Director of Public Prosecutions v Ross

[2014] VCC 1752

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-00052

DIRECTOR OF PUBLIC PROSECUTIONS

v

DEBRA ROSS

---

JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	15 October 2014
CASE MAY BE CITED AS:	DPP v Ross
MEDIUM NEUTRAL CITATION:	[2014] VCC 1752

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pickering
For the Accused	Mr P. Tiwana

HER HONOUR:

1Debra Ross, you have pleaded guilty before me to seven charges of theft.  The facts underlying your offending are as follows.

2At the time of the offences, which took place between 22 November 2005 and 12 September 2011, you were an employee of a company called Baronhurst Propriety Limited, which held the Europcar franchise in Dandenong and Frankston.  The director and co-owner of that company was Arthur Mermegas, for whom your husband had worked also from 1992, and with whom both you and your husband were personal friends.  Indeed he had assisted you with a loan in order to buy your home in Frankston in 1995.  From October 2002 you worked as a rental sales officer then manager at the Dandenong branch, and it became clear on the plea that, and this is of some importance, that you worked there on your own.

3In August 2011 Mr Mermegas was contacted by the Westpac bank regarding a number of unauthorised transactions on the business account.  Refunds had been made without corresponding sales and he was provided with a list of those transactions in September 2011 showing about 50 transactions of $350 each being paid into two credit card accounts.  Mr Mermegas showed this to you and asked you to investigate but you did not do so.  Mr Mermegas was then provided with a further list which he confronted you with on 23 September 2011 when you admitted you had been refunding the amounts into your own credit card accounts.  At this meeting you told Mr Mermegas you took the money to help your mother, who was under financial pressure.  Mr Mermegas then met with you on two further occasions after getting further information from Westpac about other irregularities going back to 2009, during which you made further admissions about paying money into your own accounts.

4You made some admissions but essentially denied refunding money into your accounts in 2010, or in years before that.  You resigned from the company on 20 October 2011 and signed a letter acknowledging that you had been taking money from the business account and paying it into your own accounts.  You agreed to repay the money which was then believed to be owed and signed an agreement with Baronhurst to repay $180,000 via a mortgage taken over you and your husband's home.  Mr Mermegas, however, continued his investigations and decided to conduct an audit of the company accounts.  He was able to do this because you gave him a power of attorney allowing him to investigate your bank records from Westpac and the National Australia Bank.

5Ultimately the investigation revealed that between 22 November 2005 and 12 September 2011 you had removed a total of $483,530.37 via 1342 dishonest transactions in that period.  Mr Mermegas contacted police on 8 June 2012.  You were not interviewed until 18 July 2013 where you conducted what I regard as an entirely cooperative record of interview agreeing that you were in a position of trust and not requiring police to go through each of the transactions, stating that you had no right and saying from the outset that you were guilty of all the thefts that had taken place.

6In the interim, following your resignation from your position with Mr Mermegas, you and your husband organised, against legal advice, to sell your home and to sign the proceeds to Mr Mermegas in repayment of the debt, and the two of you also forwent holiday and long service entitlements.  Overall, via these means, you were able to pay back an amount of about $108,000 to $109,000 of the moneys that you had stolen.

7Your husband lost his job as he was dismissed from his position with Mr Mermegas in June 2013, about the time that you were interviewed by police.  He has retrained as a personal carer and you have obtained work with Hudsons Coffee bar in Frankston.  I now turn to your personal circumstances.

8You are 52 years of age and have no previous criminal history.  You grew up in a very difficult family, your father being an alcoholic who was physically violent to you, and then sexually violent in your mid-teen years.  You told your mother, who did not believe you, and this forced you to leave home when you were 17, and essentially you continued looking after yourself until you finally married.

9I accept that you have been employed on virtually a full time basis since, except for time taken off in order to care for your two daughters, who are now aged in their twenties, up until the time that you resigned from Mr Mermegas' employ.  Thereafter followed an unfamiliar period of unemployment, when you obtained the job that you now hold with Hudsons.

