Director of Public Prosecutions v Rossi
[2020] VCC 1471
•16 September 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-02148
Indictment No. J12918194.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROSA CATHERINE ROSSI |
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JUDGE: | HER HONOUR JUDGE MARICH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 May 2020, 25 June 2020, 24 July 2020 and 8 September 2020. | |
DATE OF SENTENCE: | 16 September 2020 | |
CASE MAY BE CITED AS: | DPP v Rossi | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1471 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – obtain property by deception (5 charges) – unauthorised access to police information (one charge) – perjury (two charges) – attempt to obtain property by deception (one charge)
Legislation Cited: Crimes Act 1958, s81, s314, s321M; Victoria Police Act 2013, s228; Sentencing Act 1991 (Vic)
Cases Cited:R v Boulton [2014] VSCA 342; Dyason v The Queen [2015] VSCA 210; R v Madex [2020] VSC 145; Brown v The Queen [2020] VSCA 60; Director of Public Prosecutions v Tennison [2020] VCC 343
Sentence: Total effective sentence of four years and six months’ imprisonment with a non-parole period of two years and four months. Section 6AAA declaration: Total effective sentence of six years and four months’ imprisonment with a non-parole period of four years and six months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P J Pickering | Office of Public Prosecutions |
| For the Accused | Mr B Walmsley QC and Mr I Lloyd | Condello Lawyers Pty Ltd |
HER HONOUR:
1 Rosa Catherine Rossi, you have pleaded guilty to an indictment containing five charges of obtaining property by deception, each of which carries a maximum penalty of 10 years’ imprisonment; one charge of unauthorised access to police information, which carries a maximum penalty of 600 penalty units or five years’ imprisonment or both; two charges of perjury, which carry a maximum penalty of 15 years’ imprisonment; and one charge of attempt to obtain property by deception, which carries a maximum penalty of five years’ imprisonment. A related summary matter of obtaining a financial advantage from the Commonwealth Services Delivery Agency, was uplifted into the hearing of the plea in mitigation of penalty, and you pleaded guilty to this charge. That charge carries a maximum penalty of 12 months’ imprisonment.
2 The circumstances in which you came to commit these offences are set out in the Summary of Prosecution Opening dated 1 April 2020, which was read into evidence at your hearing and tendered as Exhibit A. The prosecution also tendered a Victim Impact Statement prepared by Christopher Habel (Exhibit B), further particulars of the Prosecution Opening (Exhibit C), a Victim Impact Statement of James Dixon (Exhibit D), a Victim Impact Statement of Eloise Clarebrough (Exhibit E), additional sentencing submissions dated 23 July 2020 in response to the defence submissions (Exhibit F), and further submissions on plea dated 4 September 2020 (Exhibit G).
3 In addition to making oral submissions, your counsel relied on a defence plea book (Exhibit 1), a rent due table (Exhibit 2), a letter of prospective employment with Coles Supermarkets Australia (Exhibit 3), Supplementary Submissions dated 24 June 2020 (Exhibit 4), Additional Submissions on Sentence dated 24 July 2020 (Exhibit 5), further supplementary submissions dated 4 September 2020 (Exhibit 6), a Psychological Report dated 16 August 2020 (Exhibit 7), and the affidavit of Dr Peter Ng affirmed on 18 August 2020 (Exhibit 8).
4 I have had regard to each of those exhibited documents in formulating my reasons for sentence, as well as the matters developed in oral argument.
Circumstances of the offending
5 I understand that in April 2017, the Independent Broad-based Anti-corruption Commission commenced an investigation into allegations that you had been identifying vacant residential properties with the intention of using deception to take possession of those properties and make claims for adverse possession.
Charge 1 – Ayrey Street, Willaura
6 In April 2016, you noted a property at this address.
7 This property had been purchased by the owner, Tiffany Paul, in 2010. However, she had left the property vacant when she moved to Queensland to look after her ill son in 2013. The property then had a rates value of $50,500.00, and contained the owner’s personal possessions and furniture, as she intended to return.
8 On or about 18 April 2016, you engaged locksmiths to change the locks at the address. You did not inform the locksmith, Geoff Dunmore, that you were not the owner of the property. By changing the locks at this address, you committed Charge 1 on the indictment, of obtaining property by deception from the true owner, Tiffany Paul, by falsely representing to Mr Dunmore that you had a lawful entitlement to change the locks on the property.
9 On 21 April 2016, you prepared a document which showed that you intended to claim that the property was rundown and the garden overgrown, and that your company, Sweet Georgia Pty Ltd, had taken possession of this property in March 2016.
10 Documents were later seized by police, which showed that you used some of Ms Paul’s personal documents, including bank correspondence, employer letters and taxation letters.
11 On 19 October 2016, Ararat Rural City Council received a change of customer address form, falsely completed by you in the name of the owner, Tiffany Paul, providing your mobile phone number as a contact. On 14 December 2016, you instructed your solicitor to put a Landata alert on the property.
Related summary offence – obtaining financial advantage
12 Paige Richards and her partner, Philip Harrington, were your tenants at an address in Warranoke Street in Willaura.
13 In February 2016, you suggested to Ms Richards that she falsely notify Centrelink that the two were not living together and that they could then claim extra money from Centrelink, which would assist them to pay the rent due to you.
