Director of Public Prosecutions v Shao
[2023] VCC 564
•5 April 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication | |
AT Melbourne
CRIMINAL JURISDICTION
CR 21-01136
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MEINA SHAO |
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JUDGE: | HER HONOUR JUDGE KARAPANAGIOTIDIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 March 2023 | |
DATE OF SENTENCE: | 5 April 2023 | |
CASE MAY BE CITED AS: | DPP v Shao | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 564 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentencing
Catchwords: Obtaining property by deception – Obtaining financial advantage by deception – Guilty plea – Worboyes – Covid-19 pandemic – Delay – Very good prospects of rehabilitation – Restitution.
Legislation Cited: ss 5, 5(2F)(a) Sentencing Act 1991 (Vic).
Cases Cited:Apted v The Queen [2021] VSCA 151; Boulton v The Queen [2014] VSCA 342; DPP v Zerihun [2023] VCC 170; Leimonitis v The Queen [2018] VSCA 198; Poursanidis v The Queen [2016] VSCA 164; R v Cockerell [2001] VSCA 239; R v Tiburcy [2006] VSCA 244; R v Verdins [2007] VSCA 102; Worboyes v The Queen [2021] VSCA 169;
Sentence:Convicted and sentenced to a three year Community Corrections Order.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | D. Plummer | The Office of Public Prosecutions |
| For the Accused | A. Sharpley | Fitzroy Legal Service |
HER HONOUR:
1Meina Shao, you have pleaded guilty to one charge of obtaining property by deception and one charge of obtaining financial advantage by deception. The maximum penalty for each charge is ten years' imprisonment.
Circumstances of the offending
2The full circumstances of your offending is outlined in the prosecution opening of 28 March 2023, marked as Exhibit A.
3You were born in October 1975, and at the time of the offending you were aged between 39 and 41.
4Vehicle Development Corporate Pty Ltd (VDC) is a company that operates a business based in Coolaroo. VDC also has two sister companies that operate out of the same complex, namely American Performance Pty Ltd (AP) and Diverse Freight Logistics Pty Ltd (DLF). Mr Darren Waugh is the director of all three companies. Around the time of the allegations between 40 and 50 persons were employed by the companies.
5From April 2014, you were employed by VDC as a bookkeeper. You have also worked in that capacity for the other companies, AP and DLF. You remained employed there until you resigned in 2018.
6Between 2014 and 2017, while employed by VDC, you obtained by deception over $232,000 through a combination of cheques and bank transfers from VDC accounts.
7Mr Waugh regularly travelled and because he was not always in the office, he would sign blank cheque and keep them in a filing cabinet in an office onsite.
8Between 22 September 2014 and 17 August 2017, you caused 72 cheques to be banked in respect of which VDC was the payer and you were the payee. The total amount obtained by this method was $112,270.63.
9Three additional cheques were banked between September and October 2014 in which VDC was the payer and your husband was the payee. The total amount obtained by this method was $4,756.18.
10None of the above cheques were part of your employment entitlements or moneys you were otherwise entitled to receive.
11In the accounting systems used by VDC you made entries as the bookkeeper. You falsely described the moneys in relation to the cheques as having gone out to external organisations. You also shredded or disposed of the physical records of the cheques. Your name on the physical cheques was only later uncovered when records were obtained from banks. Your entry of false information in the systems and the destruction of physical records was designed to cover your criminal acts.
12
A table of the relevant cheques is outlined in the prosecution opening at
paragraph 11.
13Between 7 July 2014 and 13 October 2016, you caused 80 transfers to be sent from VDC accounts to bank accounts that you controlled.
14You utilised the accounting systems of the company and made entries within them to make it appear as if the payees of these moneys were external organisations. You altered the BSB and account number of the payee to one of your four accounts. The false entries were designed to cover your criminal acts.
15A table of the relevant bank transfers is outlined in the prosecution opening at paragraph 14.
