Director of Public Prosecutions v Sandoval

[2021] VCC 763

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR-21-00074
Indictment No. K12770203

DIRECTOR OF PUBLIC PROSECUTIONS

v

KAREN SANDOVAL

---

JUDGE:	HIS HONOUR JUDGE HANNEBERY
WHERE HELD:	Melbourne
DATE OF HEARING:	24 May 2021
DATE OF SENTENCE:	11 June 2021
CASE MAY BE CITED AS:	DPP v Sandoval
MEDIUM NEUTRAL CITATION:	[2021] VCC 763

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW

Catchwords:              Obtain financial advantage by deception – obtain property by deception – theft – exceptional family hardship – delay – plea of guilty – general deterrence 

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:DPP v Chapman [2016] VCC 231; DPP v Ross [2021] VCC 249; R v Verdins (2007) 16 VR 269

Sentence:                  Community Corrections Order for a period of three years with conviction

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. McKenry	Solicitor for the Office of Public Prosecutions
For the Accused	Mr R. de Vietri	Victoria Legal Aid

HIS HONOUR:

Introduction

1Karen Sandoval, on 24 May 2021 you were arraigned on Indictment K12770203 and pleaded guilty to seven charges of obtaining property by deception, one charge of obtaining financial advantage by deception and six charges of theft.  The maximum penalty for each charge is ten years' imprisonment.

Summary of Offending

2The offending was set out in the Summary of Prosecution Opening, which was Exhibit 1 on the plea.  I do not intend to repeat that opening in full but in somewhat abbreviated form the circumstances of the offending are as follows.

3All charges took place while you were employed at the Commonwealth Bank of Australia branch at the Croydon as a customer service representative.

4Between 14 March 2012 and the 23 August 2013 you completed 69 fraudulent transactions of various amounts from nine different account holders at the CBA Croydon branch.  The sum of those transactions totalled $185,808.41.  You had developed an ongoing professional relationship with these bank customers and targeted them because they were elderly and vulnerable.

5In order to enact these fraudulent transactions you would:

(a)   Withdraw cash from their accounts outside of business hours;

(b)   Change the mailing addresses of the customers so they would not receive their statements;

(c)   set up internet banking without that customer's knowledge;

(d)   change the contact phone numbers to your personal mobile number;

(e)   transfer funds between customer's accounts;

(f)    transfer funds into your personal ANZ account;

(g)   transfer funds to your boyfriend's account and to another associate's account;

(h)   transfer funds to pay an outstanding utility bill.

6Your methods enabled you to complete these transactions without detection.

7In around July 2013, your actions were discovered.  On four occasions, customers attended the Croydon branch and spoke to you about suspicious transactions on their accounts.  On each occasion you reassured the customer that the matter would be reported to management for an internal investigation.

8You did not report the matter to management.  On one occasion you transferred moneys from one customer to another in the exact amounts that you had originally transferred out of the account.

9On 16 October 2013 you were interviewed by a CBA internal investigator and made partial admissions to stealing funds from five bank customers.  You admitted having an ongoing relationship with those customers.  You admitted that you had known them to be elderly.  You said you had spent most of the misappropriated funds and that you may have made, 'Errors' on other customer accounts.

10In August 2014, the matter was formally referred to Victoria Police for investigation. On 22 August 2017 you were interviewed at the Ringwood Police Station by appointment and made a no-comment interview.

Nature and Gravity of Offending

11You are charged with 14 separate offences.  Whilst each of them relates to separate transactions, and each differ in terms of both the number of individual acts of dishonesty and the total amounts stolen or defrauded by your criminal activity, however they all share certain common characteristics.

12Each offence carries a maximum penalty of ten years' imprisonment.  Each of them are offences of dishonesty committed by you whilst employed at the Croydon branch of the Commonwealth Bank.  The offences were committed within a 17 month period, and several of the charges having overlapping periods during which they were committed.  Each of the offences targeted a customer with whom you had a pre-existing relationship, and who you knew to have particular vulnerabilities as a result of their age, their cognitive abilities, or both.  The strategies you implemented to commit these offences all involved the use of your special position at the bank to manipulate information within the bank's systems.  All offences also involved you obtaining by various dishonest means amounts measured in the thousands of dollars.

13The level of commonality between the charges is such that I intend in sentencing to consider the whole of the charges as representing an ongoing episode of offending.