14 Between 8 October 2016 and 10 January 2017, you, Ms Richards and Mr Harrington agreed that they would use the address the subject of Charge 1, which was then vacant, to deceive Centrelink that Ms Richards had moved there. A lease agreement dated 5 October 2016 was found by police between Sweet Georgia Pty Ltd and Ms Richards, stating that Ms Richards was the sole tenant.
15 On 28 October 2016, Centrelink received a rent certificate from Ms Richards dated 19 October 2016, which stated that Ms Richards was renting from you the Ayrey Street property. The document was co-signed by you.
16 In consequence of the filing of the rent certificate by Ms Richards, she was able to obtain rental assistance as part of her family tax benefit, thereby assisting her to pay her rent at Warranoke Street to you.
Charge 2 – Warranoke Street, Willaura
17 In April 2016, you noted a property at this address.
18 On 18 April 2016, you conducted a Landata search, which showed the owners of the property to be Karen Lang and Giuseppe Latronico. The property had a rates value of $108,500.
19 The two had purchased the property in December 2010, and had intermittently lived there over the following five years due to their work commitments.
20 On 18 April 2016, you engaged locksmiths to change the locks at the address. You did not inform the locksmith, Geoff Dunmore, that you were not the owner of the property. By changing the locks at this address, you committed Charge 2 on the indictment.
21 The owners became aware that someone had occupied their house when they were contacted by a neighbour. They reported the matter to Ararat Police. The owners discovered that the locks had been changed on the front and back security doors, and deadlocks placed on the internal wooden doors. A number of personal items were also missing, and cleaning equipment was outside.
Charge 3 – Bolwarra Street, Chadstone
22 In early 2016, you noted a property at this address.
23 On 9 June 2016, you conducted a Landata search on the property which showed that it was owned by siblings Tri Candrayuda Putra and Ika Candra Setiawati, who had purchased the property in September 2001, and rented it out until 2013. The property had a rates valuation of $805,000.
24 On 14 June 2016, you engaged a locksmith to change the locks at the property. On 15 June 2016, Kon Koutros, locksmith, attended the property whilst you were clearing the garden of the property, and changed the front and back security locks and the internal wooden doors locks at your request. You did not inform Mr Koutros that you were not the owner of the property. This is the offending referable to Charge 3 on the indictment, of obtaining this property by deception, namely by falsely representing to the locksmith that you had a lawful entitlement to change the locks on the property.
25 On 18 June 2016, you advertised the property for rent at $420 per week, giving your company name Sweet Georgia Pty Ltd as the owner and “Kathy” as the contact with your mobile phone number.
26 On or about 20 June 2016, Shannon Sweeney contacted you in response to this advertisement. You said that the property would be ready to occupy in about three weeks. On 24 June 2016, Mr Sweeney met you at the property. You claimed that you were working on behalf of the owner, and you provided him with a rental agreement to complete.
27 On 27 June 2016, you submitted a change of address and personal details form to the City of Monash. You also spoke to Suzanne Kennedy, a property administration officer at the City of Monash, and falsely told her that the owners had been deported in 2002, that you had occupied the property since 2011, and that the property was currently tenanted. You later sent another letter falsely advising that Sweet Georgia Pty Ltd had occupied the property since 2002, and that all correspondence should be sent to Sweet Georgia. This was not carried out by the City of Monash, as no confirmation was provided by the registered owners.
28 Mr Sweeney and his partner signed the rental agreement on 11 July 2016. Between 15 and 23 July 2016, they transferred a bond of $1,825 and two weeks’ rent of $840 to you.
29 On 13 July 2016, you paid $1,360.25 towards the outstanding rates for the property, and you then applied to pay the balance by a payment plan. On 20 July 2016, you emailed Yarra Valley Water asking that the water restriction on the property be removed, as Sweet Georgia had a tenant moving into the property.
30 The tenants rescinded the rental agreement with you when it became apparent that repairs had not been carried out as agreed, and their bond had not been lodged with the Residential Tenancies Bond Authority. On 29 July 2016, you returned the bond and one week’s rent of $420, and it was agreed between you that the other $420 be kept by you for the inconvenience.
31 You readvertised this property on Gumtree using the contact name “Kathy” and, on 1 August 2016, James Dixon and his partner, Eloise Clarebrough, attended the property and met with you. In return for a rent-free period, you allowed the two to move in to clean up the property. On 7 August 2016, you signed a 12‑month lease agreement with them, with the landlord being Sweet Georgia Pty Ltd.
32 You accepted rent in advance of $5,000 for the period between 1 October and 22 December 2016, together with a bond. A total of $10,435 was paid by Mr Dixon and Ms Clarebrough to the Sweet Georgia account between 9 August 2016 and 27 February 2017.
33 On 24 September 2016, you received confirmation from Yarra Valley Water that you had been added as an authorised representative for the owners, despite no evidence that the owners had consented to this.
34 During the course of the tenancy, Mr Dixon became suspicious that you were not the owner of the property and confronted you. You told him that you were claiming adverse possession, and falsely stated that you had been in the property for almost 15 years. You falsely claimed that the owners had been deported in 2002, and their assets had been forfeited as part of their sentence. By this time, Mr Dixon had completed considerable landscape works and renovations to the property as agreed with you.
35 In around January 2017, on one of your visits to the property to meet Mr Dixon, you were in your black police uniform with a stripe on your shoulder, and he describes that you had a gun on your hip and other equipment. You told Mr Dixon, in the presence of Ms Clarebrough, that you were a police officer so they could trust you.