16In early 2018, a self-contractor accountant, Natasha Kovacevic, was engaged for a five-week period to assist with recordkeeping issues at VDC. Her work was focussed on processes and recordkeeping regarding the upstairs office workers at VDC, which included you. Ms Kovacevic noticed a number of irregularities or anomalies as detailed at paragraph 16 of the opening. She confronted you about the missing documents and you became defensive and agitated. In response to an email concerning shredded records, you wrote, there was no way you would ever do anything to hurt the business.
17On 9 March 2018, you disclosed a workplace sexual harassment matter to a lawyer who is engaged by VDC. Your allegations included that a fellow employee had exposed himself to you in the car park and had also sent you a number of sexual messages, which you showed the lawyer. You indicated that text messages from the alleged offender had been received for over two years and that you had previously complained about it and were told that it would be dealt with. A police report was made, but you indicated that you did not wish to make a formal complaint. The director of the company Mr Waugh, then terminated the alleged offender's employment and VDC organised counselling for you. Shortly after that incident you provided your resignation from VDC.
18In January 2019, Mr Waugh requested Ms Kovacevic do an in-depth analysis of the company's accounts as he suspected there had been fraud. This in turn uncovered your offending. A spreadsheet was created showing where moneys had been sent to you instead of suppliers or transferred directly to your accounts. Suppliers were contacted and confirmed that they had not received money. This spreadsheet was later provided to police together with the completed fraud assessment package in around August 2019. The financial records were then analysed by the Forensic Accounting Unit at Victoria Police.
19On 14 October 2019, police arrested you and executed a search warrant on your address.
20You were interviewed by police and made a number of comments as outlined in the prosecution opening. In brief, you alleged that you had reported the sexual harassment to Mr Waugh years ago and that he had authorised payments to be made to you as a form of compensation, the agreement being that you would not take big amounts at a time and they should add up to roughly $100,000.
Victim impact
21Ms Shao your offending has had far-reaching and serious consequences. In his victim impact statement, Mr Waugh describes, 'the massive financial stress and loss of trust caused by your offending’ and the 'immense personal hurt and disrespect to all concerned’. Your offending has been financially crippling and has impacted all VDC staff. He quotes,
Everybody previously identified within this impact statement are victims of Meina Shao's pathological lying, personal hurt and financial loss resulting from the extensive fraud and theft committed by her. The impact of this crime will never dissipate.
22In sentencing you I take into account the impact of your offending.
Gravity of the offending
23The two charges you have pleaded guilty to, are course of conduct charges. In simple terms I must therefore impose a sentence that reflects the totality of your offending.[1] Orthodox sentencing principles apply and the maximum penalty remains the yardstick by which the gravity of your offending is to be assessed.[2]
[1] Sentencing Act 1991 (Vic), s5(2F)(a).
[2] Poursanidis v The Queen [2016] VSCA 164, [11]-[13].
24I assess your offending as serious and your moral culpability as high. I have taken into account a range of factors including the following: the total offending period is over three years, from 7 July 2014 to 17 August 2017; it involved a relatively large amount of money, approximately $230,000; your offending was protracted and involved a number of separate and distinct acts as outlined in the tables relating to each charge; and it was deliberate and calculated and involved some attempts on your part to conceal it. Your offending also involved a gross breach of trust given your position.
25As already detailed, the impact of your offending has been significant and it does not appear that your offending was motivated by need, but rather greed. You told psychologist, Jeff Cummins, that you had used some of the money to pay your son's school fees, to pay bills and you also sent some money to your mother overseas.
26Quite properly, your Counsel, Ms Sharpley accepted that your offending is serious but described it as relatively unsophisticated as the funds were clearly and easily traceable to your own personal bank accounts.
27Your Counsel also referred, by way of providing some context, to your deteriorating circumstances during the course of your employment and the sexual harassment you had experienced. As noted in the prosecution opening you confided in the lawyer of the company and told him that your co-worker had exposed himself to you at work and sent sexual and unwanted text messages to you. In the lawyers statement he refers to noticing a change in your demeanour starting at around 2017. You also told him that you were very concerned that by coming forward to report the incident you felt unsafe and feared that you'd suffer from repercussions from your co-worker. The co-worker was questioned by management and HR and his employment, as I have already noted, was subsequently terminated.
