Director of Public Prosecutions v Seamons

[2013] VCC 1951

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR CR-13-00255

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHELLE SEAMONS

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JUDGE:	HIS HONOUR JUDGE JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	2 December 2013
DATE OF SENTENCE:	2 December 2013
CASE MAY BE CITED AS:	DPP v Seamons
MEDIUM NEUTRAL CITATION:	[2013] VCC 1951

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Hannan	OPP
For the Accused	Dr M. Marich	Martich Legal Pty Ltd

HIS HONOUR: 

1Yet again the Court is called upon to deal with the consequences of the ubiquitous availability of gambling outlets in our society.  Yet again it is required to balance the community interest in reclamation of those who fall prey to the temporary allure of the spin or jingle jangle of the poker machine against the need to punish those who steal other's property to facilitate that ephemeral pleasure, and to deter others who are in a position to breach the trust of others to their own benefit.

2Yet again the Court is required to seek to vindicate the innocent victims of frauds perpetrated against them by trusted employees. 

3Michelle Leanne Seamons, you have pleaded guilty to 29 rolled up charges of theft.  The maximum penalty is ten years for each charge, totalling $936,086.

4The period counted by the charges is from February 2013 to June 2011.  The charges involved theft from four different entities, namely two individuals and two dental practices.  The total charges as set out in the schedules to the charges involve more than two thousand individual acts of dishonesty.

5The circumstances of the offending were set out in the Crown opening which was read in open court earlier today by the learned Crown prosecutor and I incorporate it by reference.  Essentially you were working as the practice manager of a dental practice known as the Melbourne City Dental Group and another practice that had been established by the two principal dentists, Dr Aziki, and Dr Wilkinson, and you were in a position of trust in that practice.

6You previously worked as a dental nurse with a practice that had been run by Dr Wilkinson and in your role as the dental administrator and practice manager you were responsible for rosters, paying wages, ordering supplies and paying suppliers and also conducting all business expenses, being responsible for paying the business expenses and compliance with the tax regime.

7In that business you obviously had access to the bank accounts that the business was operating, including the MYOB accounts.  The partners in the business found over the period of about 2009 to 2011 that they were not making any money, and in fact they had a meeting with you at one stage to discuss the possibility of closing the practice down because they had received a tax bill for $124,000.

8The reason why it was still outstanding was that you were responsible for paying it and you had siphoned off the money for your own gambling purposes.  In February 2011 there were arguments that you had been bullying staff and you were counselled about that, and eventually it got to the stage that on 15 June 2011 you sent them a text message saying that you had been unwell and you would not be calling in that day for work.

9It appeared that you then in the next couple of days made two attempts at suicide.  You saw your father, Mr Seamons, who has been in Court here to support you.  He talked to you, contacted the practice and after discussing the matter with you ascertained that you had in fact stolen about $150,000 from the business and he then contacted Dr Aziki and told him that you had gambled all the money away.

10Then there was an audit and subsequently you were the subject of an extensive record of interview with the police where they have identified that you had over this period of about eight years systematically pillaged money from the practice.

11The charges involved, as I say, a total matter of $936,085 and they involved $582,850 from the Melbourne City Dental Group, $152,697 from Dr Aziki, $164,352 from Dr Wilkinson and $36,178 from QV Dental, which is the practice that they established and subsequently had to close down.

12In the record of interview you admitted that you had stolen the money and you explained to the police that the way you had been able to cover your tracks was that you would siphon off cash which you would then put into poker machines at night and then alter the MYOB schedules so that it appears that the receipts covered the amounts recorded in the schedules.

13You were also able to divert money that was being paid to the practice by way of EFT and internet banking.  You explained to the police how you covered your tracks over that sustained period and you had gambled the money, you said, $2000 to $3000 a week and how you had also got behind in paying the practice's tax.

14You said in the course of the record of interview that there was not enough money in the account because of the money that you had taken.  You felt sorry, you hated yourself for what you had done.  You also said you had hurt people, hurt your family and also by the fact that you had tried to take your own life.

15Victim impact statements.  Three victim impact statements were tendered by the persons impacted by your conduct.  In the first by Dr Aziki he started by saying he finds it difficult to put into words what impact the theft and deception of you had had on his life as they were both significant and wide ranging.