36 On 29 March 2017, you submitted a mail redirection form to Australia Post without authority from the owners, and thereby redirected the mail for the owners to an address at Church Street in Richmond. The mail included documents from a real estate agent looking to purchase the property, and rates notices from the City of Monash.
37 On 28 April 2017, you appointed JRW Property International Pty Ltd to manage the property on your behalf, signing a management agreement on behalf of Sweet Georgia Pty Ltd.
38 On 4 May 2017, you mailed a notice to vacate to the tenants. A short time later the owner, Putra, returned to Australia and realised that someone was living in the house. The other owner, Setiawati, checked online and discovered that Mr Dixon and Ms Clarebrough had put a caveat on the property. When contacted by the owners’ lawyers, Mr Dixon and Ms Clarebrough said that they had been renting the house from you.
39 On 9 May 2017, the two filed a VCAT application against you, seeking return of the rent and bond.
40 As the tenants had not vacated the property and were in arrears of rent, on 1 June 2017, you filed an application in VCAT against them, seeking a possession order. This application was opposed by the true owners. You initially claimed $50,000 from the owners on the basis of repairs done at the property, but later withdrew this claim.
Charges 4 and 5 – Waverley Road, Malvern
41 In or about September 2016, you noted a property at this address.
42 The property is owned by George Atamian, and was purchased by him in December 2014 with the intention that it be demolished. The property had a rates value of $990,000.
43 On 17 September 2016, you engaged a locksmith to change the locks at the property. You falsely told him that it was a deceased estate. This is the offending referable to Charge 4 on the indictment, of dishonestly obtaining the property by deception, by falsely representing to Joseph Melilli, locksmith, that you had a lawful entitlement to change the locks on the property.
44 On 3 October 2016, you reset the LEAP password for your Victoria Police subordinate Keith Randall, who was employed as an unsworn officer. You then used Mr Randall’s password to log into LEAP and search George Atamian. It is unknown whether this was done by you instructing that he conduct the search, or by you performing the search yourself. You had no authority to access the LEAP database for this purpose. You used the information acquired about Mr Atamian to gain control of the property at Waverley Road in Malvern. This is the offending referable to Charge 5 on the indictment, of unauthorised access to police information.
45 On 13 October 2016, you emailed Holmesglen Institute seeking students willing to renovate the garden at the property. On 18 October 2016, you sent a change of mail address form to the City of Stonnington, falsely claiming to be Mr Atamian and changing the address for delivery of rates notices to the property address in Malvern.
46 On 14 December 2016, you instructed your solicitor to place a Landata property alert on this property, together with the properties at Willaura and Chadstone, so that you would know whether there were any dealings with the property by the true owners.
Charge 6 – Wileman Street, Willaura
47 In November 2016, you noted a property at this address.
48 The owner of the property was Christopher Habel, who inherited it after his father died in 2007. Mr Habel resides in South Africa.
49 On 29 November 2016, you engaged locksmiths to change the locks at the property, saying that you did not have the keys to the property. This is the offending referable to Charge 6 on the indictment, of obtaining the property by deception, namely by falsely representing to Mr Dunmore, locksmith, that you had a lawful entitlement to change the locks on the property.
50 On 4 December 2016, the owner was alerted by neighbours that there were unknown people at the house, and he then reported the matter to police as a possible burglary. When you were confronted by Acting Sergeant Stephen Oliver, you falsely claimed to be buying the house and said that you had keys to the property. You also said that you were a sergeant of police, and were dealing with Landmark Real Estate, thereby convincing Sergeant Oliver that you were at the property legitimately.
51 Sergeant Oliver spoke to the owner of the property, and was informed that you had no right to be there. You then admitted that you did not know the owner, and had believed it was a deceased estate. You contacted the owner on the same day, using a number provided by Sergeant Oliver, and you said that you wanted to buy the property. The owner agreed not to make a trespass complaint, if you did buy the property for a price agreed between you of $73,000.
52 On 11 December 2016, you contacted your mortgage broker about the purchase of the property for $73,500. On 12 January 2017, you provided false tenancy details under the name of “Kelly Randall” for your property at Colorado Drive, Corio, and Hindmarsh Street, Jeparit, to the mortgage broker, in order to obtain a loan from the Commonwealth Bank for the purchase of the Willaura property.
53 The loan application was ultimately unsuccessful as it did not meet the bank’s loan criteria, despite further attempts by you to provide incorrect and misleading documentation concerning properties at Pickersgill Court, Endeavour Hills, and the property at Waverley Road, Malvern (the subject of Charge 4), that would satisfy the bank. Your solicitor advised the owner on 12 April 2017 that you would not be proceeding with the purchase of this property.
Charge 7 – Perjury
54 As I have noted, at this time you were residing at 29 Colorado Drive, Corio, but in the application form for the loan to purchase this property in July 2016, you stated that it was an investment property. To maintain this fiction, you connected the electricity at this property in the name “Elizabeth Turner”, using a false date of birth and driver’s licence number, and you had cash deposits for rent from other premises paid to the Commonwealth Bank, purporting to be for the Corio property.
55 As part of the Commonwealth Bank application for the Corio property, you also stated that your actual residential address was 15 Pickersgill Court, Endeavour Hills.
