Director of Public Prosecutions v Rudolph
[2023] VCC 251
•22 February 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-01323
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TRAVIS RUDOLPH |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 17 February 2023 |
| DATE OF SENTENCE: | 22 February 2023 |
| CASE MAY BE CITED AS: | DPP v Rudolph |
| MEDIUM NEUTRAL CITATION: | [2023] VCC 251 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Charge of obtaining a financial advantage by deception – employed as advisor in business service delivery team at National Australia Bank – arranged for sum of monies to be paid into bank account belonging to co-accused – monies paid to accused over time – brazen and flagrant offending – profound breach of trust – no prior criminal history – full admissions made – no mental impairment – full monies repaid – general deterrence – early plea of guilty – evidence of remorse
Legislation Cited:
Cases Cited:R v Verdins [2007] VSCA 102; Worboyes v R [2021] VSCA 169; Boulton v R [2014] 46 VR 308; DPP v Reynolds [2022] VSCA 263
Sentence:Community correction order of three years’ duration with one non-core condition, to perform 400 hours of unpaid community work.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. White | Office of Public Prosecutions |
| For the Accused | Mr G. Steward | Anthony Isaacs |
HIS HONOUR:
Introduction
1Mr Rudolph, having received the community correction order assessment outcome report and heard from your counsel and the Director’s counsel, I propose to sentence you to a community correction order of three years’ duration with one non-core condition, to perform 400 hours of unpaid community work.
2You have pleaded guilty to a charge of obtaining a financial advantage by deception.
3The circumstances of your offending are described in Exhibit A, the summary of prosecution opening on plea. Your counsel agrees with its contents.
Circumstances
4In October 2019, you were employed as an advisor in the business service delivery team at the National Australia Bank. In part, your duties involved dealing with loans exceeding $5 million.
5A corporation borrowed a large sum from the bank. It paid the bank six application fees. There was a seventh application fee for $172,560. By a deception, you arranged for that sum to be paid to the bank account belonging to your co-accused. Over time, your co-accused withdrew monies from his account. In one way or another, over several months, these monies were paid to you.
6In about March 2020, the bank was aware of its non-receipt of the $172,560. It traced the funds from the corporation’s account to your co-accused’s account. When interviewed by a bank investigator, your co-accused spoke of your involvement.
7On 27 March 2020, you and your co-accused went to a branch of the bank. You paid the bank $164,998.50 and your co-accused, $7,561.50.
8On 6 October 2020, by arrangement, you went to a police station. You were arrested and interviewed. You made full admissions. Oddly, despite the arrest, you were not charged until 16 June 2022.
Criminal history
9You have no criminal history.
Personal
10You are now 40. You were born in Sri Lanka and came to Australia when you were very young. You are an only child. Your parents were frugal. They divorced when you were 20. Your father died in December 2022.
11You married in 2012 and have two children. Your daughter, aged 8, has a heart defect. She has had surgery for the defect and more surgery is arranged for later this year.
12After starting an accounting degree, you transferred to and completed a degree in business international trade. After university, you spent a few months unemployed until gaining employment with the bank in 2005. You were made a permanent employee in 2007.
13In 2016, you and your wife bought land in Chelsea Heights and built a home. You moved into the home in 2019. To assist your family’s finances, you started two businesses, both of which failed.
14Once your dishonesty was discovered, naturally enough, you lost your employment with the bank. You worked as a delivery driver before working in offices and stock management. For the last 12 months you have worked as a procurement officer with a large corporation.
15Your daughter, Rosanna has as I say, a problem with her heart. It is difficult to discern the seriousness of her condition from the letter from Professor Menahem to her general practitioner. However, by 18 August 2022, further surgery was recommended. Her condition disables her and it stresses you significantly.
Psychologists
Matthews
16Pamela Matthews is a forensic psychologist. She interviewed you on
26 September 2020 at the request of your solicitors and reported[1].[1] Report dated 13 December 2022.
17Faced with the absence of severe personality disorder, major mood disorder or other mental illness, Ms Matthews turned to the research of a Ms Murphy and her colleagues in an attempt to understand why you offended. She concluded[2]:
'It is the writer’s view Mr Rudolph’s offending occurs in the context of him being faced with: (a) opportunity; and (b) what he perceived as significant stress associated with family and financial pressures, the failure of two businesses, and trying to meet the needs of his parents and his family of creation.'
[2] At p 6.
18In the absence of any mental impairment, naturally none of the principles in
R v Verdins[3] is relied upon.[3] [2007] VSCA 102.
Green
19Braydon Green is a provisional psychologist. Since 2 August 2022, he has seen you on eight occasions. Apart from noting you have exhibited emotions of guilt, shame and regret, he describes his treatment very briefly. Presumably, this involves the traditional cognitive behaviour therapy which
Ms Matthews recommended.
References
20The referees, including your mother, express surprise at the fact you offended. Nevertheless, they note your remorse.