16As he said, "The broad financial fact is that over ten years we have not managed to reduce the principal on our mortgage despite having a busy dental practice," and both him and his wife working part and full time.  He says effectively that his chances of retiring at the age of 65 are receding into the distance as a result of the stalling of the financial resources that they were attempting to put together that you really had siphoned off from the practice.

17He mentioned the fact that he had garnishee orders on his debts, the Tax Department had been on his back and as a result of the fact of the problems that he was having in the business that he had to dissolve that partnership.  He said the business, Melbourne City Dental Group, which you were entrusted to manage has since dissolved.

18The dissolution was not amicable with much distrust between all of the parties.  He concludes by saying the emotional side is harder to quantify, "Suffice to say that my more light hearted and trusting approach has turned to one of distrust and cynicism.  This has impacted very negatively on all my relationships, both professional and personal.

19It however eludes me to this day how one person who had shown so much appreciation, trust and loyalty by myself and my wife, something we should value highly, can betray us so profoundly and repeatedly on such a grand scale.

20His wife, Ms Barlow, has put in a victim impact statement effectively echoing what he has put, indicating that she so trusted you that you were her emergency contact person for her children at the crèche and you babysat them at some stage, and the fact that she had to increase her hours of work because of the financial problems in the business.

21She said, "The emotional and financial strain caused ongoing anxiety and I continue to worry about many aspects of my life and our future."  She is worried about future education of their children and how she has suffered physically and mentally from ongoing anxiety and panic attacks.  She ends by saying, "After all this time I cannot come to terms with the ruthlessness of this crime, the pain it has caused and the penalty that my family and I have and will continue to pay for."

22Dr Mirka Wilkinson, who was the partner in the business, has also put in a victim impact statement, and in a sense she echoes what the other two victim impact statements have said, how she has been diagnosed with high blood pressure as a result of the stress of everything.  She is a relatively recent arrival in Australia and she has felt enormous grief and hurt working so hard and getting effectively nowhere.  The worries to meet all financial obligations were enormous and never out of her mind.  The financial worries have brought lots of tension into her family life.  She is a single parent.  Her relationship has broken down and she is now trying to rebuild her life and her future and she does not have too many professional years left ahead of her.

23She says, "The financial loss I have experienced will not secure my remaining years as I wished and worked for."  She says she has a deep and profound sadness and great loss for the great part of her life.  Again she refers to the manipulation, deceit and trust, betrayal by you.

24From these victim impact statements it can be seen that this crime has had a substantial and continuing impact on Dr Aziki, his wife, Ms Barlow, and their former partner, Dr Wilkinson.  Their dreams in this country have been stalled, if not thwarted, by your gross and continuing breach of trust.

25Any sentence of the court cannot bring the money back.  It cannot retrieve the lost opportunities or make up for the lost time.  Your offending has had a rippling effect on them and their immediate family and caused financial and psychological hardship to each of them and that has got to be taken into account in the sentence of the court.

26The procedural history of the case.  You ceased work as I have indicated on 15 June and at that point your father advised the practice that you had stolen $150,000 which of course was an underestimate.  The matter was investigated by the police and you were interviewed.  You were then charged with numerous offences reflecting each transaction that had been verified.

27At the committal mention in the Magistrates' Court you pleaded guilty to a large number of charges at that committal mention, but you pleaded not guilty to other charges and you were committed for trial on those other charges.  The trial date was fixed at the first mention in this Court, but ultimately there were negotiations and you pleaded guilty to the plea indictment in August this year.

28Before that you intended to contest some 36 charges involving separate amounts and 94 charges involving the QV Dental Practice.  The matter was listed for trial on 5 May next year and after further negotiations, as I have indicated, it was resolved and you pleaded guilty on 12 August and the matter was adjourned for a plea to this date.

29I turn to your personal circumstances and they are set out in comprehensive detail in psychologist Mr McMullen's report which I incorporate by reference.  You are aged 40.  You are not in a relationship and you have no children.  Your upbringing was difficult in the sense that your parents separated when you were 14 and you have had little subsequent relationship with your mother.

30You have a good relationship, although relatively distant, with your brother.  You also have a good relationship with your father and he has really come to your rescue in the last two and a half years.  You left school in Year 11 and you moved straight into the workforce, so you clearly have had a good work ethic.

31You were establishing a professional occupation as a dental nurse and that is where you came into contact with Dr Wilkinson and then ultimately you were in the position where you betrayed their trust, and that led you to the position of practice manager.  According to your father, Mr Seamons, in his reference which I have taken into account it was in an early failed relationship that you became involved in gambling with the person that you were then in a relationship with.