56 When you made the application for the loan to purchase the Willaura property (the subject of Charge 6), you signed a false statutory declaration stating that you resided at 15 Pickersgill Court, Endeavour Hills, and you did not pay rent or board. You knew that the statutory declaration was false. This is the offending referable to Charge 7 on the indictment, of perjury.
Charge 8 – Nolan Avenue, Brooklyn
57 In January 2017, you noted a property at this address.
58 On 4 January 2017, you attended at the Hobsons Bay City Council. At the time you were in Victoria Police uniform. You asked for details of the owners of two addresses, one of which was the Nolan Avenue property. The council officer, Nguyet Demiri, said that it would be emailed to you, but you said that you were already in the local area, and you asked for the information to be written on a piece of paper. He then provided you with the address and phone numbers of the owner, Mr Jason Barry.
59 Mr Barry was working in Macau at the time. He had purchased the Nolan Avenue property in September 2016 with the intention to demolish it. The property had been vacant since the last tenant left in July 2016. The rated value of the property was $584,000.
60 Between 2 and 14 February 2017, you communicated via Gumtree with Jon Henare regarding the Nolan Avenue property. You told him that the property was abandoned by the owner and that you were looking after it, and you made an arrangement with him to change the door locks in exchange for living there rent-free. You stated that you were the landlord, and that Mr Henare would receive a rental agreement for a six-month lease. This is the offending referable to Charge 8 on the indictment, that between 13 and 14 February 2017, you attempted to obtain this property by deception, namely by falsely representing to Mr Henare that you had a lawful entitlement to entry of the premises, and to change the locks.
61 At the same time, you made notes of conversations with a neighbour confirming that the owner had not been at the property for some time, and you arranged for AGL to connect the gas to the property under the false name of “Kim Snowden”, giving AGL your own mobile phone number and email, but creating a false driver’s licence number.
62 Mr Henare signed a lease agreement with Sweet Georgia Pty Ltd in relation to this property on 9 March 2017. Between 1 March and 4 May 2017, you received four rental payments from Mr Henare totalling $3,089.80. On 2 May 2017, you submitted a change of address form to Hobsons Bay City Council, falsely completing the form in the name of Jason Barry using the information provided by the Hobsons Bay City Council employee on 4 January 2017.
63 On 9 May 2017, you conducted a Landata search on the property, and on the same day you appointed JRW Property to manage the leasing.
64 On 10 May 2017, you submitted a false mail redirection application to Australia Post, stating that the owner, Mr Barry, had authorised the redirection, and this took effect on 10 May 2017.
65 In August 2017, you wrote to the owner, Mr Barry, saying that you were a police officer, and falsely stating that you had attended at the house because there were reports of squatters. You then stated that you had secured and had been maintaining the house since then, and you sought his permission to keep doing so.
Charge 9 – Perjury
66 On 15 April 2012, you opened a PayPal account in the false name of “Dianne Marshall”. You used your own credit card details, and conducted transactions on this account between April 2012 and July 2014.
67 On 15 June 2017, you completed and signed a statutory declaration in the name of Dianne Marshall, giving the address of 34/278 Church Street, Richmond, and stating that:
· you did not have photo identification
· you were the tenant at 14 Nesnah Street, West Footscray
· you attached nine different accounts and invoices addressed to you.
68 The purpose of the statutory declaration was to obtain the release of a residential tenancy bond. You knew that the contents of the statutory declaration were false. This is the offending referable to Charge 9 on the indictment, of perjury.
69 The bond was released on 13 September 2017.
Interview
70 On 27 October 2017, you were invited to participate in an interview but declined.
Effect on the victims
71 I have been provided with a Victim Impact Statement from Christopher Habel, the owner of the property at Wileman Street, Willaura, the subject of Charge 6 (Exhibit B).
72 He told me that he experienced the full gamut of emotions as a result of his experience with you. He was anxious and worried when he found out there were people on his property while he was overseas. He had all of his personal possessions in the house, and family heirlooms. He was worried, as someone he did not know was coming into his property. He was shocked by your behaviour at changing his locks. You invaded his privacy, and you had full access to his most personal possessions, and you had no right to do that. Some things that were in his house seem to have disappeared, that were sentimental to him, like old family photos, school awards, work awards, certificates and an old briefcase.
73 The gravamen of your frauds does not lie in actual financial loss to the victims, it is the profound usurpation and violation of their proprietary and personal rights, including their right to privacy and to quiet enjoyment of their property, which I consider to be significant and resonant.
Plea of guilty
74 Your matter proceeded to committal hearing in the Magistrates’ Court, then resolved as a plea of guilty without any witnesses being called. I accept and take into account in mitigation of penalty that these pleas was entered at an early stage without having inconvenienced any witnesses, and, as submitted by your counsel, that these pleas are indicative of your remorse, which you have also expressed to your numerous referees, which I will return to, as well as having utilitarian value.
Personal circumstances
75 You are now 57 years of age and your offending began when you were 53.
76 You were the eldest of four children, the next of your siblings was born seven years later than you. Your childhood was, unfortunately, dominated by harsh physical abuse and violence perpetrated by your father towards you and other members of your family. You experienced his rage and tantrums even in circumstances where there were only minor violations of his high standards.