14You are sentenced for offences that involved the dishonest transactions to the amount of $185,808.41.  I am instructed that $113,587.00 of this money has not been recovered.  I am further advised that the Commonwealth Bank has made good the losses you caused to the individual customers, so there is no need to consider the impact of any financial loss upon those people.  The bank itself, however, has borne that loss and based on current instructions there is little likelihood that you will be able to repay any of that amount in the foreseeable future.

15The offending covers a period of some 17 months.  During this time, you engaged in 69 separate unlawful transactions.  Your offending only ceased as the result of its detection.

16Those transactions impacted the accounts of six separate elderly customers.  That they were known to you, and deliberately targeted by you because of your relationship with them is a matter that aggravates your offending.

17Your offending represents a gross breach of the trust placed in you by your employer.

18The offending also involved a significant level of sophistication.  You used your knowledge of the banking system to ensure that funds were misdirected, and that your actions would not be detected.

19It is also of some significance that when you were first confronted by a family member of one of the defrauded customers, you told that person lies about your intention to report the matter for investigation.  You did this in a brazen attempt to cover your tracks.

20The nature of your offending is very serious.  In sentencing you it is necessary to place significant importance on the sentencing purpose of general deterrence. Further, I must impose a sentence that represents just punishment and expresses the denunciation of your conduct.

Personal Circumstances

21Karen Sandoval, you were 32 years old at the time of the offending and are now 40 years old.  Your parents are of South American origin and emigrated to Australia in the 1970s.  You live with your mother and father at a property in Clyde North, along with your daughter, Leyla.  Leyla is 18 years old and is severely autistic and intellectually disabled.

22You grew up in housing commission accommodation in Melbourne.  You are were educated from Year 7 to 9 at Presentation College in Windsor.  You did Year 10 at Vaucluse College in Richmond before completing your VCE at Swinburne TAFE.

23You are currently, and have always been, your daughter's carer.  She needs a high level of support and supervision in many basic functions of life.  Whilst your parents provide some support, your daughter's lack of communication skills mean that the substantial burden of her care falls to you.

24I am told that your relationship with your daughter's father was an abusive one. There is no suggestion that he has provided any meaningful support since the end of that relationship in 2003.

25In terms of your employment history you worked at Telstra prior to commencing with the Commonwealth Bank in 2009.  Your employment with the Commonwealth Bank ceased upon investigation into these matters in 2014.  Since then you worked for 12 months as a store manager with Dick Smith Electronics.  I am told that that employment ended because of your poor mental health.

26You were unemployed from that time until in October 2018.  You then enrolled in a certificate for course in cyber security through the Chisholm Institute of TAFE. You completed the requirements of this certificate and then in 2021 you have enrolled at Deakin University in a Bachelor of Cyber Security.  This study has led to you securing a part-time job in March 2021 as an IT support person at Extreme Networks.

27A psychological report from Ms Alison Mynard was tendered on your plea.[1]  She states that you are desperately concerned about your daughter and the consequences for her if you were to be imprisoned.  I accept that your concern is both genuine and very reasonable in the circumstances.

[1]Exhibit D2.

28I consider that this is one of the rare circumstances where the potential hardship to your daughter of you being imprisoned is at a level that should be considered exceptional and is a matter to be taken into account as a matter in mitigation.

29Ms Mynard also notes that you have expressed to her that you feel enormous guilt and shame about your offending and that you know you have caused hurt to many people.  You told her that you are disgusted in yourself and consider that you have compromised your values through your actions.  I have regard for these expressions of contrition in considering the weight to be placed upon remorse.

30Ms Mynard conducted testing that found you to be in the 'severe ranges of depression'.  I place some weight on this in that such a diagnosis would likely make imprisonment more burdensome for you than for someone without that diagnosis.

31Your counsel submitted on your behalf that I could rely upon the psychological report to conclude that you had some reduced moral culpability for your offending, consistent with limb one of Verdins.[2]  Mr de Vietri's submission was based on Ms Mynard's conclusion that you were suffering from post-traumatic stress disorder at the time of the offending.

[2]R v Verdins (2007) 16 VR 269 ('Verdins').

32Ms Mynard's conclusion was based upon the reporting provided by you to her about the circumstances in which you came to be committing these offences.  In summary, she contends that you suffered some PTSD initially as the result of your experiences in the abusive relationship with your daughter's father.  Ms Mynard was then told that the reason you came to offend in the manner outlined in the indictment was because:  'She was threatened by her colleague's brother, who was a drug user'.  

