Director of Public Prosecutions v Rocha (a pseudonym)

[2020] VCC 1865

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00894

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARY ROCHA (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	26 October 2020
DATE OF SENTENCE:	23 November 2020
CASE MAY BE CITED AS:	DPP v Rocha (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2020] VCC 1865

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. Grant	Office of Public Prosecutions
For the Accused	Mr J. McGarvie	Stary Norton Halphen

HIS HONOUR:

Introduction

1Mary Rocha[1], you have pleaded guilty to two charges.

[1] ‘Mary Rocha’ is a pseudonym.

2The first charge is you dishonestly obtained a financial advantage for yourself and another person, David Maynard, by deception.  The amount of the deception is $27,100.  The deception consists of you falsely representing your authorisation to transfer monies in one bank account to two other bank accounts.  These transactions occurred between 29 December 2015 and
11 January 2016, a period of thirteen days.

3The second charge is you dishonestly obtained property belonging to Westpac Banking Corporation, intending to permanently deprive the bank of the monies and did so by deception.  The property was money totalling $104,969.  Again, the deception is the false representation of your authority to withdraw monies from a bank account.  In both charges, the account belonged to Ethel Marion Haines.  These transactions occurred over nearly a year between 21 March 2016 and 20 February 2017.

4Both charges are what are called 'rolled up charges', that is, each charge comprises a number of offences of the same type occurring between specified dates.  You were committed for trial on 30 charges and, with your consent, they have become two.  

5Regardless of the 'rolled up' nature of the charges, you are charged with two individual offences for which the maximum penalty for each offence is the same, namely 10 years’ imprisonment.

Circumstances

6The circumstances are set out in considerable detail in the document entitled 'Summary of prosecution opening on plea', which is Exhibit A.  In addition, the indictment contains two schedules, A and B, which set out the various transactions, the subject of each charge.  For the first charge, there are 11 transactions while for the second, 24.

7Essentially, this is what happened.

8Between 2014 and 2017, Ms Haines was a resident at the aged care facility in Red Cliffs called Jacaranda Village.  During the period of your offending, she was 88 and 89 years old.  She died in 2017.

9Between 2006 and 3 November 2016, you worked at Jacaranda Village as an administrative assistant.

10The Chief Executive Officer of Jacaranda Village is Susan Lynch.  At some stage, Ms Haines complained to Ms Lynch that her neighbours were taking advantage of her.  Ms Haines sought legal advice and decided to execute a medical power of attorney and an enduring power of attorney.  Ms Lynch thought it would be prudent to appoint two donees for the sake of transparency.  As a trusted employee, Ms Lynch made the fateful decision to ask you.  You agreed.

11When one of the powers was executed in June 2014, Ms Haines had a passbook account and two term deposits.  As joint attorneys, both you and
Ms Lynch needed to sign documents, including those withdrawing monies from these deposits.

12The financial needs of Ms Haines were modest.  She would incur incidental expenses of about $200 per month.  A trust account was set up to pay for those expenses. From time to time, you went to the bank’s branch at Red Cliffs and withdrew $1,000 for the trust account.

13Over a period of nearly 14 months, between 29 December 2015 and
20 February 2017, you withdrew monies from her accounts and paid them into accounts you had set up.  You alone signed the necessary papers to do so.

14In July 2015, you closed both term deposits and transferred the monies to
Ms Haines’ passbook account, which by 30 July 2015, held $196,686.76.

15In March 2016, you used $80,000 from the passbook account to create two fixed term deposits in the name of 'The Estate of Ethel Marion Haines'.  Before the end of the term, in December 2016, you redeemed each term deposit and paid the monies back into Ms Haines’ passbook account.  The material does not explain why you engaged in these transactions.

16Meanwhile, on 29 December 2015, you opened a new account in Ms Haines’ name.  On six occasions, you transferred monies from her passbook account to the new account.  Then, between 29 December 2015 and 11 January 2016, you transferred monies from the passbook account to Mr Maynard’s account, directly or to his account via the new account.  These transfers constitute Charge 1.

17As I said earlier, the second charge encompasses your offending between
21 March 2016 and 20 February 2017.  There are 24 occasions in which you withdrew monies from Ms Haines’ passbook account.  They amounted to $104,969.

18On five occasions, you used withdrawal forms, previously signed by Ms Lynch in blank at your request. These forms resulted in withdrawals of $11,200.  These forms ultimately contained your signature as well.  On another 19 occasions, you signed the document to withdraw monies from the passbook account, totalling $93,769.  These documents contained only your signature.