77 In Patrick Newton’s initial report, he reports that you recounted a litany of the abuses that you suffered, including regular physical violence, being forced to eat rotten meat, being denied resources, clothing and other necessities, the mistreatment of your pets, and intense control of your connections to others and your social life more generally. You have lived in abject fear of your father for most of your life, and it has only been in recent years, with reports of his death, that you have been able to cease ruminating on fears that he would pursue you and harm you.
78 Understandably, the abuse which permeated your home environment in your childhood and beyond has had a profound impact upon you. You have lived a life characterised by endemic feelings of powerlessness, shame and fear.
79 Your parents separated when you were aged about 28, and your mother came to live with you for some years after that. Your mother had been financially dependent upon you, and you worked several jobs to support her and your younger brothers (who were still at secondary school) during this time. Your mother’s demands grew increasingly unreasonable and extravagant as time progressed.
80 In 2001, your mother instituted legal proceedings against you which reportedly necessitated the sale of your property and ultimately led to your bankruptcy. You are now, understandably, estranged from your family.
81 You attended a convent school in Elsternwick until the end of Year 8, and then completed Year 11 at Kilbreda College. You were an excellent student. At the end of Year 11, your father refused to allow you to complete further education, and insisted that you leave school to assist in his meatworks.
82 You then worked in the meatworks until you were aged about 28, which coincided with the point in time when your parents separated. You then worked in a range of positions, including in retail sales and in hair and beauty, in which you completed TAFE training.
83 You joined Victoria Police in 1994, and worked in a variety of roles within the police force during your decades of service, rising to the rank of sergeant before you were questioned on these matters. You received a number of certificates for meritorious service and ethical conduct, which I will return to in due course.
84 Your fall from grace has been dramatic, profound, public and gravely embarrassing to you, and I take into account the public opprobrium that you precipitated upon yourself. This resulted as I understand it in Coles Supermarkets retracting their recent offer of employment to you, and it may interfere with future employment opportunities.
85 Since leaving Victoria Police in 2019, you have worked on a casual basis for a vegetable grower and in other capacities. I note that you own seven modest investment residential properties, a number of which are in Willaura. All except the one in which you live, are tenanted.
86 You are a devout Catholic, and are actively engaged in the activities of your church. You also participate in charitable endeavours.
87 You had no prior criminal history, and before your commission of these offences you were a person of very good character, which I take into account in significant mitigation of penalty.
88 I received a large number of personal and professional references provided by various authors on your behalf, which I will summarise.
89 Kenneth Michael Townsend told me that he lived in Willaura, and is a retired plumber. You discussed your offending with him, and he told me that you were visibly remorseful during this discussion. He and his family always found you to be honest and true to your word, and he still trusts you implicitly, even knowing the charges against you.
90 Father John Mathes of the Anglican Parish of Essendon told me that he had known you for over five years in his capacity as Parish Priest, and that you attend the mass daily at your local Catholic church and assist with the children’s ministry there. He told me that you worked part time as a hairdresser and often gave free haircuts to those with little money, as well as encouragement and support. He describes you as very generous, extremely honest, reliable and conscientious.
91 Father Pius Kodakkathanath, Parish Priest at St Francis Xavier Church in Corio, told me that you have been a parishioner there since 2016. He describes you as a great help to their Parish, doing lots of volunteer work. You visit the sick and elderly in palliative care at the hospital, cut their hair, massage their feet and pray with them.
92 Martina Cahl told me that you have consistently demonstrated a very caring and supportive attitude towards others, and she considers herself lucky to have you as a confidante.
93 Retired police inspector, David Manly, told me that during his professional interactions with you, he always found you to be willing to assist and most obliging, never refusing any request from your superiors. He told me that he was charged with various criminal offences by IBAC, he pleaded guilty and was fined $5,000. He noted that, in his opinion, you were treated rather unfairly during your studies for the rank of senior sergeant, and were potentially the victim of bullying. He described you as a dedicated member of Victoria Police, and he knows that you are devastated and extremely remorseful for what has occurred.
94 Gregory Kerr of Ararat told me that he has known you for seven years through your business dealings, and he has always found you to be very honest, trustworthy and a decent person.
95 I received supportive correspondence from various police members written prior to your leaving the force, commending you in your work with the Bourke Street devastation, and you were also praised for your excellent oral and written communication skills, your capacity to listen and exchange ideas with your superiors and peers, your developed written skills, and your contribution to productivity, morale and the work ethic of your unit. I note that a civilian with whom you dealt through your contribution to the Safety Awareness Program wrote to your Chief Commissioner to commend you for dedication, knowledge and enthusiasm about that program. You were also commended by Gina Cidoni, psychologist, for your three years’ volunteer work assisting homeless and destitute individuals by linking them to mental health supports, and in assisting them with their accommodation and practical needs.
96 I note your Victoria Police Group Citation for Merit in July 2013, your satisfactory completion of a Master of Arts (Criminal Intelligence) from Charles Sturt University in July 2012, your completion of a Diploma in Project Management from NMIT in September 2012, your completion of a Diploma of Police Supervision in January 2010, your completion of a Diploma of Management in September 2012, your completion of the Discipline Investigation Course of Victoria Police in May 2010, your completion of the Monash University Employment Relations Professional Development Program in June 2010, and your completion of a Certificate of Anonymous Training Activity of the Joint Intelligence Group Officer Skilled Enhancement Course in April 2011.