28It is not disputed that you suffered sexual harassment in the workplace. In your interview with police, you told them that it started from when you commenced working for the company. Further, you claimed that you had told Mr Waugh about it and that the payments you were making to yourself were effectively approved by him. By your plea of guilty, you no longer maintain this position and I do not accept this explanation. Nor do I accept there to have been any kind of causal nexus between the sexual harassment and your offending. On the material before me, I am unable to make a positive finding as to precisely how long you were subjected to sexual harassment in the workplace. Notwithstanding, I do accept that you were sexually harassed and that it has had serious and long-lasting consequences for you. You separated from your husband, a much older traditional Chinese man, because you feared you would be blamed for what had occurred and you felt ashamed and worthless. I also accept that this experience has traumatised you and contributed to your depression and anxiety. You were entitled to feel safe in your workplace and to not be subjected to sexual harassment and abuse. However, Ms Shao, this does not justify or excuse your offending in any way. Also, I make no findings that VDC through its management acted inappropriately in its handling of this matter. However, I do consider that your experience of sexual harassment in the workplace has caused you to feel some grievance towards VDC and has coloured your perception of the organisation. It has contributed to your presentation as noted by Mr Cummins, 'as a stressed, distressed and depressed woman, who regards herself as being a victim.' I accept your Counsel's submission that it has likely complicated or impeded the development of insight or remorse on your part for your offending.
Procedural history
29As for the chronology in this matter, I have already referred to some relevant dates. In August 2019, police were contacted in relation to your offending. In October 2019, you were arrested and interviewed. In May 2021, you were committed for trial. In May 2022, your case was listed for a sentence indication hearing, which failed to resolve the matter. On this occasion the court expressed concern as to your apparent lack of insight and acceptance of responsibility as suggested by your failure to engage in any counselling or to make efforts towards compensating your victim.
30In February 2023, you were arraigned and entered a plea of guilty. On 28 March 2023 your matter proceeded before me as a plea hearing.
Plea of guilty
31While your plea of guilty is not an early one, I consider that it still entitles you to a substantial discount in sentence. Your plea of guilty is important for its utilitarian value and there will be a greater amelioration of sentence in accordance with the Worboyes[3] considerations. Your plea of guilty indicates your willingness to facilitate the course of justice and to accept responsibility for your offending.
[3] Worboyes v The Queen [2021] VSCA 169.
Remorse and insight
32As your counsel submitted at your plea hearing your insight is 'in its infancy'. It is difficult to find that your plea of guilty itself is indicative of remorse given your various statements over time, seeking to justify your offending. I do accept that your insight and the recognition of the wrongfulness of your actions is developing and that there have been some significant shifts over the last 12 months. Importantly, you have disclosed your offending to your sister. You had previously reported to Mr Cummins that you had not told her, 'as a result [of] feeling shocked, confused, embarrassed and ashamed regarding the allegations.' You also stated that within your family, 'it's acceptable to share positive things, but not “bad” things’.
33Also, as of around mid-2022, you have made efforts to engage in treatment for your mental health. You previously told Mr Cummins that although you considered you needed mental health treatment, you were not accessing such treatment and it was noted that you appeared hesitant, perhaps out of a sense of embarrassment and shame. Psychologist, Anne Silbereisen, confirmed that you are presently attending upon her for treatment and that you have achieved some benefit from therapy. She considers you require ongoing psychological therapy for treatment of post-traumatic stress and depression.
Restitution
34You have made full restitution to VDC which is a relevant factor in mitigation. At the previous indication hearing in May of 2022, you were encouraged to make such efforts. You were recently given a substantial portion of money from your sister to make the payment. You have also managed to pay the significant remaining amount yourself. Over the last 12 months or so, you have put aside from every fortnightly pay, approximately $1,200, that is, more than half of your income with the balance largely going to your child support and rent payments. I accept that the loss suffered by VDC as an organisation and its people cannot simply be measured in monetary terms. I also accept that restitution was not made at an early stage and that I should proceed cautiously in my consideration of this matter and the weight to be given to it. In all the circumstances, I do accept that the making of full restitution is a significant mitigating factor in your case.