32

That is really what led to this later offending.  Mr Reeves, psychologist, in his report, indicates, "It was evident from the history provided by Michelle that she had been exposed to a fragmented and emotionally unstable childhood with a strong likelihood of significant attachment disturbances associated with the emergence of social isolation, anxiety and a diminished sense of

self-worth.

33It is likely that this history was implicated in the subsequent emergence of her maladaptive coping patterns, including her gambling addiction." 

34Mr McMullen diagnoses you as having a major depressive disorder which is severe, recurrent with anxious distress and is severe too.  He said it is probable the condition developed during childhood as a result of mental abuse and rejection she experienced in the relationship with her mother and the insecurity she experienced when her father regularly left the family home.  Her condition was most likely exacerbated by a series of unsatisfactory intimate relationships.  Then he goes on to say depression is a potentially fatal illness with about two thirds of all the depressed patients contemplating suicide and approximately six per cent actually committing suicide.

35He then goes on to say about why you committed these offences.  He said, "When a person with a gambling disorder is gambling they are often in a disassociated state.  Time means nothing.  Their mind goes blank as they remain fixated on the poker machines and all responsibilities are forgotten.  It is this aspect of being detached and absent that is attractive to the addicted.  It is probable Ms Seamons used gambling as a counterproductive self-defeating means of escaping the adversity of symptoms associated with her depressive disorder.  Although not providing an excuse her gambling addiction was clearly the reason for her offending.  If she had not been addicted to gambling it is difficult to see that she would have engaged in criminal behaviour."

36He then says that your depression, anxiety and gambling addiction impaired your capacity to make appropriate judgments. 

37The Crown disputed that and I do not accept that and your counsel in a sense said that gambling provides the context for your offending, but not an excuse for it.

38I turn to your prospects for rehabilitation.  They were assessed in a comprehensive analysis as I have said by Mr McMullen as good and you have a low prospect of recidivism.  You have strong family support and I have taken into account a comprehensive reference from your father and your stepmother who has been your stepmother for the last 14 years.

39Importantly your stepmother says, "On a personal note I wish to attest to an attitudinal change in Michelle in that she has voiced to me that she wishes to live a truthful and honest life in the future, that she does not want to lie, cheat or do wrong by anyone ever again and that she is ashamed and mortified by her actions in the past.  To my knowledge, and I believe this to be true, Michelle has not gambled since July 2011 and nor do I believe she will in the future as she has received counselling regarding this.  Needless to say Michelle will continue to be given the love and support in the future as she has in the past by both myself and her father." 

40To a similar effect is a reference that I take into account from your father.  I have also taken into account another character reference from a close personal friend of yours, Rachael Lewis, who is in Court to support you, and she indicates that you have shown remorse for your actions, and also taken responsibility for your actions.

41Since this offending has come to light you have taken significant steps to address your depression by going to see Mr Reeves, who seems to have your depression and your gambling addiction under control by use of cognitive behavioural therapy and also medication prescribed by your GP.  You are on anti-depressant medication and anti-anxiety medication.

42Further you have moved to seek an alternative occupation.  Your counsel put that you would not be in a position to go again into a practice management type position after your release from prison.  That may be the case but there is no reason why you could not get back to being a dental nurse, but that is a matter for you.

43In the meantime you have taken action, although you are on a disability support pension, to undertake a number of courses with the Gippsland Community College, particularly in the harness racing occupational field as a stable hand and a driver and I have noted a very supportive reference from one of the teachers and mentors at the Gippsland Community College, Mr Des Hughes.

44In assessing your prospects of rehabilitation I have also taken into account that there are no prior convictions alleged against you and to date you have been a person of good character.  I have taken those matters and your prospects of rehabilitation into account in fixing a period after which you will be eligible for parole.

45I have taken into account all the other matters put by your counsel; your early plea of guilty and the fact that you pleaded guilty to the bulk of the charges at the committal mention, and given the number of charges it is not surprising it took some time to sort out all the charges.

46I have also taken into account the fact that the plea of guilty is of utilitarian value.  It has saved a trial.  There was no committal and it spared the complainants in this matter a cross-examination and participation in a trial.

47I am also satisfied that you are remorseful in terms of empathy for the victims, although obviously you are not in a position to repay them any money, but it is clear you have manifested your remorse to Mr Reeves and also to your father and stepmother as set out in their references.