19From Exhibit A,  you used the monies from the passbook account to make 14 deposits into your Commonwealth Bank account, two payments into your credit card account and one payment to Mr Maynard’s account.

20In late October or early November 2016, you resigned your employment from Jacaranda Village.  Since you took three months’ long service leave, I assume your resignation became effective after the period of leave.  Again, Exhibit A reveals that you made 11 withdrawals from the passbook account between
6 December 2016 and 20 February 2017.

21Ms Haines died on 24 February 2017.  Ms Lynch contacted a local solicitor to sort out her estate.  His investigations revealed the dissipation of her monies, leaving only $9,271.30 in her passbook account.  The solicitor reported the matter to the police on 19 May 2017.

22In September 2017, Mr Maynard was interviewed by the police.  On
28 September 2017, you were arrested and interviewed.  Apart from answering some questions, you declined to answer the rest.  It is fair to say you were unhelpful to the investigators.  In October 2017, Ms Lynch was interviewed. 

23By the end of 2017, you relationship with Mr Maynard ended.  He has since disappeared. 

Guilty plea

24This matter has taken a considerable time to reach this court.  Despite your arrest on 28 September 2017, you must have been released without charge.  For it was not until 8 August 2018 that you were charged with offences and summonsed to appear in the Magistrates’ Court.

25The charges were mentioned in court on three occasions.  On one occasion, there was an adjournment due to your ill-health through anxiety.  On
14 February 2020, a magistrate considered your charges too serious to be considered in that court.  The charges entered what is described as the 'committal or indictable stream'.  After a number of committal mention hearings and a change of your lawyers, on 21 July 2020, you pleaded guilty to 30 charges at another committal mention hearing and were committed to this court.

26Your pleas are conceded as early pleas of guilty.  The fact that you have pleaded guilty to two charges only reflects the consolidation of the earlier charges into them.  This prevents me from saying these pleas were at the earliest reasonable opportunity.

27Nevertheless, your pleas of guilty are evidence of remorse.

28They have avoided the delay and cost of a trial.  Any trial would have been relatively short given the small number of prosecution witnesses.  However, it relieves Ms Lynch from giving evidence.  She was interviewed by the police and, at least, at that stage, suspected of involvement in your crimes.  No doubt, reliving those events would cause her some difficulty.

29The pleas have entitled you to a reasonably significant discount on the sentences I would have imposed in their absence.

Criminal history

30You have no previous convictions or findings of guilt.  Your previous good character over many years stands to your credit.  The benefit of your good character is tempered by the fact of your good character and reputation enabled you to commit these offences.

Victim impact statement

31There is no victim impact statement.  Ms Haines died three years ago.  The Westpac Bank has compensated her estate for the monies taken by you.  At this stage, the bank is not seeking restitution from you.  

Personal

32You are now 52.  You are now living with your youngest daughter.

33You are the youngest of five children, two brothers and two sisters.  You had a very close bond with your father, but not with your mother, whom you describe as 'emotionally unavailable'.  Your father died in 2009 and you believe your mother indirectly contributed to his death by cancelling his private health insurance.  You have a good relationship with all, except one of your brothers and sisters.

34You completed Year 11 after what seems to have been a difficult time at secondary school.  You attended TAFE and completed a secretarial course.  Afterwards, you worked in various roles until starting as a cleaner at the aged care facility in 2006.  You transferred to administration at the facility until resigning in November 2016.  You now received Centrelink payments.  You would like to train as a drug and alcohol counsellor, but fear you cannot afford the cost of the course.  

35You have had three relationships.  The first resulted in your marriage and the birth of your three daughters, aged 23, 22 and 20.  Your husband drank and physically abused you.  You and your husband separated twice.  You did not divorce and he died in 2019.

36Your second relationship was with a man who committed indecent acts with two of your daughters and a friend of one of them.  The extent of the criminality is disclosed in the sentencing remarks in R v Thomas[2].  You separated from him immediately upon becoming aware of his offending.  He was sentenced to significant terms of imprisonment.  He was also a collector of child pornography, some of which was very bad.  He was charged with child pornography offences and sentenced to imprisonment.

[2] [2011] VCC 535UR.