33You claimed to Ms Mynard that you, 'Had been threatened to perform the ongoing fraudulent behaviours but would not tell the authorities of the other party's identity for fear of retribution'.  

34She goes on to conclude that your previous PTSD symptoms made you more vulnerable to such an approach.  On this basis, your counsel contends, you are less morally culpable for your offending as a result of the PTSD diagnosis.

35Your counsel conceded that his submission must, by definition, require acceptance of your contentions to the psychologist about the circumstances in which you came to offend.  I note at this point that at no stage in the investigation or proceedings had there been any mention of your offending being induced by a threat until your report to the psychologist.  I further note that no mention of this was made when you made what amounted to a full confession to Commonwealth Bank investigators in 2013.  Your contention that your offending was at the behest of others, and that you in fact made no financial gain whatsoever because of the offending is not corroborated by any other evidence in the depositions.  Indeed, to the extent there is any evidence on the matter whatsoever, there is evidence of certain money taken from customer's accounts and going into your own account.

36The contention that this offending was only committed as a result of coercion and threats is a matter that, if proven, would amount to a substantial matter in mitigation.  I would regard such a matter as substantially reducing your moral culpability for this offending.  As a matter put in mitigation, it is for the defence to make it out on the balance of probabilities.

37There is no evidence on this matter beyond your statements to the psychologist. No other person has been charged in relation to this offending, nor is it suggested that others were not charged but were criminally involved.  I do not consider that this contention can be made out on the evidence to the requisite standard.  In those circumstances, I cannot act on that conclusion in the way suggested by counsel.  There is simply a paucity of evidence on the matter and that which exists, if anything, is inconsistent with that contention.

38As such I do not accept to the requisite standard that your moral culpability was reduced because of PTSD, as has been put.  However, that does not mean I have concluded beyond reasonable doubt that your claims were intentionally untruthful. Put simply, it is for you to prove a matter in mitigation on the balance of probabilities and I am not so satisfied.

39There is also other material going to the question of your moral culpability.  You were in a position of trust with your employer working at a bank.  You must have known full well the wrongfulness of misappropriating customer's funds.  Your culpability is made greater for the fact that you selected customers who were known to you and with whom you had a trusting relationship.  You used both this relationship and your knowledge of their vulnerabilities to target them for this offending.  Your dishonesty continued when first confronted by one of the victim's relatives.  It is greatly to your credit that you made what were effectively full admissions to the Commonwealth Bank investigators, but this does not diminish the fact that there was a high level of culpability revealed by your dishonesty.

Exceptional Family Hardship

40Mr de Vietri of counsel appeared on your behalf and tendered several documents[3] in order to outline the extent of your daughter Leyla's disability.  I have already noted that your circumstances are highly unusual in that there would be exceptional hardship that would befall your daughter were you to be imprisoned.

[3]Exhibits D3, D4, D5, D6, D7, D11, D12, D15, and D16.

Delay

41The other exceptional feature of this case is the inordinate length of time that has elapsed between the detection of your offences and the matter coming before this court.  You made a confession in 2013.  The matter was referred to the police in 2014.  It is remarkable that in those circumstances that it has taken seven years for the matter to conclude.

42Mr McKenry, on behalf of the prosecution, very sensibly conceded both the inordinate nature of the delay, and that it was not in any way your fault.  No explanation for what seems a bizarre level of police inaction over an extended period was provided.

43I take this inordinate delay into account in your favour in two ways.  First, in the seven years that have passed since the offending was detected, you have not reoffended.  Indeed you have continued to act as primary carer for your daughter, and in more recent times have engaged in vocational training.  It is very much to your credit that despite this matter hanging over you, you have reached a point whereby you are now employed in a new field and well-placed to re-establish a career.

44Second, I can infer that the fact of this matter remaining unresolved for so long as proven to be an emotional burden, and indeed a punishment, in and of itself.  I note from the psychological material that you have experienced anxiety over several matters related to these proceedings and their potential outcome.

Sentencing Principles

45You have pleaded guilty to these charges and you are entitled to have that fact taken into account in your favour, and I do so.  The community has, by your pleas of guilty, been spared the time and cost of a trial and witnesses have not been needed to give evidence upon your trial.  The utilitarian value of your plea of guilty is especially high given the detrimental impact that pandemic restrictions have had on the capacity for the court to list matters.