Delay
35Your offending concluded around five and a half years ago. There has been a significant delay in this matter with some disruptions resulting from the impact of the Covid-19 pandemic. Since being interviewed in October 2019, the matter has caused you a significant degree of distress and anxiety. You described to Mr Cummins that you were overwhelmed by your legal situation and engage in negative, ruminative thinking. Your treating psychologist, Ms Silbereisen, says that,
Her depression and suicidality is fluctuating. Her mental and emotional state's vacillating between accepting her devastating predicament and extreme shame. At times…she feels as though she can be strong and face the outcome of the court hearings with courage. …At other times she feels overcome with feelings of confusion and shame and feels deeply and suicidally depressed.
36During the period you have been on bail there have been no allegations of further offending. You have continued to work. You have recently disclosed the offending to family and you have made efforts to engage in treatment.
37The justification for taking delay into account as a mitigating factor, rests upon the twin considerations of rehabilitation and fairness as the higher Courts have previous expressed.[4] First and perhaps foremost where there's been a relatively lengthy process of rehabilitation since the offending, being a process in which the community has a vested interest, the sentence should not jeopardise the continued development of this process, but should be tailored to ensure as much as possible that the offender has the opportunity to complete the process of rehabilitation. Secondly, from the point of view with fairness to the offender, the sentence should reflect the fact that the matter has been hanging over his or her head for some time, thereby keeping the offender in a state of suspense as to what will happen to him or her. I accept that the delay has significantly impacted your mental health.
[4] R v Cockerell [2001] VSCA 239 per Chernov JA; R v Tiburcy [2006] VSCA 244.
38Consistent with these principles, I take into account the delay in your case as an important consideration.
Personal circumstances
39As for your personal circumstances Ms Shao, you are now 47 years of age. You were born in Shanghai, China. Your parents and sister remain living there. Your father worked as a mechanic and factory worker and your mother worked as a shop assistant. Your twin sister works as a school teacher and vice principal.
40You apparently progressed well throughout education and completed high school to the equivalent of Year 12. Following this you underwent further study before commencing work in a factory and it is while working there that you met your now ex-husband. He was an Australian resident and had returned to China on holiday.
41In 2001, you relocated and moved to Melbourne on a partner visa and married later that year. On your arrival to Australia, you had very limited English skills, you underwent English language classes and commenced working as a shop assistant in a grocery store.
42In 2006, you gave birth to your son. You spent the next three years at home taking care of him. While he was fortunately a healthy child, he struggled with severe allergies.
43When your child was three years of age, you returned to study at NMIT TAFE. By this stage your English language skills were sufficient to allow you to study in English and you underwent and completed a two-year advanced diploma in accounting, graduating in 2010.
44Prior to your employment at VDC you worked in accounts payable at a bedding manufacturer.
45During your employment at VDC your marriage broke down in the context that I have already referred to. After a period of separation under the same roof in 2017, you moved to your own accommodation.
46Your son lives with your ex-husband. You have regular contact with him and you remain an involved and present parent. You have not re-partnered.
47Following your resignation from VDC, you obtained employment as an administration manager and you remain currently employed on a full-time basis.
48You have no prior criminal history or subsequent matters.
Mental health
49Mr Cummins assessed you on 21 March 2022. He considered that you presented as a ‘significantly traumatised person’. He diagnosed you as suffering from a major depressive disorder which was of at least moderate severity and associated with features of anxiety and traumatisation. While you reported a history indicative of complex PTSD, he was unable to make such a diagnosis based on your presenting symptoms. He referred to your statements that if incarcerated you would take your life and suggested that, if necessary, prison authorities should be advised of your severe mental health problems and of the real probability that you may choose to take your life whilst in custody.
50He further stated,
Given her belief in her views regarding her alleged offending, coupled with the fact she does not present as engaging and delusional thinking, it is my opinion it would be more onerous for her to serve a custodial sentence which will inevitably lead to a further deterioration of her mental health symptoms.
51A letter of support from Ms Silvereisen confirms that you are attending upon her for treatment. She considers that you suffer from post-traumatic stress disorder and depression of a severe nature with suicidal thinking. While she explores some of these concepts in her letter, there are limitations to her opinions as recognised by your Counsel at the plea hearing.