48Sentencing submissions.  Your counsel accepted that there are significant aggravating factors here.  These include the breach of trust involved, the duration of the offending, some eight years, the number of individual acts of dishonesty, the quantum of money, $936,000 odd, the impact on the complainants that I have already referred to, their businesses, their business reputations, as well as the psychological stress that I have already referred to.

49I have also taken into account the other matters raised on the comprehensive plea by your counsel, including the matters set out in the reports of Mr McMullen and Mr Reeves, the fact that you are seeking to address your matters, that you are a person who has got an underlying depressive illness that you have obviously had for some time which is now being addressed with pharmacology and cognitive behavioural therapy.

50In sentencing you I take into account the impact of a sentence of imprisonment on you.  Mr McMullen does indicate that you are psychiatrically vulnerable, you are on anti-depressant medication and Mr McMullen indicates that you are at risk of a relapse and obviously you had a serious lapse immediately after these matters came to light that necessitated a four week admission to a psychiatric hospital.

51I have taken into account that you have used the time since that time to have counselling, abstain from gambling and with the assistance of Mr Reeves to address the underlying problems, as well as move forward with the support of your parents and family.  I have also taken into account that the period since June 2011 to date you have had this day hanging over your head.  No doubt that again has been a great burden on you.

52Purposes of sentencing.  The basic purposes for which a court may impose a sentence are punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community.  In sentencing I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victims, if any.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society. 

53Your offending here was a serious breach of trust, repetitive and extended over a long period of time of some eight years.  It involved two individual victims and two practices.  The amounts are substantial and it is clear that in each instance the loss of money is keenly felt by the victims.  In the case of the victims as I said it was clear that apart from the immediate financial impact of your dishonesty upon the businesses each of them has suffered the additional loss, both in financial and emotional terms.

54Both the two principals have quite frankly and candidly stated that it has pushed back their prospects of retiring and indeed retiring with financial security. It has affected their credit ratings and their reputations have been damaged.  Thefts by employees are pernicious, and particularly so in small businesses where levels of scrutiny are usually low and hence much reliance is placed on the integrity of trusted staff.

55Offending of this kind is difficult to detect.  The impact of theft on small business can also have, as it has in your case, quite deleterious consequences to the ongoing viability of the business.  General deterrence is a factor in sentencing here, while I accept that specific deterrence is of lesser weight here. 

56Denunciation is important.  The sentence of the court must announce that this type of breach of trust is just totally unacceptable.  You stole to use money on gambling and for lifestyle.  I do not accept the submission of your counsel that it went only for gambling, because you have a relatively new car and you were on a salary of $50,000 odd.  You were travelling to Tasmania at one stage every month or so to see someone that you were in a relationship with, so it did facilitate your lifestyle to some extent.

57There has been no restitution made and I suspect that no restitution is really possible.  Gambling is not offered as an excuse for your behaviour but rather as an explanation.  In your case it cannot moderate your culpability.

58In response to my request, Mr Hannan said that immediate custodial sentence of between three and four years' imprisonment with a non-parole period of between 18 months and two years was called for.  Your counsel properly accepted that this was a proper sentencing range and I am satisfied that it is in accordance with current sentencing practices which I must take into account.

59I propose to impose an aggregate sentence.  I propose to impose an aggregate sentence because I am satisfied that the offending constitutes a series of offences of the same or similar character.  In any event, each of the charges is a rolled-up charge which recognise that very fact.  The decision to lay separate charges based on financial years is not of much consequence.  There could just as easily have been one charge for each of the four individual victims.

60In my view, this sentencing arises out of continuous course of conduct, separated only by the fact that there were different principles involved and different practices. 

61SENTENCE. Ms Simmons, you are convicted on each charge and sentenced to an aggregate term of 42 months' imprisonment. I direct that you serve a period of two years' imprisonment before being eligible for parole. Pursuant to s.6AAA of the Sentencing Act, I declare that, had you not pleaded guilty, I would have sentenced you to a term of imprisonment of five years' imprisonment with a non-parole period of three years and four months.

62The prosecution has sought compensation orders and I make the compensation orders sought and note that they were not opposed.

63Are there any other matters, Mr Hannan?

64MR HANNAN:  No, Your Honour.

65HIS HONOUR:  Yes.

66MS MARICH:  As Your Honour pleases.

67HIS HONOUR:  Yes.  I thank counsel for their assistance in the plea.

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