Director of Public Prosecutions v Ross
[2021] VCC 249
•12 March 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01602
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JENNA ROSS |
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JUDGE: | HIS HONOUR JUDGE C RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 February & 25 February 2021 | |
DATE OF SENTENCE: | 12 March 2021 | |
CASE MAY BE CITED AS: | DPP v Ross | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 249 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: obtain financial advantage by deception - $165,133.67 - employed as a management assistant by Suncorp - anxiety and depression and as a result had extremely low self-esteem – substantial partial restitution
Legislation Cited: Sentencing Act 1991
Sentence: Community Correction Order for a period of 3 years with conditions
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J Fallar | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr S Tovey | Fayman Lawyers |
HIS HONOUR:
1Jenna Ross, on 9 February 2021, you pleaded guilty to a rolled-up charge that between 9 May 2014 and 13 January 2018, you dishonestly obtained for yourself a financial advantage, namely the payment of $165,133.67 for gift cards, travel and accommodation by representing to Suncorp that the moneys were for Suncorp business expenses.
2Attached to the indictment was a schedule that set out each of the transactions that make up the sum of $165,133.67.
3Tendered as Exhibit A and read aloud in Court was the prosecution opening for plea. At the time of your offending, you were employed as a management assistant by Suncorp. You were employed by Suncorp from 4 April 2014 until 21 March 2018. During the period of your employment you were aged between 29 and 33 years and you are currently 35 years old. You worked for the Head of International Intermediaries and supported the Head of Commercial Intermediaries. You were responsible for providing administrative support, facilitating communications, and managing your superiors’ diaries amongst other duties. Those for whom you worked reported to the Executive General Manager Intermediaries.
4In summary, your two superioris were provided with an American Express corporate credit card for business related expenses. The cardholder was expected to reconcile the expenses on their credit card by using a software program called iExpense. You performed this reconciliation on behalf of your superiors. You landed on a weakness within the accounting system which was that at the time of reconciliation you could add to the expenses on each of the credit cards and you did so by way of purchasing gift cards and domestic and international travel and accommodation and these expenses would simply be approved.
5Over the period 9 May 2014 to 9 January 2018, you obtained from Gift Cards Direct Pty Ltd 131 gift cards valued at $86,250. You activated these cards by using your personal email accounts.
6Over the period 25 November 2015 to 13 January 2018, you purchased travel, air fares and accommodation for yourself and friends to the value of $78,883.67.
7I will not set out each of the transactions contained within Schedule A to the indictment as they are set out in paragraphs 10 to 38 at pages 5 through to 19 of the Crown opening. However, it was an aspect of your dishonesty that you would nominate persons’ log-in details to approve the reconciliation reports related to your offending. Likewise, you would nominate employees of Suncorp as the persons who travelled on the various flights that you booked and were accommodated at the various hotels as part of the travel.
8Your travel included trips to America with a male companion as well as interstate flights with female friends some of whom were referees for you on your plea.
9In discussion during the plea it became apparent that the transactions set out at paragraphs 33, 37 and 38, being a trip to Los Angeles and accommodation, did not take place. While each transaction constitutes a financial advantage to you, no actual benefit accrued to you.
10An investigation was instituted by Suncorp and your two superiors were investigated and subject to internal recorded interviews in respect to your frauds. You too were interviewed on 1 March 2018 and told the Suncorp investigators:
· You completed the monthly expense reports on behalf of your superiors;
· You could not provide an explanation why charges for personal travel and accommodation appeared on your superiors’ corporate cards;
· You believed you had paid for personal accommodation on your own credit card;
· All gift cards purchased on your immediate superiors’ corporate cards were at the request of another party but you could not advise who;
· You would request your superior to sign all manual payment request forms;
· You had never used the gift cards for personal use; and
· When provided with evidence that you had used gift cards for personal use, you said you must have mistakenly used a gift card that you had ordered for Suncorp as opposed to using a gift card your parents gave you from Gift Cards Direct Pty Ltd, the service provider to Suncorp.
11On 21 March you emailed your resignation to Suncorp.