10Neither you, nor your husband, have ever earned a great deal of money.  I was informed that your annual wage at Europcar was in the region of $42,000, and your husband did not earn a great deal more than that.  The only asset that you had after many years of work was the family home, which was fairly heavily mortgaged, and which was ultimately sold in an attempt to repay the debts.

11Fortunately for you, you married well, if I can put it that way.  You have a longstanding, very happy relationship with your husband, who continues to support you.  I received a letter written by him; it is quite clear from that letter the love and regard with which he holds you.

12He wrote at some length about the great difficulties you had with your own parents, and indeed the difficulties he himself experienced with them, referring particularly to a period of time where they came to live with you, which was extraordinarily generous in the circumstances, but where they were then asked to leave following some unacceptable behaviour by your father.  Of particular concern, obviously to you, would be that eventually your mother did admit to you that she believed your allegations of sexual abuse at the hands of your father, and that she believed he would be perfectly capable of behaving in that way.

13I received a psychological report from Dr Aaron Cunningham dated 10 October 2014.  It was Dr Cunningham's view that you had developed a post-traumatic stress disorder following the sexual abuse by your father, and it is well known to this court that post-traumatic stress disorder is an insidious, difficult to treat and longstanding disorder, but the symptoms of which were effectively able to be managed by you because of your marriage to such a supportive partner.

14However, in 2002 you were the subject of an armed robbery carried out on the Europcar premises in Frankston, which you manned alone.  The circumstances of that crime were that you were approached from behind by a man, something was stuck in your back, you were threatened and moneys were taken.

15Thereafter you suffered a great deal of distress, there was an amount of suicidal ideation, sleeplessness, enormous fear, problems with isolation and indeed you also attended upon a psychiatrist for a six month period. No doubt with the best intentions, but unfortunately, both Mr Mermegas and your husband were of the view that it would be best for you to return to work, although this was against the advice of your psychiatrist, and indeed against your own wishes.

16You thereafter returned, but in his letter to the court your husband noted that - and this is in the aftermath of the armed robbery and your return to work:

"Debra's behaviour had kept changing all the time.  Threats to do harm to herself, would disappear in the car, outrages of temper; this went on for quite some time.  Debra was calling me from the Dandenong branches, I was at Frankston branch at the time, crying and screaming that she was there by herself and just wanted to leave."

17After that you were placed on antidepressants.  Your husband stated:

"Debra has always, since the robbery, been very withdrawn and not the happy, carefree person that she used to be."

18It was the view of Dr Cunningham that the armed robbery in 2002 acted as a trigger to your post-traumatic stress disorder, so thereafter symptoms which had not emerged did emerge and remained untreated.  Apparently you coped with this for some time but met a friend who gave you what she called 'happy pills', which cost $50 each, and they alleviated the symptoms of stress and depression that you appeared to be undergoing for about a two year period.  You were then, it seems, placed on antidepressant medication.

19Dr Cunningham was unable to directly state that your post-traumatic stress disorder had a causative effect, that is caused you to offend in the way that it did.  However, I do accept it had some part to play, although I could not put it as high as a causative effect, and I do this on the basis of Dr Cunningham's report.

20He stated that it was his view that your offending occurred in the context of your untreated post-traumatic stress disorder and abuse of prescription pills, and in that context you would have an impaired ability to cope with further stressors.  He stated:

"She could not provide a reason for her offences but stated that she was abusing prescription medication at the time."

21It also appears that you were harbouring some anger, probably towards those persons who had misguidedly urged you to return for work.  It was Dr Cunningham's view that if you were treated for post-traumatic stress disorder then the likelihood of you offending in this way again would be significantly reduced.  In my view that means that even though it could not be rated as high as causation Dr Cunningham is certainly saying that your post-traumatic stress disorder did have some part to play in the offending.

22Of particular concern to this court is that it is quite clear from Dr Cunningham's report that any term of imprisonment would weigh more heavily upon you compared to another prisoner because of the post-traumatic stress disorder, and further that it would have a significant adverse effect on your mental health.  He stated:

"This is due to the likelihood that the stress of a term of imprisonment would aggravate Mrs Ross's hypervigilance and suicidal ideation."