52I also note that you recently reported to the Forensicare practitioner that you are currently prescribed and compliant with anti-depressant medication Sertraline. While you experience some unwelcome side effects from the medication you recognise its overall greater benefits.
53Your Counsel Ms Sharpley submitted that the final two limbs of Verdins[5] are applicable in your case. Namely, that prison would represent an additional burden and would weigh more heavily on you than a person with unimpaired mental health. She placed reliance on Mr Cummins' report and opinions in this regard. She also submitted that there was a risk that imprisonment will have a significant adverse effect on you inevitably leading to a further deterioration of your mental health symptoms.
[5] R v Verdins [2007] VSCA 102.
54The prosecution do not accept that limbs five or six of Verdins are enlivened in your case. Although at the plea hearing they accepted that there was some material to support limb five. It was also noted that Mr Cummins' report was now somewhat dated. As discussed at the plea hearing, in broad terms the opinion of Mr Cummins and the manner in which you were presenting at that time is consistent with the more recent letter of support of Ms Silverson. That is, you continue to experience distress and depression at severe levels with suicidal thinking which fluctuates. On the evidence before me, I am prepared to accept that the existence of your conditions may mean that a term of imprisonment will weigh more heavily on you than it would on a person in normal health. In the circumstances, taking into account your current functionality and other matters as referred to by the prosecutor, Mr Plummer today, I give this moderate weight. I accept the prosecutor's submission also that there is insufficient material to make a finding that there is a serious risk of imprisonment having a significant adverse effect on your mental health.
Prospects of rehabilitation
55I accept that you present Ms Shao, with very good and favourable prospects of rehabilitation. In my assessment, I have taken into account the circumstances and lengthy period of your offending. However, I consider that there are powerful factors in your case that support a finding of very good or excellent prospects including the following:
(a) You are a mature woman with no prior criminal history and no subsequent matters;
(b) You are a person who has always been employed except for the period of time when your son was a baby;
(c) I accept that you have experienced a high level of shame regarding the offending;
(d) You are now in psychological treatment and you are obtaining benefit from this treatment; and
(e) Significantly, you have disclosed the offending to your sister and you are fortunate enough to have her support. At first, she was, 'shocked, angry, worried and sad' to learn of your offending, but she considers that you have learnt a 'big lesson’ from this.
Sentencing principles
56Ms Shao, the basis purpose for which a Court may impose a sentence of punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. I accept Mr Plummer's submission that denunciation and just punishment are very important sentencing purposes and that in your circumstances less weight can be given to specific deterrence, though it remains a relevant consideration.
57I take into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991 (Vic) where relevant in your case. Further, I have taken into account the principles of parsimony, proportionality and totality.
58Both Counsel have referred me to comparable cases in support of their respective submissions. The prosecutor, Mr Plummer submits that the only appropriate sentence is one structured by way of a head sentence with a non-parole period. Your Counsel submits that a Community Corrections Order (CCO) is capable of reflecting and balancing all relevant sentencing purposes. I have given close consideration to the submissions of counsel and the cases referred to. I have also had regard to other cases that offer further insights into current sentencing practices for these offences. The current sentencing practices are of course but one factor to consider and each case ultimately turns on its own facts and circumstances.
59
Mr Plummer referred to the cases of Leimonitis v The Queen[6] and
Apted v The Queen[7]. The former case involved a similar amount and the appellant was sentenced to a period of one year and nine months' imprisonment with a
non-parole period of 12 months’ imprisonment. Although she was able to call upon a range of mitigating factors, the Court of Appeal dismissed the appeal and considered the sentence imposed to be within range. There are some other similarities and differences in that case, including that Worboyes considerations were not relevant given its date. The case of Apted involved a much greater amount of money, approximately four times the quantum involved in your case. Quantum is not the sole or determinative factor in sentencing and there were some other similarities in this case and yours, including a long delay and lack of any prior criminal history.
[6] Leimonitis v The Queen [2018] VSCA 198.