12On 8 February 2019, you attended Melbourne West Police Station for arrest by appointment. You were interviewed under caution and answered “no comment” to questions asked of you. You were released pending summons. You were charged on 7 November 2019 and the matter resolved on 2 December 2020. Accordingly, there has been some three years’ delay from the initial internal Suncorp investigation to the date of your plea. Of this period of three years, almost two years was taken up by the time from the internal Suncorp investigation to charges being issued on summons against you.
13You are a person without prior or subsequent conviction.
14Mr Tovey of Counsel who appeared on your behalf tendered as Exhibit 1 his outline of submissions, as Exhibit 2 a psychological report of Mr Patrick Newton dated 23 January 2021, as Exhibit 3 a psychological report of Judith David dated 20 January 2021, together with her supplementary report also dated 20 January 2021 which became Exhibit 4. In addition, Mr Tovey tendered 11 character references that became Exhibit 5. Your plea was adjourned part heard and on the return date Mr Tovey tendered as Exhibit 6 the report of Ian Macmillan, psychologist, dated 18 January 2003 and an extract from the Herald Sun, the headline of which reads “St Bedes/Mentone Tigers scoundrel Jenna Ross pleads guilty to Suncorp credit card fraud” which became Exhibit 7 on the plea.
15Mr Tovey submitted you are 35 years of age and a first offender who has pleaded guilty at an early stage in the proceedings. He submitted that the contents of the references universally describe a young woman with the reputation of being a selfless community-minded and generous person. Further, he submitted that it was out of character for you to commit an offence of the kind to which you have pleaded guilty and it was contended that as a result of your conduct being out of character it was unlikely to be repeated. To support this submission Mr Tovey relied on the contents of the references, Exhibit 5. In addition Mr Tovey relied upon the references to demonstrate your remorse as you were consistently described in them as remorseful, ashamed and embarrassed in respect to your offending.
16As evidence of your attitude of being community-minded, reliance was placed upon your contribution to the St Bedes/Mentone Tigers Football Club where you have been a tireless and valued worker for nearly 15 years.
17It was submitted that based on the report of Mr Patrick Newton that you had struggled for many years with anxiety and depression and as a result had extremely low self-esteem. Further, it was submitted, your low self-esteem, a product of your depression, was the key driver to your offending conduct because you experienced a strong desire to be liked and valued and respected by your peers.
18Mr Tovey relied upon the delay in bringing about the prosecution and that the prosecution of you has weighed heavily upon you and affected your mental health. In addition, Mr Tovey submitted that you had not reoffended since the commission of your crime, you had found a new job and most importantly you had committed yourself to repaying Suncorp and repaid over $65,000 by way of restitution and intended to repay all of the moneys owed by you to them.
19Mr Tovey’s ultimate submission was that a Community Correction Order was the appropriate disposition in all the circumstances having regard to your plea of guilty, excellent prior character, remorse, efforts to repay your victim, your psychological profile and that your risk of reoffending was remote. As well, he relied upon the opinions of Mr Newton and Ms David to found a submission that your psychological state would deteriorate if incarcerated due to the very stressful environment in prison and further that a term of imprisonment would be more onerous for you than it would be for an offender who was a person in normal health owing to the diagnosis made by Patrick Newton that you suffer from a chronic depressive disorder.
20You are 35 years of age and when you consulted Mr Newton, psychologist, you described your early years in positive terms. You have two elder sisters and grew up in Melbourne’s south-eastern suburbs. In 1995 when you were aged about 10 years, you suffered a severe fracture to your left femur. This injury required extensive rehabilitation including seven surgical procedures over the ensuing four years. You missed a considerable amount of schooling which in Mr Newton’s opinion disrupted both your studies and the development of your friendships. You attended Kilbreda College (Mentone) for your secondary education. You instructed Mr Newton that you experienced some difficulties with your social circle as a result of the disruption to your life as a result of the surgical procedures that you underwent but were not the target of bullying or harassment. You progressed through school without repeating any years and obtained good marks when you completed your Year 12. You instructed Mr Newton that you wanted to study sports administration but did not obtain a sufficiently high score to do so. You did not undertake alternative tertiary study but rather took up an administrative role with a local swim school. Later you completed some TAFE certificates in administration but did not attempt tertiary study. Your work has primarily been in administrative roles of the kind that you performed whilst you were offending.