23I do accept that this is behaviour, notwithstanding a course of behaviour that continued over years (and I note that the frequency of it accelerated rapidly particularly in the last couple of years), quite outside the way you had otherwise lived your life until your mid-forties.

24I accept that you are supported by a law abiding and very loving husband, that your family is a law abiding, responsible and contributing family in the community, and that ordinarily is a family that would never expect to see a member of it before the courts, as you have been.  I accept you are extremely remorseful for your offending.  I regard your cooperation with police, as well as your early plea of guilty, as a strong indication that it is not simply a reaction to the situation that you find yourself in, but extends to remorse for your actions.  I am fortified in drawing this conclusion, both by Dr Cunningham's report and his observations of your remorse, and the letter of your husband.

25As I have said, I am also satisfied that the post-traumatic stress disorder did have some part to play in your offending.  The problem that this court faces is the amount of moneys taken and the period of time over which the offending occurred are such that it is not possible, with the best wish in the world, to hand down any sort of disposition which does not contain an element of imprisonment to be immediately served.  Ordinarily someone in your position, Mrs Ross, could expect a great deal more imprisonment than that which I am going to impose upon you, but in the circumstances I do not see that any court could do anything other than impose a disposition which contains, partially, a sentence of imprisonment.  Certainly I accept that you and your husband have done everything that you can in order to pay back whatever moneys you can to Mr Mermegas.

26The offending had, I accept, a very adverse effect upon Mr Mermegas, as was evident from his victim impact statement in which he stated that your offending had caused him to change the way he perceived people, he has lost trust in those in the work environment, that he no longer feels he can be the open person that he was.  He described the offending as "A very hurtful experience for me and my family."  He stated:

"Over the years that Debra and her husband were employed I have helped them in many ways to thank them for their work commitment."

27It is perfectly clear as well that the moneys that you took had a ripple effect, if you like, not just emotionally insofar as Mr Mermegas was concerned, but in terms of the audit cost, which I accept was probably kept down by his employment by those he employed to do the work rather than an outside source, and that there is an interest bill relating to the money that was taken which he has now replaced, presumably by way of loan, which he says will ultimately be over $200,000.  In his victim impact statement he said he was lucky that the business was forced into liquidation in that period.  He stated:

"I was able to keep afloat by using other assets owned."

28The courts traditionally take a very severe view of a course of fraudulent conduct undertaken by an employee in a trusted position, and this you absolutely were.  It is quite clear in these sorts of cases that the courts have to impose a disposition which sends out a message to the community that this sort of behaviour will not be tolerated, and that others who engage in it can expect to be dealt with sternly by the courts.

29I do not find that you require to be dealt with for what is called specific deterrence, that is a sentence which teaches you a lesson about your behaviour.  I have no doubt that you, as I have said, are extremely remorseful, and I would be extremely surprised if a court ever saw you before it again, but principles of just punishment and general deterrence dominate the sentencing exercise before me.

30However, because of the strong mitigating factors which I have listed, that is an early plea of guilty, my acceptance that your extreme cooperation with police, and indeed with Mr Mermegas, ultimately, are indicative of remorse by you, and it seemed to be generally accepted at the Bar table that you were not entirely clear as to how much money you had taken or how often you had engaged in removing the moneys which should have been paid to the company.

31I accept that you have made what recompense that you can, you have no prior convictions, and I accept that this offending was committed in the context of an untreated mental illness which had been reactivated by the armed robbery committed upon you.

32Finally, there is an issue of delay.  Mr Mermegas went to police in June 2012 and you were not interviewed until June 2013, and there has been a delay in this matter being dealt with which has included a delay in it being heard within this court.  In taking all those circumstances into account I therefore sentence you as follows.

33On Charge 1, you are sentenced to one months' imprisonment.

34On Charge 2, you are sentenced to four months' imprisonment.

35On Charge 3, you are sentenced to four months' imprisonment.

36On Charge 4, you are sentenced to six months' imprisonment.

37On Charge 5, you are sentenced to six months' imprisonment.