37Your third relationship was with your co-accused in these matters.  You had known him since your early teenage years.  He proved to be a most unsuitable partner.  He threatened you and your daughters.  He assaulted you.  Some of his behaviour is described by your daughter, Lisa[3], in her letter dated 21 October 2020. She spoke of an instance where he forced you through a bathroom wall.  She also spoke of nine months of his stalking you, following the making of a family violence intervention order.

[3] ‘Lisa’ is a pseudonym.

38You have now separated due to his disappearance, following the laying of charges against him.  A warrant for his arrest has been issued.  His whereabouts are unknown.  You are afraid of him.

39You have now withdrawn from your community through the publicity about your offending.  You were once well known and liked in your community.  Each of your daughters, Diane[4] and Lisa, speak of your isolation.  I daresay it was the regard accorded to you that enabled you to commit the offences.  However, you assist with an online domestic violence support group.

[4] ‘Diane’ is a pseudonym.

Psychological treatment and assessment

Martin

40In early 2018, you attended a psychologist.  You saw her on three occasions.  She advised you she could no longer treat you.  It was not until 27 November 2019, that you saw another psychologist, Naomi Martin.  Your general practitioner referred you to her.

41Ms Martin and you explored your violent relationship with Mr Maynard and your involvement in these offences.  Her treatment included recovering your memories of the trauma and developing ways for you to manage the symptoms due to the trauma.  With these offences, you told her of your deep shame and regret.

42Unfortunately, Ms Martin retired from practice in Mildura.

43Ms Martin diagnosed you as suffering from agoraphobia, or a fear of being in an open, crowded or public space.  She traced its origins to about 2015 and related to the way Mr Maynard treated you.  The condition has left you very much housebound, not able to go to the letter box or to hang out the washing.  Ms Martin’s treatment focussed on managing your anxiety, which she describes as an initial step.  You have made some progress in exploring ways to expand your world, that is not too overwhelming.  Ms Martin considers you need further treatment.

Anderson

44Laura Anderson is a clinical neuropsychologist.  On 10 October 2020, she interviewed you at the request of your lawyers.  She took a detailed history and made a careful examination of your mental state.  She administered three tests, one examined depression, anxiety and stress and another, the post-traumatic stress disorder.  Using DSM-5, she diagnosed you as suffering from post-traumatic stress disorder and agoraphobia.  You also showed extremely high levels of depressive and anxiety symptoms.

45Dr Anderson says you have significant features of two other disorders, Dependent Personality Disorder and Borderline Personality Disorder, but does not diagnose them.  Nevertheless, it was the features of those other disorders which figured prominently in her assessment of you.

46It is clear your daughters have been sexually abused by one of your partners. It is also clear Mr Maynard was a controlling and violent partner.  Dr Anderson assumed those matters and correctly so. It led her to comment:

'[Your] ongoing trauma response and perpetual sense of fear for her own safety and the safety of her daughters, as well as her reduced sense of autonomy in those circumstances, contributed to her being unable to problem solve alternate solutions, other than comply with the direction of her ex-partner.  Additionally, it is proposed that the level of emotional detachment and dissociation in the context of experiencing prolonged trauma, whilst serving the primary purposes of psychologically protecting her from acute trauma-related distress, also facilitated her in being able to engage in behaviours that were so out of character for her'.

47Through the experiences of your romantic relationships, Dr Anderson sees you as deeply traumatised, perpetually afraid for yourself and your daughters, helpless and vulnerable to coercion.  She sees the need for intensive psychological treatment, even going so far as suggesting the involvement of NDIS.

48Although somewhat tentatively, Dr Anderson considers you a low risk of re-offending and a relatively good prospect for rehabilitation.  Her hesitancy stems from your need for psychological treatment, for at present, you are vulnerable to coercion and that vulnerability is increasing.

Discussion

49You explained these offences through the coercion of your then partner and your fear of him.  Given what I have heard and read, I accept that explanation.  The pervasive effect of your fear informs propositions 1, 2 and 3 of R v Verdins[5].

[5] (2007) 16 VR 269.

50Nevertheless, you abused the trust Ms Haines, her solicitor and Ms Lynch reposed in you.  In a sense, your position as a long-term and trusted employee of Jacaranda Village encouraged all three to trust you with the responsibilities of a joint donee of the powers under the enduring power of attorney.  The victim, Ms Haines, was elderly.  It was to protect her from the supposed activities of her 'neighbours' that the idea of a power of attorney emerged.  Your activities were disgraceful.

51The monies in the first charge and $950 of the second charge went into
Mr Maynard’s bank account.  The rest went into your bank account and credit card account, mostly into the former.  Although it is said Mr Maynard benefitted from much of the rest of the monies, you have also benefitted.