21You instructed Mr Newton that there is a significant family history of anxiety and depression and that during the period of your offending, you regularly experienced dysphoric rumination which at times included suicidal thoughts. You instructed Mr Newton that in 2017 you took an overdose of medication but forced yourself to vomit shortly after swallowing the pills. You did not seek medical assistance after this incident. Indeed, you did not seek any form of psychological or psychiatric help prior to your offending being detected. Shortly after your offending was detected by Suncorp, you consulted your general practitioner who prescribed you the antidepressant Zoloft and the anxiolytic Valium. You continue to take these medications.
22You were referred to Ms David, clinical psychologist, by your general practitioner on 27 February 2018 and first consulted with her on 12 March of that year. You presented with moderate to severe symptoms of Major Depressive Disorder and generalised anxiety. You have continued to consult with Ms David and at present you are seen by Ms David on a monthly basis. Based on your instructions to Ms David that you had felt depressed and anxious for many years and that you felt worthless, she formed the opinion that you had suffered from mental illness for most of your life and that this mental illness was a contributing factor to your offending. Further, Ms David opined that your mental health issues would often make it very difficult for you to make helpful and rational decisions both at work and in your home life.
23Ms David opined that the likelihood of your offending in the future is extremely low. She described your current mental state as stable but opined that should you be imprisoned that your “psychological state would most definitely deteriorate due to the very highly stressful environment of prison.”
24At the time that you consulted with Mr Newton, you were preoccupied with the consequences of the prosecution that you were facing. You instructed Mr Newton that you felt ashamed and embarrassed and you demonstrated to him what he described as your perennial misgivings about your personal worth. Further, you were worried about the potential consequences for your future career options and for your life more generally.
25Mr Newton diagnosed you as suffering from a persistent depressive disorder (dysthymia). Mr Newton wrote that, “she has suffered significant mood disorder since her youth.”
26Mr Newton described you as a person of at least very high-average intelligence who has good general reasoning skills. Further, he opined that:
“ … the less demanding work that she has often undertaken would be likely to exacerbate her stress since it would be unlikely to provide her with sufficient cognitive stimulation and challenge. In turn, this is likely to have intensified her depression and work-related stress.”
27There appeared within both Mr Tovey’s written outline of submissions and Mr Newton’s report at paragraph 31 a reference to you experiencing difficulties in coping with interpersonal challenges within the workplace, that you lacked both the self-confidence and interpersonal skills to deal with these challenges assertively and so resorted to indirect and deceptive means to “even the score”. These references smack of revenge and on their face run contrary to the contents of Mr Newton’s report and the picture painted of you by your referees.
28During the course of submissions Mr Tovey put on your behalf that this reference to dealing with work difficulties and evening the score did not represent your state of mind at the time of your offending but rather was the realisation of your motive for offending after years of psychological treatment.
29Many of the matters relied upon arising out of the report of Mr Newton sat in stark contrast to the contents of the many references relied upon by your counsel and in particular that authored by your father who described you as an outstanding student. You were the school captain at St Marks Primary School, swimming captain at Kilbreda Secondary College and nominated by that school for the City of Kingston Young Achiever Award.
30As a result of the use by Ms Fallar of Counsel, who appeared on behalf of the Crown, of the contents of the various references relied upon by you, your plea was adjourned to 25 February for Mr Newton to be called for the purposes of cross-examination by the Crown. It was during the second part of the plea that Exhibit 6, the report of Mr Macmillan, psychologist, dated 18 July 2003 was tendered, which I was informed came into existence as a result of your personal injuries action arising out of the broken leg which you suffered at St Marks Catholic Primary School when you were aged 10 years.
31Mr Macmillan opined:
“In my opinion as a result of the accident in 1995 Jenna has experienced degrees of stress and depression over a period of time due to some uncertainty about her future, a curtailment of sporting activities which she enjoys with a subsequent lowering of self-esteem, reduced school performance (particularly in Mathematics) due to absences and curriculum dislocation, and feelings of inadequacy and lowered self-esteem in relation to aspects of dress and some social events. These feelings and outcomes have been complicated further by the period concerned falling across early adolescence when a positive self-image and growing self-esteem are quite critical.”
