosecutor submitted that a jail sentence was the appropriate disposition but conceded that a combination sentence was within range. It was conceded that your plea of guilty, absence of offending until the age of 43, your poor financial position, and your psychological state were matters to be taken into account in your favour.
Personal circumstances
16 Your personal circumstances, which were elicited from your evidence in court, may be briefly summarised. You are now 46 years old. You have no prior convictions. You have been working full-time since January 2019 as a Manager in the education and training industry. You have a wife and two children aged 14 and 19. Your wife works part-time.
17 At the time your offending began, you were under great financial stress as a result of the failure of your education consulting business. You were also psychologically unwell as a result of this stress. You were being treated by your general practitioner for depression and were taking anti-depressant medication. You felt pressured by your then business partner to make a financial contribution to the business to keep it afloat and acted out of panic. Your offending in forging a signature, falsifying an invoice in the sum of $1,200, and producing a receipt for $5,000, when you knew that the funds would not be available for some time, occurred in that context. It took six months for you to save the $5,000 in order to repay it in October 2017.
18 Since May 2017 you have also been seeing a psychologist, Stavroula Surdich, on a monthly basis. You provided a report dated 17 January 2020 from her in which she indicates that you have discussed your offending in great depth and that you have shown “significant remorse and genuine anguish” for your conduct.
19 You tendered references from your employer, from two colleagues, and from a friend. A number of them speak highly of your dedication, support, reputation for integrity and remorse for your offending. You also provided a letter of apology to the Court accepting responsibility for your actions and expressing insight into the impact of the breach of trust on the victims. In court, you again expressed remorse for your offending and the shame it has brought upon you and your family. You also produced a bank cheque in the sum of $1,200. Once cashed by the Organisation, that will represent restitution for the amount withdrawn from the Organisation’s funds on 23 October 2015. You also sent an email to the Court indicating that in mitigation, you relied on the following matters: the absence of prior convictions; your early guilty plea; repayment of the monies; remorse; ongoing psychological counselling; your current stable employment; ongoing volunteering in the community; and minimal risk of reoffending. You indicated that you were seeking a non-custodial disposition and no conviction because of the potential impact of a conviction on your employment.
Analysis
20 Your offending in taking money from a voluntary organisation involves a breach of trust against a voluntary organisation in which you held a trusted position and which has caused distress, inconvenience and financial hardship to that organisation. However, the sums involved were relatively small. The rolled-up charge of perverting the course of justice is serious because it involves more than one act and because perverting the course of justice strikes at the heart of the administration of the criminal justice system. That is why the maximum penalty for that offence is one of 25 years’ imprisonment and why such offending would ordinarily necessitate a custodial disposition. The offence is broadly defined, however, and so may be committed in a wide range of circumstances, and the particular circumstances of each case inform the gravity of the offending. Circumstances which bear on the assessment of the nature and gravity of particular offending, and so upon the sentence to be imposed, have been identified as including, relevantly, the following:
(a) the consequences which the offending was calculated to avoid;
(b) the time for which the deception was maintained and whether it was actively repeated or persisted in, or merely allowed to continue;
(c) whether the offence was spontaneous or premeditated; and
(d) whether the deception resulted in the deception of the court or the creation of false public records and if so, the extent and consequences of that.[1]
[1]R v Buscema [2011] VSC 206, [6].
21 Judging by reference to those criteria, I consider that your offending was quite serious. However, your moral culpability for it was in my view substantially reduced due to your mental health problems requiring anti-depressant medication, in the context of severe financial stress from your failing business.
22 I note the following matters in mitigation. Firstly, your early plea of guilty is evidence of remorse and an acceptance of responsibility, and has saved the time and expense of a trial. In addition, through your psychologist, your referees, your letter to the court and your statements in court, you have expressed a great deal of remorse for offending which is clearly out of character for you. Secondly and importantly, until the age of 43 years, when you first offended, you had led a blameless life and one which included substantial involvement in voluntary activities. Thirdly, while your offending in relation to obtaining the sums referred to above occurred over a short period of three months, that and the remaining offending occurred in the context of severe financial and emotional stress and while you were on medication for depression. Fourthly, by production of a bank cheque in court in the sum of $1,200 you will, once it is banked by the Organisation, have made full restitution for the funds the subject of the charges. Fifthly, I consider that you have excellent prospects of rehabilitation and are unlikely to reoffend. I also note that it is now more than four years since you committed the first offence with which you have been charged. Finally, I note that you have expressed grave concerns about the impact that the imposition of a conviction may have on your employment, but the nature of your offending is such that a conviction must be recorded.
23 You have been assessed by Corrections Victoria as suitable to undergo a Community Correction Order (‘CCO’) with conditions of unpaid community work and mental health treatment. You were assessed as having a low risk of reoffending. It is clear from the authorities, including Boulton’s case,[2] that a CCO is a sentencing disposition available even in cases of serious offending, as it has punitive and rehabilitative functions capable of satisfying all of the relevant sentencing principles, including that of parsimony. The court is required to impose a sentence of imprisonment only as a last resort.
[2]Boulton v The Queen (2014) 46 VR 308.
Sentence
24 Would you please stand?
25 In all the circumstances of this case, I consider it appropriate to impose an aggregate sentence of a Community Correction Order for a period of three years with conditions of unpaid community work and mental health treatment.
26 In relation to the Community Correction Order, you will be required to complete 150 hours of unpaid community work, as well as mental health assessment and treatment. I direct that up to 100 hours of your participation in counselling and treatment may be credited towards hours of unpaid community work.
27 In addition to the conditions that I have specifically imposed, you must also abide by the terms that apply to all Community Correction Orders. These are: that you must not commit any other offences during the period of the order being enforced - that is, three years from today - for which you could be imprisoned, even if a court would not choose to impose imprisonment. You must report to and receive visits from a Corrections officer. You must report to the Community Correctional Services at Geelong within two clear working days, which will be 28 January 2020. You must not leave Victoria without first getting permission from a Community Corrections officer, and you must inform the Community Corrections Office of any change of address, where you live or work within 48 hours of that occurring. Finally, you must obey all lawful instructions from and directions of Corrections officers. Do you understand all the conditions I have imposed and the general terms that apply?
28 ACCUSED: Yes, I do, Your Honour.
29 HER HONOUR: Before you consent to the making of such an order, you must understand that contravening any condition attached to the Community Correction Order, except for a contravention of a direction of the Secretary, is itself an offence punishable by three months’ imprisonment. Contravention of a Community Correction Order also carries with it the prospect that you will be brought back before me and resentenced for the original offending. Do you consent in these circumstances to the imposition of the Community Correction Order?
30 ACCUSED: Yes, Your Honour.
31 HER HONOUR: Pursuant to section 6AAA of the Sentencing Act, I indicate that, but for your plea of guilty, I would have imposed a sentence of six months’ imprisonment.
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