Director of Public Prosecutions v Sharp

[2021] VCC 1433

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT GEELONG

CRIMINAL JURISDICTION

CR 21-01388

DIRECTOR OF PUBLIC PROSECUTIONS

v

ADRIAN SHARP

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JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Geelong
DATE OF HEARING:	23 September 2021
DATE OF SENTENCE:	28 September 2021
CASE MAY BE CITED AS:	DPP v Sharp
MEDIUM NEUTRAL CITATION:	[2021] VCC 1433

REASONS FOR SENTENCE

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Subject:

Catchwords:  Obtaining financial advantage by Deception

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Mandie	Office of Public Prosecutions
For the Accused	Mr J. McGarvie	Stary Law

HIS HONOUR:

1Adrian John Sharp, you have pleaded guilty to one charge of obtaining a financial advantage by deception.  This charge is a course of conduct charge relating to 187 false invoices supplied by you to your employer, Barwon Health, over a period of 10 years.  As a result of lodging those false invoices, you obtained $425,075 dishonestly.

2The facts of your offending are set out in Exhibit A, the prosecution opening.
I was advised by your counsel that I could treat that document as an agreed statement of fact.  I incorporated into these reasons for sentence, and sentence you on the basis of the facts set out therein.  Your offending was sophisticated, well-planned, and in gross breach of the trust your employer had in you.  You offended for over 10 years, and only ceased when you became aware that you were about to be exposed.

3You obtained legal advice, confessed to the police, made a formal record of interview, and you subsequently made full restitutions to Barwon Health from your available superannuation payout.  You pleaded guilty at the earliest opportunity have no prior criminal history. 

4Obtaining financial advantage by deception has a maximum penalty of 10 years imprisonment, and your offending represents a serious example of that offence.

5Your personal history is set out in Exhibit 2, the psychological assessment of Dr Barth.  You were born in Tasmania in 1959 and grew up there in a family of two boys and two girls.  You and your siblings were adopted, you did not discover this fact until you were a teenager.  Your parents are said to have been caring, but strict.  Emotional and personal issues were rarely discussed, and you were somewhat detached from your family.  You completed your high school certificate and commenced employment in a hotel in Hobart.  You obtained a diploma in hotel management.  You moved to Melbourne and found employment at the Steamworks whilst completing a certificate of catering at William Angliss Institute.

6You worked at St Andrews Hospital for four years before joining St George's Health Service in Kew.  You completed a Graduate Diploma in Health Administration, then moved to St Vincent's Mercy Private Hospital as environmental services manager, where you worked for two years.  You then started at Barwon Health in Geelong as an environmental services manager.  This involved you controlling the cleaning, pest control, waste disposal, laundry and food for numerous facilities.  Your work history as I have set out, is effectively continuous and impressive.  You worked for Barwon Health for
19 years, until you resigned when your offending came to light.

7You commenced your long-term relationship with the mother of your children, Julie Perten 40 years ago.  You have two children aged 27 and 25.  References provided by your family, Exhibit 5, paint a glowing picture of you as a father and a partner.  You are described as a considerate, compassionate, and respectful man.  You have always looked after your family and are said to be dedicated to helping others.  You have worked hard at work and to support your immediate extended families.  Your partner describes you as a workaholic.  Your family have indicated ongoing support for you and say that you are extremely remorseful for your offending.  I take the contents of your family references into account in sentencing you. 

8Over your life, you have experienced several episodes of psychological disturbance.  You experienced distress when you discovered you were adopted, when your parents died in 2002 and 2004, and for a period in 2006.  Because of your heavy work demands at Barwon Health, you experienced work stress, together with anxiety and panic attacks, due to your ongoing continuous fraudulent conduct.  When your offending was discovered, you had an intense emotional reaction and planned suicide. 

9Subsequent medical and psychological intervention saw you medicated and being better able to deal with your emotions.  You continue to exhibit a moderate degree of distress, but you do not attract a diagnosis of a psychological disorder.

10In addition, you suffer from a number of medical issues, they are set out in Exhibit 8, the report of Dr Trudy Clarke.  Significantly, your long-term use of cigarettes has left you with severe chronic obstruction pulmonary disease and emphysema.  Although you have been double vaccinated for COVID-19, your underlying health issues make you vulnerable to COVID and would be an issue for you in prison.  Your emotional fragility would also be likely to be exacerbated by a prison sentence, and I take that vulnerability into account in sentencing you.

11Other character references were tendered on your plea.  Scott Randell,
Exhibit 7, asserts that you are deeply remorseful and apologetic for your actions.  He attests to your hard work and volunteering your time on weekends.

12Dr Rudolph Gasser, Exhibit 9, worked with you and treated you on occasions.  He states that you demonstrated dedication and expertise in your work.  Although you were less than frank with Dr Gasser in July of 2020, when you knew your offending was about to be discovered, Dr Gasser says he was totally surprised and shocked by your criminal conduct, and that you apologised to him for, 'The absolute breach of trust and friendship by committing these offences'.