32On Thursday, 25 February, Mr Patrick Newton, forensic psychologist, was called. He swore that he had reviewed each of the character references relied upon by you that constitute Exhibit 5. He also examined the report of Mr Ian Macmillan, psychologist, dated January 2003, which he was not in possession of prior to his initial report. Further, he conducted a consultation with you to review your mental state. Having gone through this process, Mr Newton did not change his opinion expressed in his report of 23 January 2021 in any way. He opined that he did not believe that the material in the references was inconsistent with the findings that he made nor in respect of his diagnosis of a persistent depressive disorder. He opined it is not inconsistent with that diagnosis that you would continue engagement in a community sporting club, and he found this was consistent with other people he had worked with who had that diagnosis.
33Mr Newton swore that you keep your problems to yourself, that your friends are aware that there may be distresses in your life, but you do not disclose those matters to your friends in a fulsome manner. In short, you battle on providing support to your community through the St Bedes/Mentone Football Club.
34Mr Newton opined that the report of Mr Macmillan confirmed the history that he had been provided with and reinforced his findings in respect of you.
35Mr Newton referred to the publicity that followed your appearance on 9 February to which Exhibit 7 is directed. You were deeply upset by this publicity and consulted your psychologist, Ms David, to deal with the emotions that you experienced. Further you reached out to some of your closest friends and to your family for support. You also resigned from your position at a major hospital and as at the return date of your plea you were unemployed.
36Mr Newton referred to your attempted suicide and opined that it elevates your risk of future self-harm significantly and that it would be reasonable that precautions should be taken to ensure that no impulsive acts of self-harm were possible on your part should you be sentenced to a term of imprisonment.
37In respect to the effect of a term of imprisonment upon you, Mr Newton swore that it was clear that a person with a chronic depressive condition would experience more than the usual blow to their mental state should they be imprisoned. Further he opined that should you be imprisoned, that the psychological treatment which you have undertaken for years and intend to continue with will be interrupted and your progress delayed accordingly.
38When cross-examined by Ms Fallar on behalf of the Crown, Mr Newton explained that whilst to the outside world you may appear to be “doing a good job”, as a person with low self-esteem, you evaluate yourself as a failure despite objective proof to the contrary.
39I accept that your chronic depressive state was a contributor to your offending. However, there is no suggestion that it affected your ability to understand the wrongfulness of your conduct, I can give it but little weight in the reduction of your moral culpability.
40It is plain from the evidence of Mr Newton and the reports of Ms David that a sentence of imprisonment would weigh more heavily on you than it would on a person in normal health and that there is a serious risk of imprisonment having a significant adverse effect on your mental health.
41It is important to note that your involvement with the St Bedes/Mentone Tigers has had a significant and beneficial effect outside the normal running of that club. In 2015 a young football player became a quadriplegic. As a result, you organised and chaired the committee to raise funds so that the young footballer’s parents’ home could be renovated to accommodate his altered state. You, together with others, raised $58,722 in support of this cause. In 2018 and 2019 you conducted fundraising events raising money for “Maddy’s vision” which involved organising lunches, afternoon teas and business sponsorship and you, together with others, raised $30,240 for this cause.
42Until you resigned from your most recent position, you have been in constant employment since you were 16 years of age. You have worked as a swim teacher and administration manager and thereafter in administrative roles with a number of companies.
43In short, you pleaded guilty at an early stage in proceedings. There has been significant delay in this matter, and you have used that time productively to remain employed, seek psychological help and to contribute to the community. You have made substantial partial restitution. You have for 15 years or so been an active member of an amateur football club and have been central to its successful operation season to season. Over and above this contribution, you have raised substantial amounts of money in support of charitable causes. As a result of adverse publicity, you have lost your employment. As to this latter matter, it was inevitable having not informed your employer as to your offending, once they became aware of the nature and extent of your criminality, your position with them would have been untenable.
44The Crown submitted that the contents of the references relied upon by you run contrary to the opinions held by Ms David, Mr Newton, and Mr Macmillan. Whilst on its face there is some attractiveness to this argument, I am unable to accept it bearing in mind the sworn testimony of Mr Newton and the support that can be found for his opinions and diagnosis in the reports of Ms David and Mr Macmillan.