38On each of Charges 6 and 7 I am going to place you, with your permission, on a Community Based Order for a period of two years.  The base sentence will be the sentence imposed on Charge 5, that is six months, and I order that you serve one month on each of the sentences imposed on Charges 2, 3 and 4, that they be imposed and served cumulatively to the sentence imposed on Charge 5, and to each other, giving a total effective sentence of nine months.  Is that the way I do it Mr Pickering?  That I order that the Community Based Order in relation to Charges 6 and 7 do not commence until a certain date?

39MR PICKERING:  Your Honour, I had to look this up yesterday because my friend and I were trying to sort out the same question.  The explanatory memorandum to the new legislation says that the Community Corrections Order is to be served at the end of any parole period, if a parole is granted, otherwise it's the end of any period of imprisonment.  So if you were to order, in this case, nine months to be served, then it would commence after the nine months.

40HER HONOUR:  All right then.  Well that's the way in which I - yes.

41MR PICKERING:  So therefore as I understand what Your Honour's just said is that therefore Charge 1 will therefore be concurrent.

42HER HONOUR:  Yes.

43MR PICKERING:  And then Charges 2, 3 and 4 will have one ‑ ‑ ‑ 

44HER HONOUR:  Two, three and four, one month of each will be served.

45MR PICKERING:  On top of Charge 6.

46HER HONOUR:  Six, for which she's receiving six months.

47MR PICKERING:  Which will make nine months, and then a Community Corrections Order to commence at the conclusion of the sentence.

48HER HONOUR:  Conclusion of that nine months in relation to each of Charges 6 and 7.

49MR PICKERING:  Yes, Your Honour.

50HER HONOUR:  Mrs Ross, I need to say this to you, please stand.  I can only place you on a Community Corrections Order with your permission.  There are core conditions in relation to a Community Corrections Order.  It will not commence until you have served the nine months and then you must report to the appropriate Community Corrections office within two days of being released from prison.

51Whilst you are on the order you must not commit any offence punishable by imprisonment in or outside of Victoria, you must report to and receive visits from the Community Corrections office, you may not leave Victoria without the permission of the Community Corrections office, you must obey all lawful directions and instructions of the Community Corrections office, you must inform the Community Corrections office of any change of address or employment within 48 hours of that change.

52I am also going to order special conditions that in the two years you are on the Community Based Order you perform 300 hours of unpaid community work.  I am also going to order that you be assessed and treated for any mental health issues.  Are you prepared to be placed on that order?  Thank you, please have a seat.  I am going to organise that a copy of Dr Cunningham's report goes down to the cells, please, with Mrs Ross and is able to be given to the jail authorities. 

53I do not see the need for a forensic procedure order at this stage.  This was not the sort of offending that would have assisted in any event and because of her prior convictions I do not see that it is appropriate.  I am, however, going to order that compensation in the amount of $374,112.49 be paid to Baronhurst Pty. Ltd. trading as Europcar.

54I thank counsel for their assistance in this matter.

55MR PICKERING:  Your Honour, just two minor matters.  One is with regards to the Community Corrections Order is Your Honour also ordering supervision?

56HER HONOUR:  No. 

57MR PICKERING:  No, that's all right.  I just wanted to check because it was in the report.

58HER HONOUR:  No, I know it was recommended.  I do not see the need for it.  I cannot see that Mrs Ross is going to present as some sort of - keeping appointments, doing what she should do under the Community Corrections Order. 

59MR PICKERING:  I understand, Your Honour, and the other question was I believe I have to seek the 6AAA ‑ ‑ ‑ ?

60HER HONOUR:  Yes, pursuant to s.6AAA had you not pleaded guilty I would have sentenced you to a term of imprisonment of three and a half years and ordered a two year minimum.

61MR PICKERING:  If Your Honour pleases.

62MR TIWANA:  Thank you.

63HER HONOUR:  Thank you.  Yes thank you, we will get you to sign that please, Ms Ross.  I should state in relation to my sentencing remarks that I am satisfied that Elements 5 and 6 of Verdins case have particular application in this matter.  Thank you. 

64I have signed that.  Thank you very much, we will stand down. 

‑ ‑ ‑