52Your dishonesty spanned nearly 14 months.  Although there were shuffling of monies into old and new accounts, it was all done through the same bank involving several branches, but mainly at Red Cliffs and Mildura.  I would not say you undertook a carefully calculated course of conduct.  Based on Schedules A and B of the indictment, there were 34 dishonest transactions overall.  Some of these transactions occurred while you were on long service leave, before the end of your employment with Jacaranda Village.

53Judging from the time between your arrest and charging, the investigation was protracted.  In these matters, they usually are.

54I agree that your previous good character has less impact in this case, because it was your character which saw you entrusted with the means to commit these offences.  If you enjoyed a poor reputation neither Ms Haines, her solicitor nor Ms Lynch would have acted as they did.

General deterrence, denunciation and protection of the community   

55The prosecutor relied on passages from the judgment of Charles JA in

[6] [1998] 4 VR 114 at 131-2.

[7] [2015] VSCA 120.

DPP v Bulfin[6] dealing with the importance of general deterrence as a sentencing purpose in these kinds of offences.  He also referred to the affirmation of those passages in Dyason v R[7].  That reaffirmation was important for two reasons.

56First, Parliament legislated to include s.5(4C) into the Sentencing Act 1991. For the purposes of your case, that sub-section is of the same effect today. Relevantly, it provides:

'…a court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a community corrections order to which one or more of the conditions referred to in sections 48F, 48G, 48H, 48I and 48J are attached'

57Second, the Court of Appeal delivered its guideline judgment in Boulton v R[8]. In Appendix 1, the court set out the guidelines in respect of community corrections orders.  Part 2 examined the purposes of sentencing by comparing sentences of imprisonment with community corrections orders.  In paragraphs 24 and 25, the court said:

'[24] In many cases, therefore, a CCO will enable all of the purposes of punishment to be served simultaneously, in a coherent and balanced way.

[25] Even in cases of relatively serious offences – which would previously have attracted a medium term of imprisonment, (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and, in some rare and exceptional circumstances, homicide) – the sentencing court may find that a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation'. 

[8] [2014] VSCA 342.

58Since Boulton’s case, Parliament has pared back the scope of the community correction order; nevertheless, the observations in paragraph 25 apply in your case. 

59Throughout the process of arriving at an appropriate sentence, I am aware in these 'white collar' crimes, general deterrence is significant.  Denunciation of your offending is equally important.  It runs hand in glove with general deterrence.  As I said, what you did to Ms Haines was disgraceful.  On the other hand, the extent to which the community needs protection from you is now very limited.  

60Your counsel submitted you had suffered from the media attention in a small country town.  I would not call Mildura a small country town, far from it. Nevertheless, this factor works for and against you.  It does highlight your offending in a way that would not occur in a very large city like Melbourne.  It has led you to suffer from a recognised psychological disorder. On the other hand, publicity is important where general deterrence is concerned. As Howie J said in the NSW case, R v Wilhelm[9]: 

'Deterrence is an important part of sentencing, particularly when the sentence of the offender will probably receive a degree of media attention.  Therefore, he is a suitable case for general deterrence because so very frequently, the court imposes deterrent sentences upon people where that deterrence is of a theoretical nature rather than of a real effect'.

[9] [2010] NSWSC 376 at [30]. Cited in R v Mauger [2012] NSWCCA 51.

61On balance, the effect upon you has been disproportionate, leading as I say to you, suffering from a disorder.

Specific deterrence

62In one sense, there is a little need for specific deterrence for I doubt whether you will ever be given a position of trust where money is concerned.

63More importantly, so long as you live in or about Mildura, your shame will act as a powerful deterrent.  As your daughter, Diane, noted:

'These charges have extremely impacted Mum’s reputation.  Her friends don’t speak to her, which has resulting in Mum never leaving the house.  She is too anxious she will bump into someone who has read the paper about her charges'.

64Your unwillingness to leave your home has reached the level of a recognised psychological disorder.

65Specific deterrence is not an important factor in your case.

Rehabilitation  

66I consider your prospects of rehabilitation are excellent.  You have not offended since 2017.  You are remorseful for your offending.  Your brother and sister note your shame and Diane, your great remorse.  For you, this translates into a determination not to re-offend. Your rehabilitation can be assisted by conditions of a community correction order.  