60Your Counsel referred to the case of DPP v Zerihun[8] of this court where the offender was sentenced to a CCO for three charges of obtaining financial advantage by deception for a total quantum of over $200,000. The sentencing judge made the following observation which I adopt here at paragraph 59 of her reasons:
There are certainly many instances where dishonesty offending involving either greater or lesser amounts and over a relatively lengthy period involving persistent breaches of trust have resulted in
non-custodial dispositions. In many of these cases the offender had no relevant prior criminal history, had pleaded guilty and was found to have excellent prospects of rehabilitation.
[8] DPP v Zerihun [2023] VCC 170.
61The sentencing judge then referred to a number of cases that fell within this category, where non-custodial dispositions were imposed. There were also examples where serious dishonesty offending involving similar amounts have resulted in custodial sentences. On your behalf Ms Sharpley referred to these cases in support of her submission that, in an appropriate case and subject to the available mitigating factors, a non-custodial outcome for offending of your gravity is open and within range.
62
I had you assessed for a CCO and you were assessed as suitable and as of low risk of general offending. Also, Forensicare provided an assessment recommending ongoing assessment or treatment for your mental health be made a condition of any CCO. It was noted that you presented as,
'an emotionally vulnerable woman experiencing stress, distress, shame and embarrassment secondary to your offending behaviour'.
63Ms Shao synthesising all relevant matters, including the seriousness of your offending and taking into account the powerful mitigating circumstances in your case, I consider that a CCO is the just and appropriate sentence. Such an order is intrinsically punitive, and depending on the length of the order and the nature and extent of the conditions imposed, is capable of being highly punitive.
64A CCO also entails substantial general and specific deterrence and rehabilitation and I refer to the guideline judgment of Boulton v The Queen[9]. In all of the circumstances of your case, I do not consider that the retributive and deterrence purposes of punishment can only be adequately met through the imposition of an immediate term of imprisonment.
[9] Boulton v The Queen [2014] VSCA 342.
[7] Apted v The Queen [2021] VSCA 151.
Sentence
65So now, Ms Shao, if I can ask you to please stand.
66On Charges 1 and 2, you are convicted and sentenced to a Community Corrections Order of three years' duration, with the following conditions.
(a) Supervision
(b) Treatment and rehabilitation for mental health
(c) Community work in the amount of 260 hours and I offset 80 hours against treatment.
67
Pursuant to s6AAA but for your plea of guilty I can indicate that I would have imposed a term of some two years and three months’ imprisonment, with a
non-parole period of one year and eight months’ imprisonment.
68Now that CCO commences today and within two working days, you will need to attend at Reservoir Corrections. In addition to the conditions that I have imposed there are core conditions, basic conditions that attach to every CCO, Ms Shao.
69You must comply with any obligation or requirement. You must report as I have indicated within two days. You must notify Corrections of any change of address or employment within two clear working days. You must not leave Victoria except with the permission of Corrections. And you must otherwise follow the lawful directions of Corrections. Those conditions are in addition to the others I have ordered. I have not ordered program conditions, and in that respect, I have been guided by the recommendation of Corrections that she just wouldn't be suitable.
70MR PLUMMER: Yes, Your Honour.
71HER HONOUR: Ms Shao, you will breach this order if, you do not comply with its conditions, or you commit another offence punishable by imprisonment over the course of those three years, commencing today. If you breach the order then you return to Court, you'll be dealt with for the breach and potentially re-sentenced on the original charges and potentially face imprisonment. Do you understand?
72OFFENDER: (Through Interpreter) Yes, I understand, Your Honour.
73HER HONOUR: Ms Shao, you must prioritise this order. All right. I'll just have a look at this paperwork and then Ms Sharpley if either you or your instructor would like to approach Ms Shao, go through the conditions, I've largely done that, and have her sign it.
74MS SHARPLEY: Thank you, Your Honour.
75HER HONOUR: All right, is there anything further, Mr Plummer?
76MR PLUMMER: No, Your Honour.
77HER HONOUR: All right, Ms Sharpley?
78MS SHARPLEY: No, Your Honour.
79MR PLUMMER: Your Honour pleases.
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