13David Vivien, Exhibit 6, had a business relationship with you for 14 years.  He describes you as genuine, reliable, and dedicated to your job.  He says that you have expressed deep remorse and regret for your actions.  I take the character reference material into account in sentencing you, although the authorities make it clear that character evidence has less weight in offences for fraudulent matters such as yours.

14Mr McGarvie, who appeared upon your plea, acknowledged that usually offending such as yours would see an immediate term of imprisonment imposed, but he submitted your case was the unusual exception.  He relied upon a number of matters in support of this submission.  One, your level of cooperation.  You approached police and disclosed your offending over the
10-year period.  Because the accounting system at Barwon Health had changed, documentation for the period 2010 to 2013 was not contained in the contemporary Barwon Health accounting system.  Mr McGarvie submitted your disclosure of offending in the first four years enliven the principles in R v Doran 2005 VSCA 271.  In that case, AJ Buchanan with whom the other justices agreed, said at paragraph 14,

'Most importantly, however, the applicant quite voluntarily without any pressure from any authorities, provided the prosecution with all the evidence necessary to convict him of the majority of the crimes.  In my view, the consequences of the appellant's admissions are that they reduce the need for a sentence to personally deter the appellant, they increase the prospects of his successful rehabilitation, and they demonstrate genuine remorse for his actions.  I would add that I think that it is important that the appellant should receive a demonstrable discount of his sentence, in order to encourage others to make like admissions'.

15In that case, Doran had confessed to sexual offences the police would not have known about, but for his confession.  Here, you made a full confession to the police before any offence was reported to the police by Barwon Health.  However, you were aware that your offending was about to be laid bare by Barwon Health, so you obtained legal advice and went to the police.  I do not detract from the discount you are entitled to and will receive because of your cooperation with the authorities. 

16However, you knew the police were about to be informed of your offending.  You are in a different situation to Doran.  Further, although you admitted offending back to 2010, and the records of Barwon Health only recorded six years of false invoice, as discussed with your counsel on your plea, it is clear that an examination of the current accounting system records would have ultimately led to inquiries about and discovery of the offences envisaged or evidenced by the old Barwon Health accounting system.

17You will receive a reduction in sentence to recognise your cooperation in assistance.  I accept that it demonstrates remorse and enhances your prospects of rehabilitation.  I do not accept that your offending for the first four years would not have been discovered, but for your admissions.  You are to be commended for your cooperation and I take that into account in sentencing you.

18Secondly, your plea of guilty.  I take into account your plea of guilty.  I accept that it was made at the earliest of opportunities.  In addition to saving the community the time and expense of a criminal trial, your plea evidence is remorse for your offending.  You are entitled to a reduction to sentence, for the sentence that I would otherwise impose for your offending to reflect that plea of guilty.  I am obliged to state the effect of that reduction, and I will return to that subsequently. 

19The reduction in sentence to reflect your plea of guilty is of increased value because of the current COVID-19 pandemic.  The legal system is struggling because of that pandemic and your plea has increased significance and value because of its facilitation of the course of justice.

20Thirdly, your restitution.  I take into account in your favour the full restitution that you have made to Barwon Health.  Although an offender cannot avoid punishment by making full restitution, the fact that you have done so demonstrates your good prospects for rehabilitation and mitigates the sentence that I am about to impose. 

21Mr McGarvie also relied upon your physical health and emotional issues, and as I said earlier in these sentencing remarks, I take your physical health into account, and the likely exacerbation of your anxiety and depression in custody.  I accept that you fall to be sentenced as a 62-year-old man with good prospects of rehabilitation.  You are unlikely to offend again, and I accept you have genuine remorse for your offending.  You have endured some extra-curial punishment, with local publicity and as a result the loss of respect and employment in the community.

22There are, therefore, significant matters that mitigate your offending.  However, that offending was as I said, well-planned, continuous for 10 years, a gross breach of trust, and generated significant financial gain.  In my view, a term of imprisonment actually served is required to be imposed, to give proper effect of principles of general deterrence, denunciation, and just punishment.  I have substantially reduced that term of imprisonment to reflect the matters in mitigation to which I have referred.

23I have considered whether it is open to the court to impose a combination sentence of imprisonment and a Community Corrections Order.  I can only impose such a sentence if the custodial sentence is less than 12 months duration.  Again, in my view the offending is too serious for such a disposition.

24The sentence of the court is on the one charge of obtaining financial advantage by deception, you are sentenced to be imprisoned for two years and three months.  I order that you serve one year and three months of that sentence before being eligible for parole.

25Pursuant to s6AAA of the Sentencing Act I indicate that but for your plea of guilty, I would have imposed a term of imprisonment of four years with a non-parole period of two years and nine months.

26Any other matters, Ms Mandie?

27MS MANDIE:  No, Your Honour.  Thank you, Your Honour.

28HIS HONOUR:  All right.  Would you remove Mr Sharp, please. 
I will adjourn the court until when, tomorrow morning at 10.30.

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