97 This material substantiates my view as to your previous character which, as I have noted, mitigates your offending.
98 Your mental health presentation was assessed by Mr Newton, supplemented by the insights of Dr Matthew Barth. Mr Newton notes the lasting legacy of emotional turmoil and upheaval from your abusive family environment. He notes that you reported that you have lived in a state of near constant fear and anxiety combined with feelings of powerlessness, humiliation and distress. You received no treatment at the time. Well into adulthood, you have felt unsafe, insecure or unsupported by those around you, and your life has been punctuated by episodes of intense anxiety that your father would track you down and harm you, as well as other periods of emotional distress when your financial and economic security has been challenged.
99 You described to Mr Newton a constant state of low level depression and worry, together with poor self-esteem and ongoing doubts about your own adequacy to meet life’s challenges.
100 You commenced seeing Dr Barth, psychologist, in 2017. This was the first mental health treatment that you had ever sought or obtained, and you report that it has helped you manage your symptoms more effectively. Dr Barth reports that the main target of his trauma-focused counselling of you has been to develop your insight into your trauma symptoms, and to enhance your capacity to experience and regulate your emotions in an adaptive manner. In the years of counselling that you have undertaken, you have made solid steps towards understanding and managing your trauma symptoms, and demonstrated an understanding of the role trauma has played in your mental health. You are now able to express your emotions (including those related to trauma) in a more constructive manner.
101 Since you have been charged, you report intrusive suicidal ideation.
102 Mr Newton notes that you meet DSM-V diagnostic criteria for a persistent depressive disorder (dysthymia). Whilst your prosecution has intensified your symptoms, your condition is not merely reactive in nature. In Mr Newton’s professional view, the indications are that you have suffered a significant mood disorder since your youth.
103 This depression persists in the context of prominent personality dysfunction, that is you suffer a moderate level of impairment in your identity formation together with significant difficulties in your capacity to establish and sustain mature intimacy with adult partners. You are prone to experiencing particularly strong emotional reactions to life stressors and you remain at elevated risk for a deterioration in your mood at the time of sentencing.
104 Based upon your reported history and the expected course of a persistent depressive disorder, in Mr Newton’s view, it is likely that you were suffering a significant level of depressive mood disturbance at the time of your offending conduct.
105 He does note that while you have likely experienced genuine and longstanding problems with the clarity of your thought processes as a result of the depressive disorder that you have suffered, these have not fallen in the severe end of the spectrum. You continued to study at an advanced level, to progress with your work duties (discharging the responsibilities of a sergeant of police with sufficiently good performance to be awarded certificates of merit and efficiency), and to maintain your other charitable and life tasks.
106 Accordingly, Mr Newton opines that the effects of your depressive condition and other psychological problems upon your reasoning, judgment and decision-making, all fall within the mild to moderate range.
107 Mr Newton supplemented his opinion with a further assessment of you performed in August 2020 and noted that your mental state had deteriorated somewhat. The intensity of your suicidal ideation has increased as your legal proceedings have progressed, and attracted significant publicity. The core symptoms of chronic depression and preoccupied worry endure. You have ruminated upon a range of distressing scenarios, centred on your concerns for your safety in a custodial environment, given your status as a former member of police and the publicity that your matter has attracted. Your symptoms are understood as a significant deterioration in the persisting depressive disorder that he diagnosed. You have not been able to access treatment with Dr Barth during this period. Mr Newton is of the view that your status as a former police officer, and your mental health difficulties would be likely to render a custodial disposition relatively difficult, and he remains of the view that any time in prison is likely to be more onerous for you than for an individual who did not face these challenges. I agree with that characterisation.
108 Your counsel submitted that, as a result of the matters that I have described, the fifth and sixth limbs of Verdins[1] attracted weight in the sentencing exercise – that is, that the existence of your condition will mean that a given sentence will weigh more heavily upon you than it would on a person in normal health and that there is a serious risk that imprisonment will have a significant adverse effect on your mental health, and so your condition has a bearing on the kind of sentence that is to be imposed, and the conditions in which it should be served.
[1]Verdins, Buckley and Vo (2007) 16 VR 269, [32]
109 The prosecution has accepted that those factors are active in this case.
110 I find that your condition will mean that a sentence will weigh more heavily upon you than it would on a person in normal health, and mitigatory weight will therefore attach to the operation of Verdins factor 5 in this case. I am also prepared to allow for mitigation of sentence on the basis of Verdins’ factor 6, that is that there is a serious risk that imprisonment will have a significant adverse effect on your mental health.
111 At paragraph 111 of the defence submissions, it is submitted that prior to, and at the time of your offending, your psychological state affected your mental functioning and, accordingly, affected your moral culpability. The evidence relied upon does not establish this, save and except for the factors that I have expressly adverted to.
112 I note that your medical practitioner, Dr Peter Ng, has diagnosed you with hypercholesterolemia, and you have been prescribed Lipitor; and also hypertension, treated with Ramipril; you have a raised body mass index, you are 58, and are in declining mental health.
113 He reports that each of these conditions are significant risk factors known to worsen the severity of COVID-19, which is a topic to which I will return.
Objective seriousness of your offending
114 This is grave offending, aggravated by your status as a serving, sworn, and senior police officer.
115 In relation to each charge of obtaining, and attempting to obtain, property by deception, your conduct involved planning and foresight of the suitability of a vacant property to serve your dishonest means.