46I take into account your plea of guilty, in combination with your admissions to bank investigators and your direct expressions of contrition in the psychological report to indicate that you have genuine remorse for your actions.

47You have no prior criminal history nor anything subsequent.  Whilst the offending did proceed over a relatively lengthy period, you are entitled to the benefit of having been of otherwise good character both before and after this period.  You are unlikely to offend again.  Your prospects of rehabilitation are excellent.

48I have also had regard for current sentencing practices.  Your counsel very helpfully provided details of two County Court cases involving dishonesty.  Both the cases of Chapman[4] and Ross[5] were relevant comparisons in that they both involved the sentencing of people who had unlawfully obtained money from their employer in amounts like that taken by you.  I note that neither case had matters in mitigation of the magnitude of the delay and family hardship that are applicable here.  I note in both cases community corrections orders were imposed.

[4]DPP v Chapman [2016] VCC 231.

[5]DPP v Ross [2021] VCC 249.

49Mr de Vietri, on your behalf, submitted that it was appropriate in the circumstances of this case to similarly impose a community corrections order.

50Mr McKenry on behalf of the prosecution conceded that such a disposition was within the available range.

Sentence

51In all the circumstances and weighing these matters I am of the view that the imposition of a Community Corrections Order with a substantial number of work hours is appropriate.  You have been assessed and found to be suitable for such an order.

52What I am proposing to do at this stage is place you on a Community Corrections Order for a period of three years from today's date.

53Before I ask if you to consent to such an order being made, I have to tell you a little bit about the order, so you know what it means.

54The following core conditions apply to all Community Correction Orders:

(a)   You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment.

(b)   You must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee, during the period of the Order.

(c)   You must report to the Community Correction Centre at Cranbourne within two clear days of today.

(d)   You must notify the Secretary, or his or her nominee, of any change of address or employment within two clear working days after that change.

(e)   You must not leave Victoria except with the permission of the Secretary to the Department of Justice, or his or her nominee.

(f)    You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure you comply with the Order.

55There are other conditions attached to this Order, and they apply to you:

(a)   You have to perform 250 hours of unpaid community work over a period of two years as directed by the Regional Manager (s 48C). 

(b)   You must be under the supervision of a Community Corrections Officer for a period of three years.

(c)   You must undertake mental-health specific treatment and rehabilitation as directed by the Regional Manager (s 48D)

56I should advise you that if you contravene or breach that order by committing further offences you can be charged and a sentence of imprisonment is one of the options that can be imposed for that breach (s 83A(d)). 

57You can also be re-sentenced for the offences that are before me.  One of the options available includes a term of imprisonment (s 83A(s)).

58No committing any further offences that might incur a term of imprisonment over the next three years, otherwise you are back before the Court and you will be re-sentenced on the charges that are before me now. 

59I also advise you that if you fail to comply with any direction of the Secretary to the Department of Justice, that is a Community Corrections officer, as part of this order, a substantial fine can be imposed (s 83A(e) and A(f)). 

60Now having heard all that, Ms Sandoval, do you consent to the Community Corrections Order on the terms I have just outlined?

61OFFENDER:  I do consent, Your Honour Judge Hannebery.

62HIS HONOUR:  All right.  Now I should say that Community Corrections order is with conviction. 

63Pursuant to s 6AAA Sentencing Act 1991, had you pleaded not guilty to these charges and been found guilty of them, I would have imposed a period of imprisonment of 18 months with a 12 month non-parole period.

64The prosecution have made application for a compensation order for the amount of $113, 587.00 and I make that order.

65Is there anything further I needed to address? 

66MR MCKENRY:  No, Your Honour, those are the matters.  As Your Honour pleases. 

67HIS HONOUR:  Thank you.

68MR de VIETRI:  Your Honour, just one small detail.  I think Your Honour described Leyla's age as 17. 

69HIS HONOUR:  I thought I said 18? 

70MR de VIETRI:  Maybe I misheard it.  It is 18.

71HIS HONOUR:  Yes, okay. 

72MR de VIETRI:  Those are the matters, thank you, Your Honour. 

73HIS HONOUR:  Yes, I was meant to be saying 18, so thank you for that.  All right, but if that is all, thank you all for your assistance and I will adjourn the court now until 1 pm. 

74MR MCKENRY:  As Your Honour pleases.

- - -