Director of Public Prosecutions v Shiel

[2016] VCC 1218

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01488

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL SHIEL

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	19 August 2016
CASE MAY BE CITED AS:	DPP v Shiel
MEDIUM NEUTRAL CITATION:	[2016] VCC 1218

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Kenna
For the Accused	Mr J. Saunders

Pages 1 - 10

 

 

HIS HONOUR: 

1Daniel Shiel, stay seated for the time being.  You have pleaded guilty to an indictment charging you with five offences of obtaining financial advantage by deception and one offence of attempting to obtain financial advantage by deception.  The offences occurred between 23 December 2013 and 23 January 2015.  You have also admitted a number of prior court appearances and convictions. 

2The prosecution tendered and read a Crown opening on the plea which is Exhibit A. I incorporate that document into these reasons for sentence in its entirety.  The circumstances arose from your employment by AMP Ltd as a retail claims assessor between September 2011 and January 2015. 

3You had primary responsibility to assess claims from customers under policies issued for life insurance, total and permanent disability, trauma cover and income protection. 

4You were authorised to assess claims of less than $100,000.  You also had delegation to authorise payment of those claims.  Any claims above that amount were to be assessed by the claims manager. 

5On 23 January 2015, one of the payment administrators noticed an anomaly and investigations revealed that you had committed the offence, the subject of Charge 6 on the indictment of attempting to obtain $146,606.70. 

6You provided false documents to support that claim.  And when those facts became apparent, AMP launched an internal fraud investigation which revealed a total of 51 payments being made by AMP between 23 January 2013 and 16 January 2015 to your ANZ bank account, resulting in a total loss to the AMP of $1,448,030.18. 

7The Charges 1 to 5 inclusive on the indictment contain rolled up charges reflecting the transactions to which I have just referred. The offending conduct involves four offences - that is Charges 2, 3, 4 and 5 - which are continuing criminal enterprise offences under s.6H of the Sentencing Act.

8In that, they include deceptions of $50,000 or more.  You fall to be sentenced on those offences having regard to double the statutory maximum penalty for the offence of obtaining a financial advantage by deception.  The statutory maximum being ten years' imprisonment. 

9Therefore, I am required to sentence you on the basis that the maximum term of imprisonment in respect of those offence is 20 years' imprisonment. 

10The maximum sentence for the offence subject of Charge 1 is ten years' imprisonment and for Charge 6 of attempting to obtain a financial advantage by deception, five years' imprisonment.

11I am sorry.  I should amend that.  The offence subject of Charge 6 is also a continuing criminal enterprise offence and therefore, it attracts a maximum term of imprisonment of ten years. 

12Turning to matters personal to you, your counsel provided me with an outline of submissions on plea which is Exhibit 1, along with a report of Mr Ian Joblin, psychologist, dated 13 May 2016, which is Exhibit 2.  He also provided me with two other reports from Mr Joblin, dated respectively 10 January 2004 and
27 June 2007. 

13Those reports - all of them - are very useful in outlining your family history, your employment history, your relationship history and indeed, the relationship between your gambling history and your criminal offending. 

14I note that amongst the criminal offences of which you have previously been convicted and sentenced, there are offences involving armed robbery in 2004 and various offences of obtaining property by deception. 

15Clearly, the offences of dishonesty are of relevance.  Although, as I say,
Mr Joblan helpfully traces the link between your family history, your relationship history and your employment history and your gambling history with the offending conduct over the period between 2001 and the present day - or at least, when these offences were committed.

16Mr Joblan points out that you are a person of above average intelligence; that you have shown a capacity for work; that you have suffered from a background of which he characterises as unstable and that you had a long-term relationship with a young lady from about the year 2000, as I understand it, through to 2013.  

17That relationship with Renee ended in 2013, prior to the offending conduct subject to the indictment.  Following that, a period of relative stability came to an end. You resorted to your previous interest in gambling and incurred losses which in turn resulted in you resorting to the dishonesty that is reflected in the indictment.

18There does not seem to be any link between use of alcohol or misuse of drugs and your offending conduct.  There is clearly - it seems to me to be - a link between your gambling and your offending conduct.  It is necessary for me to consider the extent which that impacts upon the sentencing discretion that I have to exercise in this case. 

19I will come back to that in a moment.  I note that I have also been provided with a letter of reference from Heath Whiteside and a letter of reference from Megan Benson. 

20I have no doubt that you have many admirable characteristics and that without the reverses that you had in your personal life and without the gambling problem that you have that you may well have been able to continue with a productive working life and indeed to have and developed a satisfactory career. 