Sentence

67I have had regard to the pre-sentence report prepared by a community corrections officer.  I propose to make a community corrections order in respect of you for a period of two years and three months.  Apart from the core conditions, I propose conditions relating to:

'(a) Performing 200 hours unpaid community work;

(b) A treatment and rehabilitation condition involving mental health      assessment and treatment'.

68I will order that all of the hours satisfactorily undertaken for treatment and rehabilitation, are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.

69In imposing the condition relating to unpaid community work, I note the current suspension of community work programmes, due to the government’s response to COVID-19.  Given the current success in combating the spread of the virus, both in the Melbourne and the metropolitan area and regional Victoria, I doubt the suspension will continue long enough to render the condition pointless.  If I thought otherwise, then the appropriateness of the community corrections order, as a sentencing option, is markedly reduced in your case, for unpaid community work represents a significant part of the punitive aspect of the order.

70I might just pause.  I did not invite either counsel as to whether they wished to make any submission about the report of the community corrections officer.  Is there any submission either of you wish to make in light of what I have already said?

71MR GRANT:  Not in light of what Your Honour said, no.  Thank you, Your Honour.

72HIS HONOUR:  And the same applies to you Mr McGarvie?

73MR McGARVIE:  That's correct, Your Honour.  Not in light of what Your Honour said.

S.6AAA 

74HIS HONOUR:  Finally, if you had not pleaded guilty to these charges and were found guilty of them, I would have sentenced you to a community corrections order of three years with the same conditions except the number of hours of unpaid community work would have been 275.  In respect of the community corrections order that I am proposing to make, Ms Rocha, do you consent to me making such an order?  Mr McGarvie, do you want an opportunity to speak to your client before she answers that question?

75MR McGARVIE:  I don't think I do, Your Honour.

76HIS HONOUR:  So do I take it through you that she consents?

77MR McGARVIE:  She does consent, Your Honour.

78HIS HONOUR:  All right, well I will make that order then.  Are there any other matters?

79MR GRANT:  Your Honour, in relation to the Covid legislation that applies to the community corrections order, I think Your Honour needs to ask Ms Rocha personally consent in lieu of signing the order, because my understanding is that the oral consent of the person being sentenced that's - that then becomes the binding aspect of the CCO.

80HIS HONOUR:  All right.  Well you have no difficulty of that Mr McGarvie?

81MR McGARVIE:  No, Your Honour, no.

82HIS HONOUR:  Ms Rocha, I am speaking directly to you now.  You heard what I propose by way of a community corrections order, that is one that would last two years and three months.  It would have - apart from the core conditions which applies to every community corrections order, it would have two other conditions, one that you perform the 200 hours of unpaid community work over the period of the order and secondly, that you be subject to a treatment and rehabilitation condition involving mental health assessment and treatment.  Do I understand that you would consent to me making such an order?

83OFFENDER:  Yes I would sir.  Sorry.

84HIS HONOUR:  All right.

85OFFENDER:  Yes I would, Your Honour.

86HIS HONOUR:  No I heard you the first time.

87OFFENDER:  Sorry.

88HIS HONOUR:  All right, unless there is anything else, that is what I propose to do.

89MR GRANT:  As Your Honour pleases.

90OFFENDER:  Thank you.

91HIS HONOUR:  My associate will make arrangements for the signing of the order, won't you?

92ASSOCIATE:  (Indistinct words)

93HIS HONOUR:  All right, all right then.  All right, in that case, I will note the consent without you having to sign the order.  Ms Rocha, you will have to attend upon the community corrections service - I think it is in Mildura.  Yes it is in Madden Avenue, Mildura and you will have to put in your first appearance within 48 hours of today.  That means by 4 pm on Wednesday, this coming Wednesday, you must have gone to them and reported for the first time.  I dare say you can do so today, if you are able to or tomorrow, but you have to have put in your first appearance by 4 pm on Wednesday.  Do you understand?

94OFFENDER:  Yes I do, Your Honour.

95HIS HONOUR:  Mr McGarvie, the Corrections people will almost certainly ask for a copy of the reports that I have had regard to.  I think I have already provided to them in their making of the assessment, but if they ask me again, I am sure you would have no objection.

96MR McGARVIE:  No objection, Your Honour, and Your Honour's right, they were provided for the purposes of the assessment.

97HIS HONOUR:  Very well.  All right, unless there is anything else, I will adjourn this court briefly.  My next case is at 10.30.

98MR GRANT:  Your Honour pleases.

99MR McGARVIE:  The court pleases.

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