Discussion
21Each of the purposes of sentencing are relevant in your case. My sentence should deter other persons from committing this or similar offences. I agree with the prosecution’s description of your offending as 'brazen and flagrant'. My sentence should deter you from doing the same and, by the same token, protect the community from you. It should contain a denunciation of your offending. In terms of the age-old dichotomy between greed and need, there was little or no need and your offending falls squarely under the rubric of greed.
22It was obviously a profound breach of the trust which the bank had for you as an employee. I do not know whether your dishonesty affected the customer’s trust in it. Since you were the bank’s employee and used your position to commit the offence, it is unlikely the customer would fear being out of pocket. Finally, my sentence should also look to the issue of your rehabilitation.
23As to rehabilitation, it would appear you have taken significant steps to do that unaided. Naturally, you lost your employment with the bank, but you have obtained another job which has an element of trust. You have remained offence-free in the years since you committed this offence. You repaid the monies, mainly through borrowings.
24You are remorseful. More importantly, your remorse will translate into a determination not to re-offend. Indirectly, that determination is shown through your co-operation with the bank and then the police. The prosecution had a strong case against you, but a good deal of its strength came from you.
25I consider specific deterrence and community protection is of much lesser importance in your case.
26The maximum penalty for the offence is 10 years’ imprisonment.
27In relation to the charge, in terms of the timing of your plea of guilty, it was entered at the earliest reasonable opportunity.
28By pleading guilty, you have saved the time and expense of a trial and allowed other trials to be listed earlier than would otherwise be the case. You have spared witnesses the burden of giving evidence in a trial. Giving evidence is rarely easy.
29At the present time, a guilty plea deserves a greater discount on sentence. Why this is so was explained in the case of Worboyes v R[4], where the court said at paragraph 35:
'As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts. We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence'.
[4][2021] VSCA 169 at [35]
30Your guilty plea is evidence of your remorse for the offending. Overall, it entitles you to a significant discount on the sentence which would otherwise have been imposed if you had pleaded not guilty but had been found guilty.
31Your counsel seeks a community correction order. In the case of Boulton v R[5], the Court discussed this sentencing option:
'Axiomatically, imprisonment is a sentence of last resort. As s 5(4) of the Act, that is the Sentencing Act, makes clear, such a sentence must not be imposed unless the court considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender.'
Given the adverse features of imprisonment to which we have referred, the conclusion that imprisonment is the only appropriate punishment amounts to a conclusion that the retributive and deterrent purposes of punishment must take precedence. Put another way, it is a conclusion that the offender’s ‘just deserts’ for the offence in question require imprisonment, even though the court is well aware that the time spent in prison is likely to be unproductive, or counter-productive, for the offender and hence for the community.
The availability of the CCO dramatically changes the sentencing landscape. The sentencing court can now choose a sentencing disposition which enables all of the purposes of punishment to be served simultaneously, in a coherent and balanced way, in preference to an option (imprisonment) which is skewed towards retribution and deterrence.
The CCO option offers the court something which no term of imprisonment can offer, namely the ability to impose a sentence which demands of the offender that he/she takes personal responsibility for self-management and self-control and (depending on the conditions), that he/she pursue treatment and rehabilitation, refrain from undesirable activities and associations and/or avoid undesirable persons and places. The CCO also enables the offender to maintain the continuity of personal and family relationships, and to benefit from the support they provide.
In short, the CCO offers the sentencing court the best opportunity to promote, simultaneously, the best interests of the community and the best interests of the offender and of those who are dependent on him/her. On this analysis, if defence counsel submits that a CCO would be appropriate, it is no answer for a prosecutor (or a judge) to say, 'How could a CCO be appropriate given that an offence of this seriousness has always received imprisonment? As we have endeavoured to explain, that question should mark the beginning, not the end, of the court’s consideration.'
[5] [2014] 46 VR 308 at [111] to [115].
32However, as noted recently, the majority of the court in DPP v Reynolds[6] said:
'The punitive effects of a CCO (even of some duration and with onerous conditions) cannot be compared with a gaol sentence. Imprisonment is "uniquely punitive" principally because it involves "the complete loss of liberty". As a sanction, imprisonment gives the greatest prominence to the punitive and deterrent aspects of sentencing'.
[6] [2022] VSCA 263 at [108].
33The case law emphasises the importance of general deterrence and denunciation in sentencing for this type of offence. In your case, there are powerful countervailing factors which I have described.
Sentence
34I have received the community correction order assessment outcome report dated 21 February 2023. The author assesses you as being a low risk of
re-offending. I agree with that assessment. I accept her recommendation.35On the charge of obtaining a financial advantage by deception, subject to your consent, I will convict you of the offence and place you on a community correction order for a period of three years with one non-core condition: that you perform 400 hours of unpaid community work.
S 6AAA
36If you had not pleaded guilty to the charge but had been found guilty after a trial, I would have sentenced you to 18 months’ imprisonment.
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