45Despite this, you offended over a long period of time. Your offending constituted a breach of trust. There is little doubt that the financial advantage gained by you was used for your benefit and the benefit of your friends and acquaintances with whom you sought to curry favour as a result of your low self-esteem and chronic depressive disorder.
46Mr Tovey on your behalf submitted that in all the circumstances a Community Correction Order was the appropriate disposition, whilst Ms Fallar on behalf of the Crown submitted that a combination sentence of imprisonment together with a Community Correction Order was the appropriate sentencing disposition in your case.
47Accordingly, I had you assessed for a Community Correction Order and you have been found suitable for such an order.
48Normally offending of this kind would be met by a term of immediate imprisonment. However, in the unusual circumstances that have been presented on your behalf I am of the opinion, that a sentence that might be described as merciful is an appropriate sentence in your case. Would you please stand?
49Doing the best I can, taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents, endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, with your consent, I sentence you to a Community Correction Order for a period of 3 years with conditions:
(1) you undertake 300 hours of unpaid community work;
(2) you undertake treatment and rehabilitation in respect of your mental health;
(3) you undertake treatment and rehabilitation by way of programs to reduce your risk of reoffending; and
(4) you be subject to the supervision of the Secretary of the Department or his nominee.
50Further, I direct that any time spent by you by way of treatment and rehabilitation in respect to your mental health be counted as unpaid community work. Are you prepared to enter into such a community corrections order?
51OFFENDER: Yes, Your Honour.
52HIS HONOUR: Pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to 2 years’ imprisonment with a non‑parole period of 15 months’ imprisonment.
53MR TOVEY: May it please the court.
54HIS HONOUR: Now - - -
55MS FALLAR: Your Honour, if I may confirm, is that CCO with conviction?
56HIS HONOUR: Yes.
57MS FALLAR: Thank you, Your Honour.
58HIS HONOUR: Now, Mr Kelly will bring the document to you for your signature and Mr Tovey, if you wish to approach the dock while that is being done, you are perfectly at liberty to.
59MR TOVEY: Thank you, Your Honour.
60MS FALLAR: Your Honour, may I just seek once the document has been signed that the usual warning in relation to the contravention of CCO be told to the accused? Thank you.
61MR TOVEY: Your Honour, my client has signed that community corrections order and by doing so agrees to be bound by the conditions set out in it.
62HIS HONOUR: I noticed. Ms Ross, would you please stand up? You have been sentenced with conviction to a community corrections order for a period of three years. It commences today and will end on 11 March 2024. You must attend at the Moorabbin Community Correction Services at Moorabbin Justice Centre, 1140 Nepean Highway, Highett, Victoria within two clear working days after the commencement of this order.
63Now, owing to the restrictions on the conduct of officers that perform the function of administering these orders, it is my understanding that that can be done by way of telephone and the telephone number is provided in the document that you will get a copy of. There are a number of - if you do not make that contact, you breach this order.
64There are a number of statutory conditions which are set out in the order but in addition to those, I have ordered that you must perform 300 hours of unpaid community work over a period of three years as directed by the regional manager. I order that all hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of unpaid community work condition. If you fail to comply with this order, the Secretary of Department of Justice may give you a direction to perform additional hours of unpaid community work in accordance with the provisions of the Sentencing Act.
65You are to be under the supervision of a community corrections officer for a period of three years. You must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatrist or treatment in hospital or residential facility as directed by the regional manager. You must participate in programs and/or courses that address factors relating to the offending as directed by the regional manager.
66Now, if you breach this community correction order, you will be brought back to a judge of this court who has the power to resentence you. In addition, a breach of this order is punishable by a maximum of three months' imprisonment. Could you make a copy of that please? Two. One for Mr Tovey for his solicitor's records and one for Ms Ross. Ms Ross, you may step out of the dock and sit behind your counsel.
67OFFENDER: Thank you.
68HIS HONOUR: Ms Ross, a word to the wise. Do not ever come back here.
69OFFENDER: Yes, Your Honour.
70HIS HONOUR: A copy of that order will be forwarded to the Crown by email, Ms Fallar.
71MS FALLAR: As the court pleases. Thank you, Your Honour.
72HIS HONOUR: We will stand down now.
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