21I am at a loss to understand how it was that with your offending history you were able to obtain a position with the AMP society that entrusted you with a disbursement of funds up to $100,000 and placed you in a position where you were able to exploit your position to commit these offences. 

22However, be that as it may, I do not attribute any blame for that upon you.  I do not know the circumstances in which you obtained your job. But it seems to me to be unfortunate that you were ever able to obtain access to the funds that were obtained by you in the way set out in the prosecution opening. 

23Your counsel, indeed, the prosecution have referred me to authorities which bear upon the relevance of gambling addiction to sentencing in cases like this.  One of those as R v Grossi [2008] 23 VR 500 and in that case, at paragraph 56, Redlich JA analyses the factors which bear upon the assessment of relevance of gambling addiction to the sentencing discretion.

24I accept entirely Mr Joblin's opinion that during the period covered by the indictment, you had become a pathological gambler. The Court of Appeal judgment in Grossi, accepted that that condition can enliven the principles in the well-known case of Verdins. 

25The question remains as to the extent which those principles apply to reduce the sentence that might otherwise have been appropriate.  His Honour,
Redlich JA, said at paragraph 56:

"The relevance of the disorder to the sentence to be imposed, is then to be assessed in accordance with the principles restated in Verdins.  That assessment will generally lead to the conclusion that the presence of a gambling addiction should not, on that ground alone, result in any appreciable moderation of sentence.  There are a number of reasons why that will be so.  First, in most cases, the nature and severity of the symptoms of the disorder, considered in conjunction with the type and circumstances of the offending, will not warrant a reduction in moral culpability or any moderation of general deterrence.  Second, it will frequently be the case that crimes associated with gambling addiction will have been repeated and extended over a protracted period."

26And I think it is fair to say that that clearly is the case here.  The offending occurred over a period of about 13 months and involved 51 or thereabouts transactions. 

"Third, in cases involving dishonesty, the crimes will commonly be sophisticated, devious, and the result of careful planning."

27I have not sought to assess the agree of sophistication but your methodology here did involve some careful planning.  It was devious and there was a measure of sophistication attached to it.

"Fourth, the gravity of such offences, if there is a breach of trust or confidence, will commonly attract an increased penalty making such offences more appropriate vehicles for general deterrence."

28Clearly you were in serious breach of trust in committing these offences. 

"Fifth, when offences of this nature are committed over extended periods, the prominent hypothesis will be that the offender has had a degree of choice which they have continued to exercise as to how they finance their addiction."

29Again, that clearly applies in your case.  Perhaps I should note in your case also that the reports of Mr Joblan in both 2007 and 2004, to which I have referred, note the apparent link or relationship with between your gambling habit and your offending conduct in connection with the matters upon which you are faced in court at the time that those reports were written. 

30He had opined in those reports that your gambling had not then reached the stage of being a pathological gambling addiction, but he did reach that conclusion in his report in 2016, which is Exhibit 2. 

31You had been aware of the opinions he expressed and the links that he drew between your gambling and your previous offending; and you ought to have appreciated the risks attendant upon your continued interest in gambling even though it appears that you had been able to exercise a measure of control through the early period of your employment with the AMP society and noting, of course, that this offending conduct seems to have occurred after the breakup of your long-term relationship with Renee.

32Nevertheless, you had been very clearly alerted to the problem that you had with gambling and the previous links to serious offending conduct.  Redlich JA went on in paragraph 56 to say:

"This has often provided a reason for a general reluctance to temper the weight given to general deterrence or to reduce moral culpability because an offender has found it difficult to control their gambling obsession.  Finally, and perhaps most importantly, the nexus of the addiction to the crime will often be unsubstantiated.  The disorder will not generally be directly connected to the commission of the crime, the addiction providing only a motive and explanation for its commission.  Hence, by contrast to a mental condition that impairs an offender’s judgment at the time of the offence, such addiction will generally be viewed as only indirectly responsible for the offending conduct."

33I take the view that the addiction was not directly connected with the commission of these crimes and that the addiction provided only a motive and explanation for the commission of these offences.  Indeed, it was indirectly responsible rather than directly responsible. 

34Your conduct was premeditated, calculated and systematic.  You repeatedly exercise the choice to reoffend over a lengthy period and in my opinion, that does indeed bear upon the weight to be given to your addiction in the sentencing exercise.

35That does not say it is irrelevant.  If this offending had been to finance a high lifestyle or for wanton greed, then that may be seen to have aggravated the offending conduct. 

36This case is not one such. It seems to me that your gambling addiction is part of the context of the offending which is relevant to the overall sentencing discretion, although I do not find that it reduces to any significant degree either your moral culpability or the need for general deterrence.  Clearly, there is an ongoing need to deter you from further offending and in my opinion also, to denounce your offending conduct. 