116 These were the owners’ private properties. They were worth significant sums. You violated the sanctity of those properties with your brazen acts of ordering locksmiths to change the locks, leading to your possession. Each offence was complete upon the point of the changed locks, but you then needed to continue to behave in a dishonest way to conceal your offending. Your concealment, though, does not aggravate the objective seriousness of the offending, which on each occasion was complete at the point of the changing of locks. It is better taken into account in evaluating your moral culpability leading to the commission of each next acquisition, as for instance it became clear to you following your commission of charge 3, the Bolwarra Street Chadstone property, that from this point you would need to defend your ownership of each house vigorously when challenged.
117 As I have mentioned, the loss to each owner is not measured in financial terms as is often the case in other substantial frauds, it is the profound usurpation and assumption of others private and proprietary rights.
Moral culpability
118 An issue of significance on your plea in mitigation was whether your conduct in obtaining the five houses, and attempting to obtain the sixth, was influenced by your understanding that after 15 years of possessing each property adversely to the interests of the owner, you would be equipped to claim the property under the doctrine of adverse possession. As best I understand the argument made by your counsel, it was submitted that your moral culpability was somehow reduced by your desire eventually to expand your property portfolio via that means.
119 That you had a working knowledge of the doctrine of adverse possession, and that it might eventually lead to a legitimate claim to ownership in civil law, is evidenced by your conduct surrounding Charge 3, the property at Bolwarra Street, Chadstone. You changed the locks to that property on 14 June 2016. In the period following 27 June 2016, in the context of correspondence with the City of Monash, you falsely stated in a letter that Sweet Georgia Pty Ltd had occupied the property since 2002 – some 14 years prior to the date of that letter. You discussed that you would be claiming adverse possession over the property with the tenant Mr Dixon, and falsely told him that you had been in the property for almost 15 years. You also discussed adverse possession with Ms Clarebrough. These open and friendly conversations show your understanding of the doctrine, including that it would not bear fruit, if ever, in your favour, until 15 years had passed without action by the true owners – this is the reason why you have made false statements throughout those friendly references to the doctrine. You also performed improvements on some of the properties.
120 In my view, the eventual foreclosure of the victims’ civil remedies against you, some 15 years hence, would not and cannot reduce your moral culpability for these offences. The argument is misconceived. From a civil perspective, for the 15 years from the date of your adverse and tortious action, if the true owners of the house had raised a claim against you, you may be liable in damages and for equitable remedies. Adverse possession operates effectively as a form of limitation of actions – in 15 years if such event had not occurred, then you could claim title, and I understand that that was your intent and desire. But there is no limitation of actions against the criminal acts that you committed. It would never diminish the criminality of your conduct on the date of its commission. I do accept that these were risks that you appreciated and were willing to take in your desire to build a portfolio.
121 The psychological material does not draw a connection between your symptoms and your behaviour and I put that potential explanation to the side.
122 Your conduct was brazen and callous to the rights of the true owners. Indeed, by the time that you committed your third act of obtaining property by deception, of the house in Bolwarra Street Chadstone, you had escalated from obtaining rural properties of relatively modest objective value, to a suburban house with a rates valuation of $805,000; this was followed by the house worth $990,000 in Waverley Road Malvern, before you returned to a further rural property in Willaura, and then in Brooklyn. These frauds spanned a period of approximately ten months of offending, a busy period of acquisition of your victims’ premises interposed with your other offences. I do not accept, as your counsel submitted, that you initially misunderstood the nature and character of permissible conduct by a person interested in furthering your long-term goal of achieving lawful ownership of abandoned property. As a former sergeant of police it is a preposterous suggestion that you felt this doctrine enabling long future ownership could in any way justify your intrusion and acquisition of these properties.
123 I similarly reject the proposition, made in your counsel’s written submissions, that “it is easy to see that the focus for a person interested in an adverse possession claim for property, might be the long journey ahead, rather than the appreciation that entry, preservation, repair, maintenance, keeping safe, tenanting, or locking up of any such property would be a trespass, and even in circumstances such as here pertain, a crime.”
124 On occasions following your changing of the locks with respect to Charge 3, you also made known that you were a serving police officer. This is the context of your charged acts – these were not simply a matter of fencing a metre on an adjoining lot such as were described in some of the adverse possession pamphlets found by police in your possession, but acts which challenged the very heart of property ownership, and an awareness that you would need to lie, minimise the significance of your acts, and at times misuse your position as a police officer and thereby cloak your criminal conduct in the guise of legitimate action.
125 On 3 October 2016, you misused your capacity to access the LEAP database to gather sensitive and personal information about George Atamian, the owner of the property at Waverley Road, Malvern, that you had by then dishonestly obtained, to endeavour to advance your dishonest possession of the property.
126 And finally I note that your adverse possession claims have nothing whatsoever to do with your moral culpability in relation to your summary offence, and your two perjury charges, both of which were simply brazen and dishonest, used to manipulate another into providing a benefit to yourself in the case of the two perjuries, or another in the case of your summary matter.
Relevant sentencing principles, current sentencing practices, sentencing submissions
127 I take into account the purposes for which sentence must be imposed, including the need for deterrence, both general and specific.
128 The sentences I will impose will punish you and denounce your behaviour and allow for community protection, whilst allowing for your continued efforts at rehabilitation. I consider that your prospects for rehabilitation are very good, based upon your previous good character, your personal history and your work ethic.
129 I am unsurprised that the prosecution has been unable to find a past similar case for comparison.
130 Your counsel submitted that a Community Corrections Order would represent a proportionate penalty, and adequately satisfy all of the purposes for which sentence must be imposed in this case.[2] I note that should I sentence you to immediate custody, it coincides with the unhappy and serious risks posed to you and other prisoners by the COVID-19 virus. A sentence would necessarily involve an initial two week isolation period, and you will be deprived of some of the ordinary concomitants of custody such as face to face visits, courses, and employment activities. Also in your case, you are acutely aware of your own physical and mental health vulnerabilities that would place you in great peril should you be exposed to the virus, which will weigh heavily upon your fragile mind. I take these matters into account in mitigation of sentence.[3]
[2]See R v Boulton [2014] VSCA 342; Dyason v The Queen [2015] VSCA 210, [40].
[3]R v Madex [2020] VSC 145, [52]; Brown v The Queen [2020] VSCA 60, [48]; DPP v Tennison [2020] VCC 343, [36].
131 The prosecution submitted that a disposition without immediate custody was not available in the proper exercise of my sentencing discretion, and submitted that a sentence involving immediate imprisonment was necessary.
132 I have been mindful of the totality principle of sentencing, and am also acutely conscious of the need for parsimony, and I have reflected very carefully upon your counsel’s submission as to the suitability of a community corrections order as a proportionate sentence in all of the circumstances of the case. I am ultimately of the view that such a disposition does not adequately satisfy all of the purposes for which sentence must be imposed in this case and I accept the prosecution’s submission that an immediate sentence is necessary. I have therefor had careful regard to the fact that you are, it seems, the first former female serving police officer to be imprisoned in Victoria and as a result you may need to serve your sentence in circumstances that are more burdensome than for mainstream female prisoners; and further and separately, that your knowledge and suspicion of risks posed by other prisoners to you will certainly weigh heavily upon you. I also take these matters into account in mitigation of your sentence.
133 I have also been mindful of the fact that this is your first term of imprisonment and I trust and infer that it will be of salutary effect.
Sentence
134 On charge 1, of obtaining property by deception, you are convicted and sentenced to 18 months’ imprisonment, three months of which is to be served cumulatively upon the base and other sentences. On charge 2, of obtaining property by deception, you are convicted and sentenced to 18 months’ imprisonment, three months of which is to be served cumulatively upon the base and other sentences. On charge 3, of obtaining property by deception, you are convicted and sentenced to two years and six months imprisonment, which is the base sentence. On charge 4, of obtaining property by deception, you are convicted and sentenced to two years and three months imprisonment, six months of which is to be served cumulatively upon the base and other sentences. On charge 5, of unauthorised access to police information, you are convicted and sentenced to six months imprisonment, two months of which is to be served cumulatively upon the base and other sentences. On charge 6, of obtaining property by deception, you are convicted and sentenced to two years’ imprisonment, four months of which is to be served cumulatively upon the base and other sentences. On charge 7, of perjury, you are convicted and sentenced to 18 months’ imprisonment, three months of which is to be served cumulatively upon the base and other sentences. On charge 8, of attempting to obtain property by deception, you are convicted and sentenced to 12 months’ imprisonment, two months of which is to be served cumulatively upon the base and other sentences. On charge 9, of perjury, you are convicted and sentenced to 12 months’ imprisonment, one month of which is to be served cumulatively upon the base and other sentences.
135 On the related summary offence, of obtaining a financial advantage by deception, you are convicted and sentenced to one month imprisonment, to commence today, and it is my intention that this be served wholly concurrently with other sentences.
136 The total effective sentence is four years and six months, and I order that you serve two years and four months before parole eligibility. I have had careful regard to the matters I have periodically summarised in mitigation, and also my evaluation of your good prospects for rehabilitation, in my decision to impose a longer period of parole eligibility than is customary.
Section 6AAA declaration
137 Pursuant to s6AAA of the Sentencing Act 1991 (Vic), I declare that had you pleaded not guilty to these charges and been found guilty of them, I would have sentenced you to a total effective sentence of six years and four months’ imprisonment with a non-parole period of four years and six months.
138 Mr Pickering, any procedural obstacle of the Commonwealth sentence proceeding in the way that I have proposed?
139 MR PICKERING: I don't believe so, Your Honour. No.
140 HER HONOUR: No. It is not my - - -
141 MR PICKERING: And my friend's shaking his head as well.
142 HER HONOUR: Good. It is not my intention that there be any additional time to serve in relation to that sentence. Next, is there is no pre-sentence detention?
143 MR PICKERING: No, Your Honour.
144 HER HONOUR: Are there any ancillary orders sought?
145 MR PICKERING: I don’t believe so, Your Honour. I don't believe any were filed.
146 HER HONOUR: No. I don't believe so either.
147 MR PICKERING: No.
148 HER HONOUR: Thank you. Now, are there any matters for either of you to raise?
149 MR PICKERING: No, Your Honour.
150 MR WALMSLEY: Only is Your Honour able to hand down a written version of Your Honour's sentencing remarks?
151 HER HONOUR: Yes, and remarks will be published once I've had an opportunity to revise them.
152 MR WALMSLEY: Thank you, Your Honour.
153 HER HONOUR: Which will happen imminently.
154 MR WALMSLEY: Yes.
155 HER HONOUR: Thank you very much. I'll now stand down and we'll adjourn to 9 o'clock tomorrow morning please.
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