37As to your prospects of rehabilitation, you will have to address your gambling addiction.  It may be that you will be able to commence that process whilst serving your sentence, but unless you do it successfully either during the course of your sentence or afterwards, perhaps during the period when you are on parole, then you are vulnerable, it seems to me, to committing further offences of this kind. 

38It could become a blight on the rest of your life unless you deal with it.  To some extent, it has already been a blight on your life.  It will be difficult if not impossible for you to maintain good personal relationships with anybody.  It will be difficult for you to live other than an isolated existence. 

39You are still a relatively young man, 36. I cannot rate your prospects of rehabilitation at this stage as being good. But you certainly have the intelligence and the capacity to work, and one hopes that if you take the opportunities that come your way to deal with your compulsive gambling problem then your prospects of rehabilitation will increase immeasurably. 

40You have pleaded guilty to the offences.  You pleaded at an early stage and you are to be given full credit for not just the utilitarian benefit of your pleas of guilty saving the state the cost of a trial and the witnesses the inconvenience of attending the trial.  But it seems to me that the pleas of guilty and the cooperation with the authorities is reflective of your remorse for these offences. 

41You have not committed any offences since the offending conduct.  You have had these matters hanging over your head for a year and a half now, and no doubt that will have been an added stress upon you.  You lost the relationship with the young lady who worked with the AMP, but she has at least offered you the support of her friendship since these offences came to light. 

42Doing the best I can to balance the competing sentencing considerations.  I am now ready to impose sentence upon you.  Would you please stand?

43On Charge 1 of obtaining financial advantage by deception involving a sum of money just short of $500,000, I regard that as a serious offence of its kind, noting that the maximum term of imprisonment for that offence is ten years, rather than 20.  I convict you and sentence you to imprisonment for a period of three years. 

44On Charge 2, involving obtaining financial advantage by deception of a sum of money totalling just over $280,000, I convict you and sentence you to imprisonment for a period of three years and six months. 

45On Charge 3 of obtaining financial advantage by deception in relation to a total sum of three hundred and thirty-seven thousand-odd dollars, I convict you and sentence you to imprisonment for a period of three years and six months. 

46On Charge 4 of obtaining financial advantage by deception in the sum of $100,000, I convict you and sentence you to imprisonment for a period of three years.

47On Charge 5 of obtaining a financial advantage by deception in relation to a sum totalling nearly $234,000, I convict you and sentence you to imprisonment for a period of three years and six months.

48On Charge 6 of attempting to obtain a financial advantage by deception in relation to a sum of $146,606.70, I convict you and sentence you to imprisonment for a period of 20 months. 

49I treat the sentence of three years and six months on Charge 2 as the base sentence and I order that six months of the sentence on Charge 1 and nine months on each of the sentences on Charges 3, 4 and 5 be served cumulatively upon one another and upon the sentence of three years and six months on Charge 2. 

50That makes the total effective sentence of six years and three months' imprisonment and I order that you serve a period of four years before you become eligible for parole. 

51But for your pleas of guilty, I would have sentenced you to imprisonment for a period of eight years and four months with a non-parole period of five years and six months. 

52I think we have seven days pre-sentence detention, is that right?

53COUNSEL:  Yes, Your Honour.

54HIS HONOUR:  Yes. 

55I declare the seven days pre-sentence detention as time to be reckoned as served on the sentences that I have imposed and deducted administratively from that sentence.  I order that that fact be noted in the records of the court. 

56I make the order for the provision of a forensic sample in accordance with the draft which I have been provided.  And that will require you - or you will be requested to provide a scraping from the inside of your mouth by an authorised officer. 

57If you comply with that request, that will be the end of the matter.  If however, you fail or refuse to provide that sample in that way, the officer will be authorised to take blood. 

58Are there any other matters that I need to order?

59MR KENNA:  Your Honour, above - you were mentioning the continuing criminal enterprise offences.

60HIS HONOUR:  Yes.

61MR KENNA:  Is there any need to officially say that they are recorded?

62HIS HONOUR:  Well, I shall say that in respect of each of Charges 2 to 6 inclusive, I sentence the offender on the basis that those offences are continuing criminal enterprise offences.

63MR KENNA:  As Your Honour pleases.

64MR SAUNDERS:  As Your Honour pleases.

65HIS HONOUR:  Yes, thank you.

66MR SAUNDERS:  Can I just approach the dock at this stage, Your Honour?

67HIS HONOUR:  Sorry?

68MR SAUNDERS:  Can I just approach the dock, Your Honour?

69HIS HONOUR:  Yes.

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